Bice v. Cotner

Filing 4

MEMORANDUM AND ORDER re: 2 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff Gary Dee Bice. IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [Doc. #2] is GRANTED. IT IS FURTHE R ORDERED that the plaintiff shall pay an initial filing fee of $5.08 within thirty (30) days of the date of this Order. Plaintiff is instructed to make his remittance payable to "Clerk, United States District Court," and to include up on it: (1) his name; (2) his prison registration number; (3) the case number; and (4) that the remittance is for an original proceeding. IT IS FURTHER ORDERED that this action is DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B) and for lack of su bject matter jurisdiction under Fed.R.Civ.P.12(h)(3). An Order of Dismissal will accompany this Memorandum and Order. (Initial Partial Filing Fee due by 10/30/2014.) Signed by District Judge Stephen N. Limbaugh, Jr on 9/30/14. (CSG) Modified on 9/29/2014 (CSG).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
GARY DEE BICE,
Plaintiff,
v.
ANDREA COTNER,
Defendant.

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No. 1:14CV134 SNLJ

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Gary Dee Bice (registration
no.177348), an inmate at Southeast Correctional Center (“SECC”), 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 will assess an initial
partial filing fee of $5.08. See 28 U.S.C. § 1915(b)(1). Furthermore, based upon a review of the
complaint, the Court finds that the complaint should be dismissed pursuant to 28 U.S.C. §
1915(e)(2)(B) and for lack of subject matter jurisdiction under Fed.R.Civ.P.12(h)(3).
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 sixmonth 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, 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 complaint. A review of
plaintiff's account indicates an average monthly deposit of $25.42, and an average monthly
balance of $0.03. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the
Court will assess an initial partial filing fee of $5.08, which is 20 percent of plaintiff's average
monthly deposit.
28 U.S.C. § 1915(e)
Pursuant to 28 U.S.C. ' 1915(e)(2)(B), the Court must 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 from a defendant who is immune from such relief. An action is
frivolous if it Alacks an arguable basis in either law or fact.@ Neitzke v. Williams, 490 U.S. 319,
328 (1989); Denton v. Hernandez, 504 U.S. 25, 31 (1992). 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). A complaint fails to state a claim if it does not plead
Aenough facts to state a claim to relief that is plausible on its face.@ Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
The Complaint
Plaintiff, an inmate at SECC, brings this action pursuant to 42 U.S.C. § 1983 alleging
violations of his civil rights. He asserts that defendant Andrea Cotner has taken his money from
him during his incarceration. Plaintiff has not identified Ms. Cotner’s title, or whether he knew
Ms. Cotner from his incarceration or before. However, plaintiff states in his “Statement of

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Claim” section of his complaint that Ms. Cotner “got stuff in [his] last name and. . .she would go
to the ATM and get all my money out and we are not married.” Such pleading leaves the Court
to surmise that Ms. Cotner was personally known to plaintiff prior to his incarceration.
Discussion
Section 1983 imposes liability on government actors acting under color of state law. 42
U.S.C. ' 1983. As noted above, it appears that Ms. Cotner is not a state actor, but rather
someone plaintiff has acquaintance with outside of the prison system.
APrivate actors may incur section 1983 liability only if they are willing participants in a
joint action with public servants acting under color of state law.@ Johnson v. Outboard Marine
Corp., 172 F.3d 531, 536 (8th Cir.1999). To state a claim against a private actor under ' 1983, a
plaintiff “must establish, at the very least, an agreement or meeting of the minds between the
private and state actors, and a corresponding violation of the plaintiffs’ rights under the
Constitution or laws of the United States.” Id. Plaintiff has not made any allegations that
defendant Cotner was acting in concert with a state actor when she allegedly stole money from
him. As such, she cannot be held liable under 42 U.S.C. § 1983.
Further, the Court notes that plaintiff has failed to state any other jurisdictional grounds
for filing this action in federal court. Plaintiff does not set forth any laws or
constitutionally-protected rights that defendant Costner allegedly has violated. See 28 U.S.C. '
1331. Moreover, subject matter jurisdiction does not exist under 28 U.S.C. ' 1332, given that
both plaintiff and defendant Costner are Missouri residents, and the amount in controversy has
not been pleaded as exceeding $75,000. As such, the case is also subject to dismissal for lack of
subject matter jurisdiction.
Accordingly,

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IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [Doc.
#2] is GRANTED.
IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $5.08
within thirty (30) days of 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.
IT IS FURTHER ORDERED that this action is DISMISSED pursuant to 28 U.S.C.
§ 1915(e)(2)(B) and for lack of subject matter jurisdiction under Fed.R.Civ.P.12(h)(3).
An Order of Dismissal will accompany this Memorandum and Order.
Dated this 29th day of September, 2014.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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