Hampton v. State of Missouri
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that petitioner's motion for leave to proceed in forma pauperis [Doc. 2] is GRANTED. IT IS FURTHER ORDERED that petitioner shall pay an initial partial filing fee of $1.00 within thirty (30) days from the date of this order. Petitioner 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 th e remittance is for an original proceeding. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the petition, because the petition is legally frivolous and fails to state a claim upon which relief may be grant ed. See 28 U.S.C. § 1915(e)(2)(B). IT IS FURTHER ORDERED that petitioner's motion for appointment of counsel [Doc. 3] is DENIED as moot. A separate Order of Dismissal shall accompany this Memorandum and Order.. Signed by District Judge John A. Ross on 10/30/12. (LGK)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
STATE OF MISSOURI,
MEMORANDUM AND ORDER
This matter is before the Court upon Ricky Hampton's (registration no. 324094)
filing of a certified inmate account statement [Doc. #2], which will be liberally
construed as a motion for leave to proceed in forma pauperis. For the reasons stated
below, the Court finds that petitioner does not have sufficient funds to pay the entire
filing fee, and therefore, the motion will be granted, and petitioner will be assessed an
initial partial filing fee of $1.00. See 28 U.S.C. § 1915(b)(1). Furthermore, based
upon a review of the petition, the Court finds that this action 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 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. See 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
Petitioner 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 petitioner's account statement
indicates an average monthly deposit of $5.01, and an average monthly account
balance of $0.00. Petitioner has insufficient funds to pay the entire filing fee.
Accordingly, the Court will assess an initial partial filing fee of $1.00, which is 20
percent of petitioner'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 pleading 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 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 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, 550 U.S. 544,570
Moreover, in reviewing a pro se pleading under § 1915(e)(2)(B), the Court must
give the petition the benefit of a liberal construction. Haines v. Kerner, 404 U.S. 519,
520 (1972). The 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
Petitioner seeks a writ of mandamus against the State of Missouri, pursuant to
28 U.S.C. § 1651. Petitioner states that after pleading guilty in the Circuit Court of
Scott County, Missouri, to burglary and forgery charges, he was sentenced, inter alia,
to five years' probation. Petitioner claims that his probation was subsequently
illegally revoked, without a proper hearing, appointment of competent counsel, and/or
an opportunity to confront adverse witnesses. Petitioner states that "the revocation
hearing held in this matter was fundamentally fatal." He asks this Court to vacate his
state criminal sentence, remand for further proceedings, and issue a writ of mandamus
"directed against Scott County, Missouri, through whose order the Petitioner has
unlawfully had his liberty restrained and been incarcerated in the Missouri Department
Petitioner's request for a writ of mandamus is legally frivolous. Cf. Veneri v.
Circuit Court of Gasconade Co., 528 F.Supp. 496, 498 (E.D. Mo. 1981)(federal courts
have no superintending control over and are without authority to issue writ of
mandamus to direct state court or its judicial officers in performing duties).
Moreover, to the extent that petitioner is attempting to challenge a state judge's
revocation of probation order, the instant mandamus petition is without merit.1
Federal district courts are courts of original jurisdiction; they lack subject matter
jurisdiction to engage in appellate review of state court decisions. Postma v. First
Fed. Sav. & Loan, 74 F.3d 160, 162 (8th Cir. 1996). "[Federal] [r]eview of state court
decisions may be had only in the Supreme Court." Id.
For these reasons, the instant action will be dismissed under § 1915(e)(2)(B).2
IT IS HEREBY ORDERED that petitioner's motion for leave to proceed in
forma pauperis [Doc. #2] is GRANTED.
The Court notes that the caption of the instant writ of mandamus states,
"The Court of Appeals - Eastern District - State of Missouri," and the petition
was mailed in an envelope addressed to the "United States District Court Southeastern Division."
The Court will not liberally construe the instant mandamus petition as a
petition for a writ of habeas corpus under 28 U.S.C. § 2254, because there is no
indication that petitioner has exhausted his state remedies, and he has neither
requested nor consented to such a reclassification. See Braden v. 30th Judicial
Circuit Court of Kentucky, 410 U.S. 484 (1973)(in the absence of exceptional
circumstances, a state prisoner must exhaust currently available and adequate state
remedies before invoking federal habeas corpus jurisdiction); Morales v. United
States, 304 F.3d 764, 765 (8th Cir. 2002)(Court should not reclassify a pleading as
a habeas corpus action, unless and until petitioner has been afforded an opportunity
either to withdraw the pleading or to consent to the reclassification).
IT IS FURTHER ORDERED that petitioner shall pay an initial partial filing
fee of $1.00 within thirty (30) days from the date of this order. Petitioner 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 petition, because the petition is legally frivolous and fails to
state a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B).
IT IS FURTHER ORDERED that petitioner's motion for appointment of
counsel [Doc. #3] is DENIED as moot.
A separate Order of Dismissal shall accompany this Memorandum and Order.
Dated this 30th day of October, 2012.
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE
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