Thorne v. Brown et al

Filing 7

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [ECF No. 2 ] is GRANTED. IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $23.37 within thirty (30) days of the da te 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 o riginal proceeding. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the complaint because the complaint fails to state a claim upon which relief can be granted. IT IS FURTHER ORDERED that plaintiff's motion for appointment of counsel [ECF No. 4 ] is DENIED AS MOOT. An Order of Dismissal will accompany this Memorandum and Order. (Initial Partial Filing Fee due by 2/27/2013.) Signed by District Judge E. Richard Webber on January 28, 2013. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
TIMOTHY J. THORNE, SR.,
Plaintiff,
v.
DENISE BROWN, et al.,
Defendants.

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No. 4:12CV02193 ERW

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff (registration no.
359521), an inmate at Eastern Reception, Diagnostic and 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 $23.37. 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), as plaintiff’s
allegations are barred by the five-year statute of limitations.
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
$116.83, and an average monthly balance of $2.12. Plaintiff has insufficient funds to
pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee
of $23.37, 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.”
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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 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.
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The Complaint
Plaintiff an inmate at Eastern, Reception, Diagnostic and Correctional Center
(“ERDCC”), formerly incarcerated at St. Francois County Jail (“SFCJ”), seeks relief
in this 42 U.S.C. § 1983 action against numerous named defendants: Denise Brown
(Police Officer, Desloge Police Dept.); Unknown Malone (Macoupin County Sheriff’s
Dept.); Unknown Koese (Deputy, St. Francois County Sheriff’s Dept.); Unknown
Harris (Deputy, St. Francois County Sheriff’s Dept.); Unknown Honey (Deputy, St.
Francis County Sheriff’s Dept.); Dan Bullock (Sheriff, St. Francois County Sheriff’s
Dept.); Wayne Williams (Public Defender); Charlton Chastain (Public Defender); Scott
Thompson (Public Defender); Barbara Hoppe (Director, MO Public Defender’s Office)
and; Marty Robinson (Director, MO Public Defender’s Office).
Plaintiff alleges that in November of 2002, defendant Brown came to see him at
the Macoupin County Jail in Carlinville, Illinois, about an outstanding warrant from St.
Francois County, Missouri. He claims that defendant Brown conspired with defendant
Malone, a deputy with the Macoupin County Sheriff’s Department, to have “plaintiff
attacked” and beaten so that he would confess to certain criminal charges. Plaintiff
claims that defendant Brown continued her threats and mistreatment of plaintiff even
after she returned with plaintiff to St. Francois County Jail on or about November 18,
2002. Plaintiff alleges that defendant Brown recruited defendants Koese, Harris,
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Honey and Bullock’s assistance in coercing and threatening plaintiff, even going so far
as to have plaintiff attacked by other inmates, until he made a “bogus videotape
confession” on or about the end of November in 2002. In all, plaintiff alleges that he
was beaten in SFCJ such that he lost about 80% of the eyesight in his right eye, had
tissue damage on the right side of his head and continues to have shoulder pain and
headaches. Plaintiff alleges that the defendants from SFCJ paid other inmates in
cigarettes to hurt him , that they put him in a “rubber room” for two days without water
and toilet use, that they forced him to confess to crimes he did not commit, and that he
was refused his medication and, as a result, had seizures.
Plaintiff further claims that defendant Williams, his first public defender, failed
to do anything about the treatment he received from the St. Francois County officials,
telling plaintiff not to “make waves.” Plaintiff asserts that defendant Williams failed
to protect him or render him effective assistance of counsel during his alleged
representation of plaintiff between November 2002 and November 2003.
Plaintiff asserts that defendant Chastain, his second assigned public defender,
who he received in November of 2003, lied to him and also rendered him ineffective
assistance of counsel. Plaintiff makes similar allegations against his post-conviction
assigned attorney, defendant Thompson, as well as the Division Directors of the
Missouri Department of Public Defenders, Barbara Hoppe and Marty Robinson. These
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allegations arose, according to plaintiff when he filed his appellate proceedings in state
court in 2004.
Plaintiff seeks monetary relief for the alleged violations of his constitutional
rights.
Discussion
“Although the statute of limitations is an affirmative defense, a district court may
properly dismiss an in forma pauperis complaint under 28 U.S.C. § 1915[] when it is
apparent the statute of limitations has run.” Myers v. Vogal, 960 F.2d 750, 751 (8th
Cir. 1992). Section 1983 claims are analogous to personal injury claims and are
subject to Missouri’s five-year statute of limitations. Sulik v. Taney County, Mo., 393
F.3d 765, 766-67 (8th Cir. 2005); Mo. Rev. Stat. § 516.120(4). All of the allegations
plaintiff complains of in his complaint arose prior to the last five years. As such his
claims are barred by the statute of limitations and are subject to dismissal.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma
pauperis [ECF No. 2] is GRANTED.
IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of
$23.37 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:
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(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 fails to state a claim upon
which relief can be granted.
IT IS FURTHER ORDERED that plaintiff’s motion for appointment of
counsel [ECF No. 4] is DENIED AS MOOT.
An Order of Dismissal will accompany this Memorandum and Order.
So Ordered this 28th day of January, 2013.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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