Hampton v. Missouri Highway Patrol et al

Filing 10

MEMORANDUM AND ORDER. (see order for details) 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 $1.57 within thi rty (30) days of the date of this Order. IT IS FURTHER ORDERED that plaintiff's motions for continuation and for change of venue [Doc. # 4 and # 5 ] are DENIED. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to i ssue upon the complaint because the Court lacks subject matter jurisdiction over this action. See Fed.R.Civ.P.12(h)(3). An Order of Dismissal will accompany this Memorandum and Order. Signed by District Judge Catherine D. Perry on 01/07/2013. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
RICKY HAMPTON,
Plaintiff,
v.
MISSOURI HIGHWAY PATROL,
et al.,
Defendants.

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No. 4:12CV2161 FRB

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff (registration no.
324094), an inmate at Moberly 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 $1.57. See 28 U.S.C. § 1915(b)(1).
Furthermore, based upon a review of the complaint, the Court finds that it lacks
jurisdiction over this matter. See Fed.R.Civ.P.12(h)(3).
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 $7.85, 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 $1.57, 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

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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).
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

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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 Moberly Correctional Center, brings this action
against the Missouri Highway Patrol and James Keathley, Superintendent of the
Missouri Highway Patrol, in his "official capacity" for "libel and slander."
Plaintiff also makes mention in a supplemental pleading of "defamation" and "false
light." Plaintiff claims that he was "browsing the internet" and he "came across a
website" by the Missouri Highway Patrol that had a post that "falsely stated that
plaintiff forcibly raped a 12 year old girl, that a weapon was used and injury
caused." Plaintiff claims defendants are libel for "damages caused by this post" in
an amount of at least "2 million."
In addition to his complaint and his accompanying motion to proceed in
forma pauperis, plaintiff has also filed a motion for change of venue and a motion
for continuance of this action until after his release from incarceration.
Discussion

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At the outset, the Court notes that plaintiff has failed to state the
jurisdictional grounds for filing this action in federal court. Plaintiff has chosen
to file his action on the Court's regular form complaint, rather than the Prisoner
Civil Rights 42 U.S.C. § 1983 Complaint Form, and in the body of his complaint,
plaintiff has not set forth any federal laws or constitutionally-protected rights that
defendants have allegedly violated. See 28 U.S.C. § 1331; Schmidt v. City of
Bella Villa, 557 F.3d 564, 571 (8th Cir. 2009) (noting that the essential elements
of a claim under § 1983 are (1) that the defendant acted under color of state law,
and (2) that the alleged wrongful conduct deprived the plaintiff of a
constitutionally protected federal right). The claims of "libel and slander" and
"defamation and false light" are state law claims for relief and do not avail this
Court of subject matter jurisdiction under § 1331.
Moreover, diversity jurisdiction does not appear to exist under 28 U.S.C. §
1332, given that both plaintiff and defendants are Missouri residents, and the
amount in controversy has not been alleged to exceed $75,000. As such, the case
is subject to dismissal for lack of jurisdiction.
Additionally, the Court notes that even if plaintiff were attempting to bring
this action pursuant to 42 U.S.C. § 1983, his claims against defendants would be

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subject to dismissal. The Missouri Highway Patrol is a division of the State of
Missouri, and the State of Missouri is absolutely immune from liability under §
1983. See Will v. Michigan Dept. of State Police, 491 U.S. 58, 63 (1989).
Similarly, plaintiff's claim against defendant Keathley, in his official capacity,
would also be subject to dismissal for these same reasons. Naming a government
official in his or her official capacity is the equivalent of naming the government
entity that employs the official, again, the State of Missouri. Will, 491 U.S. at 71.
“[N]either a State nor its officials acting in their official capacities are ‘persons’
under § 1983.” Id. As a result, even if plaintiff had brought his claims against
defendants pursuant to § 1983 they would fail to state a claim upon which relief
could be granted.
Last, given that the Court lacks jurisdiction over this matter, it will deny
plaintiff's motions for continuation of this action until his release from
incarceration and for change of venue.
Accordingly,
IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma
pauperis [Doc. #2] is GRANTED.

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IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee
of $1.57 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 plaintiff's motions for continuation and
for change of venue [Doc. #4 and #5] are DENIED.
IT IS FURTHER ORDERED that the Clerk shall not issue process or
cause process to issue upon the complaint because the Court lacks subject matter
jurisdiction over this action. See Fed.R.Civ.P.12(h)(3).
An Order of Dismissal will accompany this Memorandum and Order.
Dated this 7th day of January, 2013.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

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