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Ervin v. 34Th Judicial Circuit Court

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

January 13, 2020

DAVID WESLEY ERVIN, Plaintiff,
v.
34TH JUDICIAL CIRCUIT COURT, et al, Defendants.

          MEMORANDUM AND ORDER

          STEPHEN N. LIMBAUGH, Jr, UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on the motion of plaintiff David Wesley Ervin for leave to commence this civil action without prepayment of the required filing fee. (Docket No. 3). 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 $4.11. See 28 U.S.C. § 1915(b)(1). Additionally, for the reasons discussed below, the Court will dismiss this action without prejudice.

         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 to proceed in forma pauperis, plaintiff has submitted a certified inmate account statement. (Docket No. 4). The account statement shows an average monthly deposit of $20.56. The Court will therefore assess an initial partial filing fee of $4.11, 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 plaintiffs 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 who is currently incarcerated at the Eastern Reception, Diagnostic and Correctional Center in Bonne Terre, Missouri. He brings this action pursuant to 42 U.S.C. § 1983. His complaint names the following defendants: the 34th Judicial Circuit Court; Judge Joshua Underwood; Judge Reeves; Andrew Lawson; Amy Pryor; and Josh Grubmeyers. Judge Underwood is sued in both his individual and official capacities. (Docket No. 1 at 3). Plaintiff does not indicate the capacity in which he is suing Judge Reeves, Lawson, Pryor, or Grubmeyers.

         Plaintiff states that on June 25, 2019, in State of Missouri v. Ervin, No. 18 NM-CR01096-01 (34th Cir., New Madrid County), he was sentenced to ten years' imprisonment by the 34thJudicial Circuit Court of New Madrid County.[1] (Docket No. 1 at 3). He further states that this occurred "without a lawyer" and that "[a]ll defendants denied [him] a lawyer."

         In a memorandum attached to the complaint, plaintiff further explains that after he bonded out of jail, he was told that he was no longer entitled to a public defender. (Docket No. 1-3). However, plaintiff states that the bond money was not his. After he bonded out, plaintiff states that the court issued three more warrants for him: two for tampering, and one for driving while revoked. When he was taken into custody his bond was set at $200, 000. However, "they still denied [him] a lawyer," and he remained in jail for a few months, going to court every two weeks. Plaintiff claims he was never given a hearing to show that he did not have the money for a lawyer. He also never said he wanted to be his own lawyer.

         Plaintiff asserts that his ten year sentence was for selling methamphetamines, when all he did was sell "salt to the cop." (Docket No. 1 at 5). He alleges that if he had had ...


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