Brown v. Oliver et al

Filing 4

MEMORANDUM AND ORDER re: 2 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff Glen E. Brown motion is GRANTED. IT IS FURTHER ORDERED that plaintiff shall pay an initial filing fee of $2.00 within thirt y (30) days of the date of this Order( Initial Partial Filing Fee due by 8/19/2015.) 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 and fails to state a claim upon which relief may be granted. See 28 U.S.C. ' 1915(e)(2)(B). Signed by District Judge Jean C. Hamilton on 7/20/15. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
GLEN E. BROWN,
Plaintiff,
v.
RUSS OLIVER, et al.,
Defendants.

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No. 1:15-CV-125-ACL

MEMORANDUM AND ORDER
This matter is before the Court on the application of Glen E. Brown
(registration no. 3134-3) for leave to commence this action without payment of the
required filing fee. After reviewing plaintiff’s financial information, the Court will
grant the motion and assess a $2.00 initial partial filing fee. Moreover, for the
reasons set forth below, this action will be dismissed as legally frivolous.
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 $10.00, and an unknown average
monthly account balance. Accordingly, the Court will assess an initial partial filing
fee of $2.00, which is twenty 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 may dismiss a complaint
filed in forma pauperis at any time 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 fails to state a claim upon which relief
can be granted 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).

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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).
The Complaint
Plaintiff, an inmate at the Stoddard County Jail, seeks monetary relief
in this 42 U.S.C. ' 1983 action against state prosecuting attorney Russ Oliver and
assistant prosecuting attorney Andy Rehmer.

Plaintiff summarily alleges that

defendants are maliciously prosecuting him.
Having carefully considered plaintiff’s allegations, the Court finds that
the complaint is legally frivolous as to both defendants. Where "a prosecutor is
acting within the scope of his proper prosecutorial capacity, these actions are
cloaked with the same immunity granted to judges." Barnes v. Dorsey, 480 F.2d
1057, 1060 (8th Cir. 1973); Wilhelm v. Turner, 431 F.2d 177, 182-83 (8th Cir.
1981); cf. Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976) (prosecutor absolutely
immune from suit for damages under ' 1983 for alleged violations committed in
"initiating a prosecution and in presenting the state's case"); Myers v. Morris, 810
F.2d 1437, 1446-48 (8th Cir. 1987) (immunity extends to allegations of vindictive
prosecution). As such, this action will be dismissed, without prejudice.
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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 filing
fee of $2.00 within thirty (30) days of the date of this Order. Plaintiff is instructed
to make his remittance payable to AClerk, 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 the Clerk shall not issue process or
cause process to issue upon the complaint, because the complaint 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 20th day of July, 2015.

_______\s\ Jean C. Hamilton______________
UNITED STATES DISTRICT JUDGE

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