Scott v. Koster et al

Filing 6

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in forma pauperis [Doc. # 2 ] is GRANTED. IT IS FURTHER ORDERED that plaintiff shall pay an initial partial filing fee of $29.07 within thirty (30) d ays from 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) th at the remittance is for an original proceeding. IT IS FURTHER ORDERED that plaintiff's motion for appointment of counsel [Doc. # 4 ] is DENIED as moot. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upo n the complaint, because the complaint is legally frivolous and fails to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B).A separate Order of Dismissal shall accompany this Memorandum and Order.(Initial Partial Filing Fee due by 6/5/2013.) Signed by District Judge Catherine D. Perry on May 6, 2013. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

KERWIN D. SCOTT,
Plaintiff,
v.
CHRIS KOSTER, et al.,
Defendants.

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No. 4:13-CV-604-CDP

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Kerwin D. Scott
(registration no. 520941) 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 therefore, the motion will be
granted, and plaintiff will be assessed an initial partial filing fee of $29.07. See 28
U.S.C. § 1915(b)(1). Furthermore, based upon a review of the complaint, 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
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. See 28 U.S.C. § 1915(a)(1),(2). A review of plaintiff's account statement
indicates an average monthly deposit of $40.92, and an average monthly account
balance of $145.34. Plaintiff has insufficient funds to pay the entire filing fee.
Accordingly, the Court will assess an initial partial filing fee of $29.07, which is 20
percent of plaintiff's average monthly balance.
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
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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
(2007).
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
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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.
Moreover, in reviewing a pro se complaint under § 1915(e)(2)(B), the Court
must give the complaint 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 (1992).
The Complaint
Plaintiff, an inmate at the Potosi Correctional Center, seeks declaratory relief
for the violation of his Fifth and Fourteenth Amendment rights under the United
States Constitution and his state rights under Article I, Section 19 of the Missouri
State Constitution. The named defendants are Chris Koster (Attorney General, State
of Missouri), Mary A. Twitty (Court Clerk, City of Ferguson Municipal Court),
Ronald Brockmeyer (Judge, City of Ferguson Municipal Court), April Porter
(Assistant Prosecuting Attorney, St. Louis County), and George A. Lombardi
(Director, Missouri Department of Corrections).
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Plaintiff alleges that October 29, 2007, in the Municipal Court of Ferguson,
Missouri, he pled guilty to charges of driving while intoxicated, driving with a
revoked license, and leaving the scene of an accident. He states that he was
sentenced to time served and was assessed $15 for court costs. Plaintiff further
claims that on August 25, 2008, he was forced to plead guilty to the very same
charges in St. Louis County Circuit Court and that he was sentenced on December 5,
2008, to ten years for driving while intoxicated, six months for leaving the scene of
an accident, and six months for operating a vehicle while his driver's license was
revoked. Plaintiff is challenging "the execution of his multiple [state] sentences" and
claims that defendants violated his right against double jeopardy, as well as his rights
to equal protection of the law and due process.
Discussion
A. Federal Claims
The Court will liberally construe plaintiff's Fifth and Fourteenth Amendment
claims as having been brought pursuant to 42 U.S.C. § 1983.
Plaintiff's constitutional claims challenge the fact or duration of his present
confinement, because a favorable decision would necessarily imply the invalidity of
his continued confinement. In this regard, the Court notes that in actions asserting
claims for an allegedly unconstitutional conviction or imprisonment, or for other
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harm caused by actions that would render a conviction or sentence invalid, a § 1983
plaintiff must first prove that the conviction or sentence has been reversed, expunged,
declared invalid by a state tribunal, or called into question by a federal court's
issuance of a writ of habeas corpus. Heck v. Humphrey, 512 U.S. 477 (1994).
Because plaintiff does not allege, and there is no indication, that his conviction or
sentence has been reversed, expunged, invalidated, or called into question, his federal
claims are presently barred by the United States Supreme Court's holding in Heck,
and they will be dismissed accordingly.
B. State Claims
Because plaintiff's federal claims will be dismissed, his remaining pendent state
claims will also be dismissed. See 28 U.S.C. § 1367(c)(3); United Mine Workers v.
Gibbs, 383 U.S. 715, 726 (1966) (if federal claims are dismissed before trial,
remaining state claims should also be dismissed); Hassett v. Lemay Bank & Trust
Co.,851 F.2d 1127, 1130 (8th Cir. 1988) (where federal claims have been dismissed,
district courts may decline jurisdiction over pendent state claims as a "matter of
discretion").
In accordance with the foregoing,
IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in
forma pauperis [Doc. #2] is GRANTED.
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IT IS FURTHER ORDERED that plaintiff shall pay an initial partial filing
fee of $29.07 within thirty (30) days from 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 motion for appointment of
counsel [Doc. #4] is DENIED as moot.
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 and
fails to state a claim upon which relief may be granted.

See 28 U.S.C.

§ 1915(e)(2)(B).
A separate Order of Dismissal shall accompany this Memorandum and Order.
Dated this 6th day of May, 2013.

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UNITED STATES DISTRICT JUDGE

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