Andrus v. Porter et al

Filing 5

MEMORANDUM AND ORDER re: 2 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff Brandon Andrus. IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in forma pauperis (Docket No. 2) is GRAN TED. IT IS FURTHER ORDERED that plaintiff must pay an initial filing fee of $1.00 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 t o 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 without prejudice. A separate Order of Dismissal will be entered herewith.(Initial Partial Filing Fee due by 12/14/2016.) Signed by District Judge Stephen N. Limbaugh, Jr. on 11/14/16. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
BRANDON ANDRUS,

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Plaintiff,
v.
LARRY PORTER, et al.,
Defendants.

No. 1:16CV256 SNLJ

MEMORANDUM AND ORDER
This matter is before the Court on plaintiff Brandon Andrus’s motion for leave to
commence this civil action without prepayment of the required filing fee.

The Court has

reviewed the motion and the financial information submitted therewith, and will assess an initial
partial filing fee of $1.00. In addition, the Court has reviewed the complaint, and will dismiss it
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 twenty 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 twenty 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

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monthly payments to the Clerk of Court each time the amount in the prisoner’s account exceeds
$10.00, until the filing fee is fully paid. Id.
In support of the instant motion, plaintiff has submitted an uncertified “resident account
summary” showing his institution account activity for the period of September 14, 2016 through
October 26, 2016. The Court will require plaintiff to pay an initial partial filing fee of $1.00, an
amount that is reasonable based upon the information the Court has about plaintiff’s finances.
See Henderson v. Norris, 129 F.3d 481, 484 (8th Cir. 1997) (when a prisoner is unable to provide
the Court with a certified copy of his prison account statement, the Court should assess an
amount “that is reasonable, based on whatever information the court has about the prisoner’s
finances.”).
28 U.S.C. § 1915(e)(2)(B)
Pursuant to 28 U.S.C. ' 1915(e)(2)(B), the Court shall 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 “lacks 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). A complaint fails to state a claim 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). 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).
To determine whether an action fails to state a claim upon which relief can be granted,
the Court must engage in a two-step inquiry. First, the Court must identify the allegations in the

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complaint that are not entitled to the assumption of truth. Ashcroft v. Iqbal, 129 S. Ct. 1937,
1950-51 (2009). These include “legal conclusions” and “[t]hreadbare recitals of the elements of
a cause of action [that are] supported by mere conclusory statements.” Id. at 1949. Second, the
Court must determine whether the complaint states a plausible claim for relief. Id. at 1950-51.
This is a “context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 1950. The plaintiff is required to plead facts that show
more than the “mere possibility of misconduct.” Iqbal, 129 S. Ct. at 1950. The Court must
review the factual allegations in the complaint “to determine if they plausibly suggest an
entitlement to relief.” Id. at 1951.
The Amended Complaint
Plaintiff brings this action pursuant to 42 U.S.C. § 1983 against Larry Porter, Steve
Everingham, and Scott Scarborough. For his statement of claim, plaintiff alleges: “Investigators
lacked reasonable suspicion for initial stop.” (Docket No. 1 at 5). Plaintiff then states generally
that the Fourth Amendment prohibits unreasonable searches and seizures, and cites legal
authority in support. Plaintiff includes no facts whatsoever regarding the circumstances giving
rise to this complaint. For his prayer for relief, plaintiff asks the Court to dismiss the criminal
charges against him, and for punitive damages against the defendants.
Discussion
Plaintiff is before the Court in forma pauperis, meaning the Court has a duty to dismiss
the case at any time if it determines that fails to state a claim upon which relief can be granted, is
frivolous, or malicious. 28 U.S.C. § 1915(e)(2). Upon consideration, the Court determines that
plaintiff’s complaint is subject to dismissal because plaintiff has failed to state a claim upon
which relief can be granted. To state an actionable claim for relief, a plaintiff must allege facts

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which, if proven true, would entitle him to some redress against the named defendants. While
legal conclusions can form the framework of a complaint, they must be supported by factual
allegations.

Iqbal, 129 S. Ct. at 1950.

In the case at bar, plaintiff has alleged no facts

whatsoever showing that any defendant violated any federal constitutional right. While federal
courts must “view pro se pleadings liberally, such pleadings may not be merely conclusory: the
complaint must allege facts, which if true, state a claim as a matter of law.” Martin v. Aubuchon,
623 F.2d 1282, 1286 (8th Cir. 1980); see also Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir.
1985) (“[a]lthough it is to be liberally construed, a pro se complaint must contain specific facts
supporting its conclusions”); Stone v. Harry, 364 F.3d 912, 915 (8th Cir. 2004) (federal courts
are not required to “assume facts that are not alleged, just because an additional factual allegation
would have formed a stronger complaint”).
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion for leave to proceed in forma
pauperis (Docket No. 2) is GRANTED.
IT IS FURTHER ORDERED that plaintiff must pay an initial filing fee of $1.00 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 without prejudice. A
separate Order of Dismissal will be entered herewith.
Dated this 14th day of November, 2016.
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE
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