Hester v. Boyer et al
Filing
6
OPINION,MEMORANDUM AND ORDER: IT ISHEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [Doc. # 2 ] is GRANTED. FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $.90 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 p roceeding. FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the complaint because the complaint is legally frivolous or fails to state a claim upon which relief can be granted, or both. An Order of Dismissal will accompany this Memorandum and Order. Signed by Honorable Henry E. Autrey on 06/12/12. (CLK)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
EDISON CARL HESTER,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
TIMOTHY BOYER, et al.,
Defendants.
No. 4:12CV963 HEA
OPINION, MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff (registration no.
60053), an inmate at St. Louis City Justice 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 $.90. See 28 U.S.C. § 1915(b)(1). Furthermore, based upon
a review of the complaint, the Court finds that the complaint should be dismissed
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 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
$4.50, and an average monthly balance of $0. Plaintiff has insufficient funds to pay the
entire filing fee. Accordingly, the Court will assess an initial partial filing fee of $.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 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). An action is malicious if it is undertaken
for the purpose of harassing the named defendants and not for the purpose of vindicating
-2-
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 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 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 Complaint
Plaintiff, an inmate at the St. Louis City Justice Center, brings this action pursuant
to 42 U.S.C. § 1983, alleging violations of his civil rights. Named as defendants are:
-3-
Timothy Boyer (Asst. Prosecuting Atty.), John Riley (Judge), Dane Roper and Lenord
Edward.
In a general and conclusory manner, plaintiff alleges that he was denied due
process and effective assistance of counsel in his state criminal proceedings. He has not
made any specific allegations against any of the named defendants.
Discussion
“Liability under § 1983 requires a causal link to, and direct responsibility for, the
alleged deprivation of rights.” Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir.
1990); see also Martin v. Sargent, 780 F.2d 1334, 1338 (8th Cir. 1985) (claim not
cognizable under § 1983 where plaintiff fails to allege defendant was personally involved
in or directly responsible for incidents that injured plaintiff); Boyd v. Knox, 47 F.3d 966,
968 (8th Cir. 1995)(respondeat superior theory inapplicable in § 1983 suits). In the
instant action, plaintiff has not set forth any facts indicating that any of the named
defendants were directly involved in or personally responsible for the alleged violations
of his constitutional rights. As a result, the complaint fails to state a claim upon which
relief can be granted.
Additionally, the Court notes that plaintiff has named both a State Court Judge and
a State Court Prosecutor as defendants in this action. Even if plaintiff had properly made
allegations against these defendants, his claims would still be subject to dismissal. See,
e.g., Penn v. United States, 335 F.3d 786, 789 (8th Cir. 2003) (quoting Mireles v. Waco,
-4-
502 U.S. 9, 11-12 (1991)) (holding that a judge is is “entitled to absolute immunity for
all judicial actions that are not ‘taken in a complete absence of all jurisdiction.’”); see
also, Brodnicki v. City of Omaha, 75 F.3d 1261, 1266 (8th Cir. 1996) (noting where “the
prosecutor is acting as advocate for the state in a criminal prosecution, [] the prosecutor
is entitled to absolute immunity.”).
Last, although it is not entirely clear from plaintiff’s pleading whether his criminal
proceedings are still ongoing in St. Louis City Court, the Court feels compelled to alert
plaintiff that it cannot interfere with an ongoing state criminal proceeding. 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). And to the extent plaintiff’s
proceedings have concluded and he is seeking interference in the State Court’s decision,
the Court cannot do so within the confines of the present action. This Court does not
have subject matter jurisdiction “over challenges to state court decisions in particular
cases arising out of judicial proceedings even if those challenges allege that the state
court’s action was unconstitutional. Review of those decisions may be had only in [the
-5-
United States Supreme Court].” District of Columbia Court of Appeals v. Feldman, 460
U.S. 462, 486 (1983).
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma pauperis
[Doc. #2] is GRANTED.
IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of
$.90 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 legally frivolous or fails to
state a claim upon which relief can be granted, or both.
An Order of Dismissal will accompany this Memorandum and Order.
Dated this 12th day of June, 2012.
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
-6-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?