Gregory v. Medley et al
MEMORANDUM AND ORDER -- IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [Doc. 2 ] is GRANTED. IT IS FURTHER ORDERED that plaintiff's claims under the Ex Post Facto Clause, the First Amendment, and the Sixth Amendment are DISMISSED without prejudice. IT IS FURTHER ORDERED that the Clerk shall issue process or cause process to issue on the complaint. Signed by Honorable Jean C. Hamilton on 2/19/12. (KCM)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
BRYAN LEE GREGORY,
RODGER MEDLEY, et al.,
No. 4:12CV67 JCH
MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Bryan Gregory for leave to
commence this action without prepayment of the filing fee pursuant to 28 U.S.C.
§ 1915. Upon consideration of the financial information provided with the motion, the
Court finds that plaintiff is financially unable to pay any portion of the filing fee. As
a result, plaintiff will be granted leave to proceed in forma pauperis pursuant to 28
U.S.C. § 1915. Additionally, the Court is required to review the complaint pursuant
to 28 U.S.C. § 1915(e)(2)(B).
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.”
Neitzke v. Williams, 490 U.S. 319, 328 (1989); Denton v. Hernandez, 504 U.S. 25, 31
(1992). 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). 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).
Plaintiff brings this action under 42 U.S.C. § 1983. Named as defendants are
Rodger Medley, Sheriff of Iron County, Missouri, and Kathy Mayberry, Deputy Sheriff
for Iron County.
Plaintiff was recently released from prison. Plaintiff alleges that he was
incarcerated for fifteen days past his correct release date in violation of the First, Sixth,
Eighth, and Fourteenth Amendments, as well as the Ex Post Facto Clause. Plaintiff
blames defendants for his alleged over-detention because they allegedly failed to
forward the proper paperwork to the Missouri Department of Corrections so that he
could receive the proper credit for the time he was detained at the Iron County Jail.
Plaintiff asserts that he wrote a letter to defendant Medley, requesting that he
send the proper paperwork to the Department of Corrections. Plaintiff claims that
Medley never responded to the letter. Plaintiff alleges that a friend of his called
Medley about the matter and Medley told her that he was not responsible for sending
Plaintiff says he talked to defendant Mayberry on the phone several times,
requesting that she forward the paperwork. Plaintiff claims Medley agreed to take care
of it if she could but that she could not find his information in the computer. Plaintiff
alleges that the last time he talked with Medley he threatened to sue her and she hung
up on him.
Plaintiff’s Eighth and Fourteenth Amendment claims survive initial review under
28 U.S.C. § 1915(e). E.g., Davis v. Hall, 375 F.3d 703, 713-18 (8th Cir. 2004). As
a result, the Court will order the Clerk to issue service on defendants.
Plaintiff’s First and Sixth Amendment claims, however, will be dismissed
because these provisions of the Constitution are not implicated by plaintiff’s alleged
Furthermore, there are no allegations in the complaint that would give rise to a
claim under the Ex Post Facto Clause. There are no allegations that plaintiff was
subject to legal sanctions that were introduced after he convicted his crime. And,
generally speaking, a claim for money damages does not arise from a violation of the
Ex Post Facto Clause. See Dahl v. Weber, 580 F.3d 730, 733 (8th Cir. 2009). Habeas
corpus is the normal remedy in such cases. Id. As a result, plaintiff’s Ex Post Facto
Clause claims will be dismissed.
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma
pauperis [Doc. 2] is GRANTED.
IT IS FURTHER ORDERED that plaintiff’s claims under the Ex Post Facto
Clause, the First Amendment, and the Sixth Amendment are DISMISSED without
IT IS FURTHER ORDERED that the Clerk shall issue process or cause
process to issue on the complaint.
Dated this 19th day of February, 2012.
/s/Jean C. Hamilton
JEAN C. HAMILTON
UNITED STATES DISTRICT JUDGE
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