United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, Jr, UNITED STATES DISTRICT JUDGE.
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
U.S.C. § 1915(b)(1)
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.
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.
Standard on Initial Review
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
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).
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.
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. (Docket No. 1 at 3). He further states
that this occurred "without a lawyer" and that
"[a]ll defendants denied [him] a lawyer."
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
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