Harris v. Baker et al

Filing 7

OPINION MEMORANDUM AND ORDER:IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in forma pauperis [Doc. #5] is GRANTED. IT IS FURTHER ORDERED that plaintiff shall pay an initial partial filing fee of $9.48 within thirty (30) days from the date of this Order. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the petition, because the petition is legally frivolous and fails to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B). A separate Order of Dismissal shall accompany this Memorandum and Order. ( Initial Partial Filing Fee due by 5/24/2013.). Signed by District Judge Henry E. Autrey on 4/24/2013. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

JIM HARRIS, JR.,
Petitioner,
v.
LISA BAKER, et al.,
Respondents.

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No. 1:13CV26 LMB

OPINION, MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Jim Harris, Jr. (registration
no. 45474) for leave to commence this action without payment of the required filing
fee. For the reasons stated below, the Court finds that plaintiff does not have
sufficient funds to pay the entire filing fee, and therefore, the motion will be granted
and plaintiff will be assessed an initial partial filing fee of $9.48. See 28 U.S.C. §
1915(b)(1). Furthermore, based upon a review of the petition for a writ of mandamus,
the Court finds that this action should be dismissed pursuant to 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 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. See 28
U.S.C. § 1915(b)(1). 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. See 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, until the filing fee is fully
paid. Id.
Plaintiff has submitted an affidavit and a certified copy of his prison account
statement for the six-month period immediately preceding the submission of his
petition. See 28 U.S.C. § 1915(a)(1),(2). A review of plaintiff's account statement
indicates an average monthly deposit of $47.42, and an average monthly account
balance of $3.35. Plaintiff has insufficient funds to pay the entire filing fee.
Accordingly, the Court will assess an initial partial filing fee of $9.48, which is 20
percent of plaintiff's average monthly deposit.

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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 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. See 28
U.S.C. § 1915(b)(1). 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. See 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, until the filing fee is fully
paid. Id.
28 U.S.C. § 1915(e)
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court must dismiss a pleading 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 from a defendant who is immune
from such relief. An action is frivolous if it "lacks an arguable basis in either law or
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fact." Neitzke v. Williams, 490 U.S. 319, 328 (1989). An action is malicious if it is
undertaken for the purpose of harassing the named defendants and not for the purpose
of vindicating a cognizable right. Spencer v. Rhodes, 656 F. Supp. 458, 461-63
(E.D.N.C. 1987), aff'd 826 F.2d 1059 (4th Cir. 1987). An action fails to state a claim
upon which relief can be granted if it does not plead “enough facts to state a claim to
relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,570
(2007).
Moreover, in reviewing a pro se pleading under § 1915(e)(2)(B), the Court
must give the petition 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 (1992).
The Petition
Petitioner seeks a writ of mandamus pursuant to 28 U.S.C. § 1651 against
Missouri Protection and Advocacy Service employees, Lisa Baker and Shawn DeLayola. Petitioner states that he seeks an order from this Court requiring respondents
to respond to his previously-submitted requests for a "copy of [a] file," which he
claims he needs to complete the filing of a civil rights claim.
Discussion
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Petitioner's petition for a writ of mandamus is legally frivolous. This Court is
authorized to issue writs of mandamus or other extraordinary writs only in aid of its
jurisdiction, either existing or potential. See 28 U.S.C.A. § 1651(a); Middlebrooks
v. Thirteenth Judicial Dist. Circuit Court, Union County, 323 F.2d 485, 486 (8th Cir.
1963). The actions of the named respondents in the instant case are not within the
jurisdiction of this Court. See Middlebrooks, 323 F.2d at 486; Veneri v. Circuit Court
of Gasconade Co., 528 F.Supp. 496, 498 (E.D. Mo. 1981)(federal courts have no
superintending control over and are without authority to issue writ of mandamus to
direct state court or its judicial officers in performing duties).
For these reasons, the instant action will be dismissed under § 1915(e)(2)(B).
Accordingly,
IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in
forma pauperis [Doc. #5] is GRANTED.
IT IS FURTHER ORDERED that plaintiff shall pay an initial partial filing
fee of $9.48 within thirty (30) days from the date of this Order. Plaintiff is instructed
to make his remittance payable to "Clerk, United States District Court," and to
include upon it: (1) his name; (2) his prison registration number; (3) the case number;
and (4) that the remittance is for an original proceeding.

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IT IS FURTHER ORDERED that the Clerk shall not issue process or cause
process to issue upon the petition, because the petition is legally frivolous and fails
to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B).
A separate Order of Dismissal shall accompany this Memorandum and Order.
Dated this 24th day of April, 2013.

UNITED STATES DISTRICT JUDGE

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