Floyd et al v. Missouri, State of et al

Filing 4

MEMORANDUM AND ORDER re: 2 MOTION for Leave to Proceed in forma pauperis filed by Plaintiff Richard LeRoy Floyd motion is GRANTED. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the complaint because the complaint is legally frivolous or fails to state a claim upon which relief can be granted, or both. An appropriate Order of Dismissal shall accompany this Memorandum and Order. Signed by Honorable Jean C. Hamilton on 10/24/08. (CSG)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI SOUTHEASTERN DIVISION RICHARD LEROY FLOYD, Plaintiff(s), v. STATE OF MISSOURI, et al., Defendant(s). ) ) ) ) ) ) ) ) )

No. 1:08CV152 LMB

MEMORANDUM AND ORDER This matter is before the Court upon the motion of Richard LeRoy Floyd for leave to commence this action without prepayment of the filing fee pursuant to 28 U.S.C. § 1915. Upon consideration of the financial information provided with the motion, the Court finds that plaintiff is financially unable to pay any portion of the filing fee. As a result, plaintiff will be granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Additionally, the Court has reviewed the complaint and will dismiss it pursuant to 28 U.S.C. § 1915(e)(2)(B) because it is legally frivolous. 28 U.S.C. § 1915(e) Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court may dismiss a complaint filed in forma pauperis if the action is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief against a defendant who is immune from such relief. An action is frivolous if "it lacks an arguable basis in either law or in fact."

Neitzke v. Williams, 490 U.S. 319, 328 (1989). An action fails to state a claim upon which relief can be granted if does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2007). In reviewing a pro se complaint under § 1915(e)(2)(B), the Court must give the complaint the benefit of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). The Court must also weigh all factual allegations in favor of the plaintiff, unless the facts alleged are clearly baseless. Denton v. Hernandez, 504 U.S. 25, 32-33 (1992); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The Complaint The complaint consists of nothing more than a rambling diatribe about what plaintiff believes to be the problems resulting from the separation of church and state in America. The complaint is legally frivolous because it is vague and fails to allege any facts, which if proved, would afford a basis for granting relief. As a result, the complaint will be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B). Accordingly, IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [Doc. #2] is GRANTED.

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IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the complaint because the complaint is legally frivolous or fails to state a claim upon which relief can be granted, or both. An appropriate Order of Dismissal shall accompany this Memorandum and Order. Dated this 24th Day of October, 2008.

/s/ Jean C. Hamiton UNITED STATES DISTRICT JUDGE

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