Kingcade v. Trowbridge et al
Filing
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MEMORANDUM AND ORDER re: 2 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff Forest Conan Kingcade, 8 MOTION for Summary Judgment filed by Plaintiff Forest Conan Kingcade, 10 MOTION to Appoint Couns el filed by Plaintiff Forest Conan Kingcade. IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in forma pauperis [Doc. #2] is GRANTED. IT IS FURTHER ORDERED that plaintiff shall pay an initial partial filing fee of $1.38 wit hin 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. IT IS FURTHER ORDERED that if plaintiff fails to pay the initial partial filing fee within thirty (30) days, without first showing good cause, the Court will dismiss this action without pre judice.IT IS FURTHER ORDERED that the Clerk shall issue process or cause process to be issued upon the complaint as to all defendants in their individual capacities.IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. 1997e(g)(2), defendants shall reply to the complaint within the time provided by the applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure. IT IS FURTHER ORDERED that plaintiff's motion for summary judgment [Doc. #8] is DENIED without prejudice, as premature . IT IS FURTHER ORDERED that plaintiff's motion for appointment of counsel [Doc. #10] is DENIED without prejudice. IT IS FURTHER ORDERED that, pursuant to the Court's differentiated case management system, this case is assigned to Track 5B (standard prisoner actions).(Initial Partial Filing Fee due by 4/17/2015.) Signed by Magistrate Judge Abbie Crites-Leoni on 3/18/15. (CSG)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
FOREST CONAN KINGCADE,
Plaintiff,
v.
TIM TROWBRIDGE, et al.,
Defendants.
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No. 1:15CV00024ACL
MEMORANDUM AND ORDER
This matter is before the Court on the application of Forest Conan Kingcade
(registration no. 237380) for leave to commence this action without payment of the
required filing fee. Upon consideration of plaintiff=s financial information, the
Court will grant the motion and assess an initial partial filing fee of $1.38. See 28
U.S.C. ' 1915(a).
In addition, the Court will order the Clerk of Court to issue
process on the complaint as to all named defendants in their individual capacities.
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
complaint. See 28 U.S.C. ' 1915(a)(1),(2). A review of plaintiff's account
statement indicates an average monthly deposit of $6.92, and an average monthly
account balance of $0.00. Plaintiff has insufficient funds to pay the entire filing
fee. Accordingly, the Court will assess an initial partial filing fee of $1.38, which is
20 percent of plaintiff's average monthly deposit.
42 U.S.C. ' 1997e(g)(2)
Pursuant to 42 U.S.C. ' 1997e(g)(2), the Court may require any defendant to
reply to a complaint brought by a prisoner pursuant to 42 U.S.C. ' 1983 or any other
federal law if it finds that the plaintiff has a reasonable opportunity to prevail on the
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merits. Moreover, 28 U.S.C. ' 1915A requires the Court to identify any cognizable
claims that would survive dismissal.
The Complaint
Plaintiff, an inmate at the Missouri Eastern Correctional Center, seeks
monetary relief in this 42 U.S.C. ' 1983 action against the following City of
Kennett, Missouri, police officers in their individual capacities: Tim Trowbridge,
Brandon Moore, Mark Dennis, Alan Campbell, and Phillip Caldwell. Plaintiff
alleges that defendants used excessive force against him on August 7, 2014, in the
context of an arrest. The Court finds that plaintiff's allegations are sufficient to
state a constitutional claim, and therefore, the Court will order that defendants reply
to the complaint.
In addition, plaintiff has filed a motion for summary judgment, which will be
dismissed without prejudice as premature, 1 and a motion for counsel, which will
also be dismissed without prejudice.
AA pro se litigant has no statutory or
constitutional right to have counsel appointed in a civil case.@ Stevens v. Redwing,
146 F.3d 538, 546 (8th Cir. 1998). When determining whether to appoint counsel
for an indigent litigant, the Court considers relevant factors, such as the complexity
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After all defendants have filed a responsive pleading, the Court will enter a Case
Management Order, establishing a time frame for discovery and summary judgment
motions.
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of the case, the ability of the pro se litigant to investigate the facts, the existence of
conflicting testimony, and the ability of the pro se litigant to present his or her claim.
Id.
After reviewing these factors, the Court finds that the appointment of counsel
is not warranted at this time. This case is neither factually nor legally complex.
Moreover, it is evident that plaintiff is able to present his claims, because the Court
has ordered all defendants to respond to plaintiff= his claims. Consequently, the
motion will be denied at this time, without prejudice.
In accordance with the foregoing,
IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in
forma pauperis [Doc. #2] is GRANTED.
IT IS FURTHER ORDERED that plaintiff shall pay an initial partial filing
fee of $1.38 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.
IT IS FURTHER ORDERED that if plaintiff fails to pay the initial partial
filing fee within thirty (30) days, without first showing good cause, the Court will
dismiss this action without prejudice.
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IT IS FURTHER ORDERED that the Clerk shall issue process or cause
process to be issued upon the complaint as to all defendants in their individual
capacities.
IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. ' 1997e(g)(2),
defendants shall reply to the complaint within the time provided by the applicable
provisions of Rule 12(a) of the Federal Rules of Civil Procedure.
IT IS FURTHER ORDERED that plaintiff’s motion for summary judgment
[Doc. #8] is DENIED without prejudice, as premature.
IT IS FURTHER ORDERED that plaintiff’s motion for appointment of
counsel [Doc. #10] is DENIED without prejudice.
IT IS FURTHER ORDERED that, pursuant to the Court's differentiated
case management system, this case is assigned to Track 5B (standard prisoner
actions).
Dated this 18th day of March, 2015.
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UNITED STATES MAGISTRATE JUDGE
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