Bewley v. Brown et al

Filing 4

MEMORANDUM AND ORDER: 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 $3.20 within thirty (30) days fr om 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 remi ttance 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. S ee 28 U.S.C. § 1915(e)(2)(B). IT IS FURTHER ORDERED that the Clerk shall docket this case as Tommy Ray Bewley v. T.L. Brown and Mississippi County Courthouse. A separate Order of Dismissal shall accompany this Memorandum and Order ( Initial Partial Filing Fee due by 10/5/2015.) Signed by District Judge Stephen N. Limbaugh, Jr on 9/4/2015. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
TOMMY RAY BEWLEY,
Plaintiff,
v.
T.L. BROWN, et al.,
Defendants.

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No. 1:15-CV-155-SNLJ

MEMORANDUM AND ORDER
This matter is before the Court on the application of Tommy Ray Bewley
(registration no. 1056401) 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 $3.20.
See 28 U.S.C. § 1915(b)(1). Furthermore, based upon a review of the complaint,
the Court finds that this action should be dismissed as legally frivolous, 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
complaint. See 28 U.S.C. § 1915(a)(1),(2). A review of plaintiff's account
statement indicates an average monthly deposit of $16.00. Plaintiff has insufficient
funds to pay the entire filing fee. Accordingly, the Court will assess an initial
partial filing fee of $3.20, which is 20 percent of plaintiff's average monthly
deposit.

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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 “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).
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 Jefferson City Correctional Center, seeks
monetary relief in this action against T.L. Brown (a Mississippi County Circuit
Judge) and the Mississippi County Courthouse. Plaintiff summarily alleges that
defendants framed him in connection with an underlying state court matter.

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Discussion
After carefully reviewing plaintiff's allegations, the Court concludes that the
complaint is legally frivolous. The allegations do not rise to the level of a
constitutional violation and fail to state a claim or cause of action. Moreover,
judges are immune from suit under § 1983. Mireles v. Waco, 502 U.S. 9, 11
(1991) (“Judicial immunity is an immunity from suit, not just from ultimate
assessment of damages.”); see also Robinson v. Freeze, 15 F.3d 107, 108 (8th Cir.
1994) (“Judges performing judicial functions enjoy absolute immunity from §
1983 liability.”). Moreover, Missouri courts are not suable entities under ' 1983.
See Will v. Michigan Dept. of State Police, 491 U.S. 58, 63 (1989) (state is not a
Aperson@ under ' 1983); Alsbrook v. City of Maumelle, 184 F.3d 999, 1010 (8th
Cir. 1999) (en banc) (' 1983 suit cannot be brought against state agency), cert.
dismissed, 529 U.S. 1001 (2000). For these reasons, this action will be dismissed,
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 $3.20 within thirty (30) days from the date of this order. Plaintiff is

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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 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).
IT IS FURTHER ORDERED that the Clerk shall docket this case as
Tommy Ray Bewley v. T.L. Brown and Mississippi County Courthouse.
A separate Order of Dismissal shall accompany this Memorandum and
Order.
Dated this 4th day of September, 2015.

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UNITED STATES DISTRICT JUDGE

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