Beckner v. Green et al
MEMORANDUM AND ORDER re: 2 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff Gerald Beckner motion is GRANTED.IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [Doc. #2] is GR ANTED. IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $11.33 within thirty (30) days of the date of this Order. Plaintiff is instructed to make his remittance payable to "Clerk, United States District Court,&quo t; 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).An Order of Dismissal will accompany this Memorandum and Order. (Initial Partial Filing Fee due by 6/8/2015.) Signed by District Judge Stephen N. Limbaugh, Jr on 5/7/15. (CSG)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NICOLE GREEN, et al.,
No. 1:15CV30 ACL
MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff (registration no.015120), an
inmate at Dunklin County Justice Center, 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 $11.33.
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).
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 $56.65, and an average monthly
balance of $24.86. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the
Court will assess an initial partial filing fee of $11.33, which is 20 percent of plaintiff's average
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).
Plaintiff, Gerald Beckner, an inmate at the Dunklin County Justice Center, brings this
action pursuant to 42 U.S.C. § 1983, alleging violations of his civil rights. Named as defendants
are: Nicole Green (Jail Administrator); Bob Holder (Sheriff, Dunklin County Sheriff’s Dept.);
and Walley Pointer (Chief Deputy).
Plaintiff alleges that defendants “interfered” with his divorce proceedings by “not pulling
him from E Pod in the Dunklin County Justice Center for [his] Divorce Hearing on in front of
Judge Meyer on November 12th, 2014.” Plaintiff claims that the three defendants knew of the
upcoming divorce hearing and did not have the correctional officers take him to attend the
hearing at the courthouse. Plaintiff believes this was a violation of his constitutional rights even
though he was told by defendants that the Judge reviewing the divorce proceedings had not
signed a writ of habeas corpus ad testificandum for his release.
Although the First Amendment recognizes a constitutional right of access to the Courts,
the right does not automatically encompass a right to be present in person at a civil trial. See,
e.g., Call v. Heard, 925 S.W.2d 840, 846 (Mo. Banc 1996) (noting that “constitutionally
sufficient access can be afforded by means other than personal appearance”); see also, Beckwith
v. Giles, 32 S.W.3d 659, 663 (Mo.App.2000) (“it is also equally well-established that a prisoner
has no absolute right to appear personally in a civil proceeding”).
In fact, by its enactment of Missouri Revised Statute Section 491.230.2 [amended in
1995], the Missouri General Assembly indicated in the strongest possible terms that prisoners
should not be permitted to leave prisons to appear in civil cases. The statute noted that “due
process was not implicated in the absence of showing that alternative means [were] inadequate to
secure meaningful access to the courts.”
In 1995, the General Assembly amended § 491.230.2 to permit an inmate who is a party
to a civil proceeding to attend a trial when the trial court determined that the inmate would be
“substantially and irreparably prejudiced by his failure to attend a trial on the merits in the civil
proceeding.” The statute was also amended to allow for trials to be held within state correctional
facilities, under the discretion of the trial court judge. See Mo.Rev.Stat. § 544.275.
The legislature has provided a variety of alternatives for securing prisoner’s rights
to access to the courts. In Missouri, prisoners can testify by conventional
deposition or by videotaped deposition or by closed circuit television, and in some
instances, upon a prisoner’s request, a trial judge may, in his or her discretion,
conduct a bench trial within the prison in cases whether the prisoner is a party.
Only where there are no reasonable alternatives to access the court and a
substantial and irreparable prejudice will result from the failure to attend the
proceedings may personal attendance be required as a matter of due process.
Beckwith, 32 S.W.3d at 663; see also, Mo.Rev.Stat. § 544.275
The granting of a writ of habeas corpus ad testificandum to appear in a civil proceeding
lies within the discretion of the trial court which should require strict proof of the materiality of
the testimony and the necessity of the attendance of the prisoner as a witness. Beckwith, 32
S.W.3d at 663. Such proof is then balanced against the State’s interest in economy, convenience
and security. State ex rel. Kittrell v. Carr, 878 S.W.2d 859, 862 (Mo.Ct.App. 1994).
This Court cannot act as a reviewing Court to the state court managing plaintiff’s divorce
proceedings. District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 486 (1983) (this
Court does not have subject matter jurisdiction Aover challenges to state court decisions, in
particular, cases arising out of judicial proceedings even if those challenges allege that the state
court=s action was unconstitutional. Review of those decisions may be had only in [the United
States Supreme Court].@) Thus, plaintiff’s case is subject to dismissal on those grounds alone.
In essence, it was up to the state court judge to decide whether plaintiff’s attendance at
his divorce proceedings was necessary. The judge’s failure to issue the writ of habeas corpus ad
testificandum was in the state court’s discretion and cannot be overturned by this Court.
Moreover, this Court cannot hold defendants liable for damages for carrying out their
established duties under state law. In such circumstances, the doctrine of qualified immunity
clearly applies. See Plunkoff v. Rickard, 134 S.Ct. 2012, 2023 (2013). As such, this action is
subject to dismissal under 28 U.S.C. § 1915.
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 $11.33
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
IT IS FURTHER ORDERED that this action is DISMISSED pursuant to 28 U.S.C.
An Order of Dismissal will accompany this Memorandum and Order.
Dated this 7th day of May, 2015.
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE
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