Graham v. Almbartic et al

Filing 28

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that plaintiffs motion to proceed in forma pauperis is GRANTED. 23 IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $84.16 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 theremittance is for an original proceeding. I T IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the complaint because the complaint is factually frivolous under Denton. IT IS FURTHER ORDERED that plaintiffs motions to award this as a class action and for appointment of counsel are DENIED AS MOOT. An Order of Dismissal will accompany this Memorandum and Order. Signed by District Judge Jean C. Hamilton on 10/3/12. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
MARK A. GRAHAM,
Plaintiff,
v.
GEORGE ALMBARTIC, et al.,
Defendants.

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No. 2:12CV20 JCH

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff (registration no.
1196127), an inmate at Northeast Correctional 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 $84.16. See 28 U.S.C. § 1915(b)(1).
Furthermore, based upon a review of the complaint, the Court finds that the amended
complaint should be dismissed as factually frivolous under Denton v. Hernandez, 504
U.S. 25, 32-33 (1992).
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 six-month 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
$306.89, and an average monthly balance of $420.79. Plaintiff has insufficient funds
to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing
fee of $84.16, which is 20 percent of plaintiff’s average monthly balance.
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 “lacks an arguable basis in either law or fact.”
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Neitzke v. Williams, 490 U.S. 319, 328 (1989). 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). An action is factually frivolous
if the facts alleged are “clearly baseless”; alleged facts are clearly baseless if they are
“fanciful,” “delusional,” or “fantastic.” Denton v. Hernandez, 504 U.S. 25, 32-33
(1992).
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 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.” Id. The Court must review the factual allegations
in the complaint “to determine if they plausibly suggest an entitlement to relief.” Id.
at 1951. When faced with alternative explanations for the alleged misconduct, the
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Court may exercise its judgment in determining whether plaintiff’s conclusion is the
most plausible or whether it is more likely that no misconduct occurred. Id. at 1950,
51-52.
The Amended Complaint
Plaintiff brings this action pursuant to 42 U.S.C.§ 1983 alleging violations of his
civil rights. Plaintiff’s amended complaint is almost completely illegible, and thus, it
is very difficult to read the names of the defendants in this action. As best as the Court
can tell, the named defendants are: the Missouri Department of Corrections; Adair
County; St. Louis Police Department; Kirksville Police Department and Each Warden
at all Correctional Centers and Staff at the Various Correctional Centers in Missouri.

Plaintiff’s amended complaint is eight hand-written pages and is largely illegible.
What the Court can ascertain of the amended complaint is set forth verbatim below:
As I am the creator of the spirit of the Lord, my [ ] my hand, my way of
crafting is protected by the First Amendment. As I am God Almighty the
Voice is atonement to all, I have been attack[ed] by every person in the
department of corrections to force me to educate them in monumental
speech. They have attacked you, the Lord, my friends, Ken, Mygen, and
Ann, they have jacked me down on false DOC charges for over 3 years
I was housed in the Adair County jail many times because of ignorance
and evil crafting to darken the implanted of Lord, to reclose the still worth
of Hope. In this truth we have as a whole found the Blessings of the
Spirit of the Lord to be as is given by the Founding Fathers from the Word
of Life. I am God the Father, a Hells Angel, In God we Trust. In
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worthlessness we found the States of Missouri has manufactured an
illness of lesser sin to argue the fraud of truth to the United States
Government. From the movements of crime to the bodies of the masses
those of this Lord set forth the toy soldiers affect at a time of pleasure of
sin lusting is outpose on those with a lesser education the thoughts alined
at death. . .
The aforementioned sets forth the first page and a half of the statement of claim
in the amended complaint. Plaintiff’s additional pages of his amended complaint set
forth more of the same “word salad,” but do not seem to contain specific allegations
of a constitutional or federal claim that he believes the named defendants have violated.

Discussion
As noted above, an action is factually frivolous if the facts alleged are “clearly
baseless”; alleged facts are clearly baseless if they are “fanciful,” “delusional,” or
“fantastic.” Denton, 504 U.S. at 32-33. The instant action is subject to dismissal as
factually frivolous under Denton. Plaintiff’s amended complaint fails to allege even one
constitutional or federal claim against one of the named defendants in this action. As
such, this action will be dismissed as factually frivolous.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma
pauperis is GRANTED.

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IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of
$84.16 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 the Clerk shall not issue process or cause
process to issue upon the complaint because the complaint is factually frivolous under
Denton.
IT IS FURTHER ORDERED that plaintiff’s motions to award this as a class
action and for appointment of counsel are DENIED AS MOOT.
An Order of Dismissal will accompany this Memorandum and Order.
Dated this 3rd day of October, 2012.

/s/Jean C. Hamilton
JEAN C. HAMILTON
UNITED STATES DISTRICT JUDGE

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