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Miller v. Kutz

United States District Court, E.D. Missouri, Southeastern Division

October 28, 2019

HERBERT E. MILLER, Plaintiff,
v.
JARED W. KUTZ, et al., Defendants.

          MEMORANDUM AND ORDER

          CATHERINE D. PERRY, UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on the motion of plaintiff Herbert E. Miller for leave to commence this civil action without prepayment of the required filing fee. (Docket No. 2). Having reviewed the motion and the financial information submitted in support, the Court has determined that plaintiff lacks sufficient funds to pay the entire filing fee, and will assess an initial partial filing fee of $30.09. See 28 U.S.C. § 1915(b)(1). Additionally, for the reasons discussed below, this action will be dismissed for failure to state a claim. See 28 U.S.C. § 1915(e)(2)(B).

         28 U.S.C. § 1915(b)(1)

         Pursuant to 28 U.S.C. § 1915(b)(1), a prisoner bringing a civil action in forma pauperis is required to pay the full amount of the filing fee. If the prisoner has insufficient funds in his or her prison account to pay the entire fee, the Court must assess and, when funds exist, collect an initial partial filing fee of 20 percent of the greater of (1) the average monthly deposits in the prisoner's account, or (2) the average monthly balance in the prisoner's account for the prior six-month period. After payment of the initial partial filing fee, the prisoner is required to make monthly payments of 20 percent of the preceding month's income credited to the prisoner's account. 28 U.S.C. § 1915(b)(2). The agency having custody of the prisoner will forward these monthly payments to the Clerk of Court each time the amount in the prisoner's account exceeds $10.00, until the filing fee is fully paid. Id.

         In support of his motion for leave to proceed in forma pauperis, plaintiff submitted a certified copy of his inmate account statement. (Docket No. 3). The certified inmate account statement shows an average monthly deposit of $150.45. The Court will therefore assess an initial partial filing fee of $30.09, which is 20 percent of plaintiff's average monthly deposit.

         Legal Standard on Initial Review

         Under 28 U.S.C. § 1915(e)(2), the Court is required to dismiss a complaint filed in forma pauperis if it is frivolous, malicious, or fails to state a claim upon which relief can be granted. To state a claim under 42 U.S.C. § 1983, a plaintiff must demonstrate a plausible claim for relief, which is more than a “mere possibility of misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678. Determining whether a complaint states a plausible claim for relief is a context-specific task that requires the reviewing court to draw upon judicial experience and common sense. Id. at 679. The court must “accept as true the facts alleged, but not legal conclusions or threadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Barton v. Taber, 820 F.3d 958, 964 (8th Cir. 2016). See also Brown v. Green Tree Servicing LLC, 820 F.3d 371, 372-73 (8th Cir. 2016) (stating that court must accept factual allegations in complaint as true, but is not required to “accept as true any legal conclusion couched as a factual allegation”).

         When reviewing a pro se complaint under § 1915(e)(2), the Court must give it the benefit of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). A “liberal construction” means that if the essence of an allegation is discernible, the district court should construe the plaintiff's complaint in a way that permits his or her claim to be considered within the proper legal framework. Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015). However, even pro se complaints are required to allege facts which, if true, state a claim for relief as a matter of law. Martin v. Aubuchon, 623 F.2d 1282, 1286 (8th Cir. 1980). See also Stone v. Harry, 364 F.3d 912, 914-15 (8thCir. 2004) (stating that federal courts are not required to “assume facts that are not alleged, just because an additional factual allegation would have formed a stronger complaint”). In addition, affording a pro se complaint the benefit of a liberal construction does not mean that procedural rules in ordinary civil litigation must be interpreted so as to excuse mistakes by those who proceed without counsel. See McNeil v. United States, 508 U.S. 106, 113 (1993).

         The Complaint

         Plaintiff is a pro se litigant currently incarcerated at the Northeast Correctional Center in Bowling Green, Missouri. He brings this action pursuant to 42 U.S.C. § 1983. (Docket No. 1-1 at 1). He names the following individuals as defendants: Jared W. Kutz; Jay P. Wengert; Jim Sutterer; Carl Leuckel, Jr.; and John Doe. (Docket No. 1 at 1). Defendants are sued in both their individual and official capacities. (Docket No. 1-1 at 1).

         Plaintiff states that he was appointed by Governor Mel Carnahan as Perry County's head coroner in 1995. Later, he was elected to that position. He served as the head coroner for Perry County from 1995 until 2017.

         Plaintiff asserts that defendants Kutz, Wengert, Sutterer, and Leuckel are members of the Perry County Board of Commissioners. Specifically, Kutz is the Clerk; Wengert is the First District Commissioner; Sutterer is the Second District Commissioner; and Leuckel is the Presiding Commissioner. Defendant Doe is purported to be the Director of the First State Community Bank.

         Plaintiff accuses defendants of colluding together to commit “the crimes” of illegally taking his “property and money without just cause.” He asserts these crimes took place over a ten year period, and amounted to “deliberate indifference” towards his “living needs and subsequent life conditions.” Plaintiff also claims that defendants' activities constituted a “scheme of racketeering.”

         Plaintiff alleges that in 1995, the previous County Clerk of Perry County, Randy Taylor, told him that he was “not entitled to hospitalization or retirement insurance.” (Docket No. 1-1 at 2). Defendant Kutz told him the same thing in 2014, 2015, 2016, and 2017. Plaintiff states that he worked as the Perry County Coroner for twenty-two years, and that he worked eight hours a day, seven days a week. ...


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