Evans v. Bryant et al

Filing 5

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 $13.90 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, based upon the Younger abstention doctrine, the Clerk shall not issue process or cause process to issue upon the complaint. See 28 U.S.C. § 1915(e)(2)(B). An appropriate order shall accompany this order and memorandum. Signed by Honorable Donald J. Stohr on 7/30/09. (KXS)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION EDREAM SAYONTA EVANS, Plaintiff, v. PAULA PERKINS BRYANT, et al., Defendants. ) ) ) ) ) ) ) ) )

No. 4:09-CV-1044-DJS

ORDER AND MEMORANDUM This matter is before the Court upon the application of Edream Sayonta Evans for leave to commence this action without payment of the required filing fee. 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. 28 U.S.C. § 1915(b)(2). See

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 $69.50, and an average monthly account balance of $3.22. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the Court will assess

an initial partial filing fee of $13.90, which is 20 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 is frivolous if "it Neitzke v.

lacks an arguable basis either in law or in fact." Williams, 490 U.S. 319, 325 (1989).

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, 127 S. Ct. 1955, 1974 (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 The

construction.

Haines v. Kerner, 404 U.S. 519, 520 (1972).

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 (1992); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The complaint Plaintiff, a pre-trial detainee at the St. Louis City Justice Center, seeks monetary and injunctive relief in this 42 U.S.C. § 1983 action against defendants State of Missouri, Judge Paula Perkins Bryant, and Judge Joan L. Moriarty. Plaintiff

alleges that defendants have "placed an uncertified indictment on [his] case and a[n] illegal warrant to hold [him]." In Younger v. Harris, 401 U.S. 37, 46 (1971), the Supreme Court directed federal courts to abstain from hearing cases where "the action complained of constitutes the basis of an ongoing state judicial proceeding, the proceedings implicate important state interests, and an adequate opportunity exists in the state

proceedings to raise constitutional challenges." Harmon v. City of Kansas City, Missouri, 197 F.3d 321, 325 (8th Cir. 1999); see also, Fuller v. Ulland, 76 F.3d 957, 959 (8th Cir. 1996). Having carefully reviewed plaintiff's allegations, the Court concludes that the Younger criteria are satisfied and that 3

abstention

is

warranted.

Plaintiff

states

that

he

has

been

indicted in a state criminal matter in the City of St. Louis; plaintiff's allegations implicate important state interests; and an adequate opportunity exists in the state proceeding to raise constitutional challenges. Finding no "extraordinary

circumstances" that would justify interfering with a pending state judicial proceeding, the Court will dismiss the instant action, without prejudice. See Younger, 401 U.S. at 43-44.1

Moreover, to the extent that plaintiff is seeking habeas corpus relief, he must file a separate habeas action, after having first exhausted available state remedies. 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 $13.90 within thirty (30) days from 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

In addition, the Court notes that State of Missouri is not a suable entity under § 1983, see Will v. Michigan Dept. of State Police, 491 U.S. 58, 63 (1989) (state is not a "person" under § 1983); and judges are immune from liability for damages under § 1983 where the alleged wrongdoings were performed within their judicial capacity. See Stump v. Sparkman, 435 U.S. 349, 356-57 (1978). 4

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case number; and (4) that the remittance is for an original proceeding. IT IS FURTHER ORDERED that, based upon the Younger

abstention doctrine, the Clerk shall not issue process or cause process to issue upon the complaint. See 28 U.S.C.

§ 1915(e)(2)(B). An appropriate order shall accompany this order and memorandum. Dated this 30th day of July, 2009.

/s/Donald J. Stohr UNITED STATES DISTRICT COURT

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