McAllister v. Holtshouser et al

Filing 7

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiffs motion to proceed in forma pauperis [Doc. #2] is granted. IT IS FURTHER ORDERED that plaintiff shall pay an initial filing fee of $2.61 within thirty (30) days of the date of this Orde r. 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 procee ding. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue, because the complaint is legally frivolous and fails to state a claim upon which relief can be granted. See 28 U.S.C. § 1915(e)(2)(B). IT IS FURTHER ORDERED that plaintiffs motion for appointment of counsel [Doc. #4] is denied as moot. A separate dismissal order will be filed. Signed by District Judge Carol E. Jackson on 3/10/2014. (KMS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

OTIS MCALLISTER,
Plaintiff,
v.
STEVEN E. HOLTSHOUSER, et al.,
Defendants.

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No. 4:13-CV-2146-CEJ

MEMORANDUM AND ORDER
This matter is before the Court on the motion of Otis McAllister (registration
no. 31649-044) for leave to commence this action without payment of the required
filing fee [Doc. #2]. For the reasons stated below, the Court will grant plaintiff in
forma pauperis status and assess an initial partial filing fee of $2.61. In addition, the
Court will dismiss this action as to all defendants under 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
$8.17, and an average monthly balance of $13.07. Plaintiff has insufficient funds to
pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee
of $2.61, 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 may 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 against a defendant who is
immune from such relief. An action is frivolous if “it lacks an arguable basis in either
law or in fact.” Neitzke v. Williams, 490 U.S. 319, 328 (1989).

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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 “contextspecific 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
proffered conclusion is the most plausible or whether it is more likely that no
misconduct occurred. Id. at 1950, 1951-52.
The Complaint
Plaintiff, an inmate at the Oklahoma City Federal Transfer Center, seeks
monetary relief in this action brought pursuant to Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Named as defendants are
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Assistant United States Attorneys Steven E. Holtshouser and Christian Stevens ( and
Federal Bureau of Investigation special agents Michael Christian , Brian Yingling,
and Larry Skora. As more fully set forth below, plaintiff alleges that defendants
violated his Fifth, Eighth, and Fourteenth Amendment rights by divulging “the fact
that [he] had previously proffered information concerning a murder, bank robbery,
and other crimes.” Plaintiff is suing defendants in their individual capacities.
Discussion
Plaintiff alleges that in October 2011 he assisted a fellow inmate, Andre
Worthy, by providing him “with a copy of [plaintiff’s] 302 that illustrated
prosecutorial misconduct on AUSA Holtshouser’s behalf and had consequence on
inmate Worthy’s conviction.” Plaintiff further alleges that Worthy “incorporated this
said 302 within a motion requesting permission to file a successive habeas [action]1
based on newly discovered evidence and Mr. Holtshouser’s malfeasance.” Plaintiff
claims that approximately one month later, and in retaliation for plaintiff’s attempt
to assist Worthy, Holtshouser filed a “totally irrelevant and immaterial” brief in
response to Worthy’s motion for permission to file a successive habeas claim.
Plaintiff asserts that in this brief, Holtshouser “unnecessarily divulg[ed] . . . for no

1

See Worthy v. U.S., Case No. 11-2797-EMSL (8th Cir. 2011). The Court takes
judicial notice of this case and the documents filed therein.
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plausible reason other than malice and to inflict punishment” the “highly sensitive
fact” that plaintiff had previously proffered information in strict confidence
concerning a murder, bank robbery, and “other crimes.” Plaintiff alleges that Worthy
subsequently became hostile towards him and, based on Holtshouser’s disclosure,
“disseminated the news throughout the prison that [plaintiff] was a ‘snitch.’”
According to plaintiff, Holtshouser “accomplished his desired effect of placing
[plaintiff] in danger of being assaulted, maimed or killed . . . as a result of his
unnecessary and malicious disclosure.” Plaintiff claims that prison officials verified
the existence of a substantial threat to petitioner’s safety and placed him in
“protective custody - isolated confinement - indefinitely.” Plaintiff states that
Holtshouser “unnecessarily created an environment with a high potential for violence
and endangered plaintiff’s safety.”
A prosecutor is immune from personal liability from actions related to the
performance of his public duties, including presenting evidence before a grand jury,
obtaining of criminal complaints and warrants, prosecuting a case, and other actions
undertaken as an advocate for the government. Burns v. Reed, 500 U.S. 478, 485–86
(1991); Imbler v. Pachtman, 424 U.S. 409, 420–23 (1976). Because plaintiff’s
allegations are directed at actions allegedly taken by an Assistant United States
Attorney as an advocate for the government in the context of replying to Worthy’s
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successive habeas corpus application, defendant Holtshouser is entitled to absolute
immunity. See Bruce v. Wade, 537 F.2d 850, 852 (5th Cir. 1976) (prosecutor has
absolute immunity for presentation of evidence at post-sentencing federal habeas
corpus proceedings). Plaintiff’s claims will, therefore, be dismissed pursuant to 28
U.S.C. § 1915(e)(2)(B).
Plaintiff’s remaining claims concern the alleged “collaboration” of defendants
Holtshouser, Stevens, Christian, Yingling, and Skora on November 4, 2011, “to
endanger plaintiff’s safety,” in violation of his constitutional rights. Plaintiff asserts
that, at some unspecified time prior to November 4, he wrote a letter to the “AUSA’s
office in the Eastern District of Missouri” in which he “conveyed the idea of setting
up two individuals for a bank robbery.” Plaintiff believes that the letter “was passed
on to the appropriate authorities.” In addition, plaintiff asserts that on November 3,
2011, he confidentially contacted the FBI from prison and provided agents with
“credible information” relative to a bank robbery that led to the arrest of three men.
Plaintiff claims that the three FBI special agents, defendants Christian, Yingling, and
Skora, disclosed in an affidavit both plaintiff’s name and his cooperation efforts that
led to the arrests. Plaintiff further claims that, with a reckless disregard for his safety,
defendants Holtshouser and Stevens “collaborated with, was privy to, managed and/or
influenced the named defendants which segued into the malicious and deliberate
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indifference filing of the affidavit in open court disclosing [plaintiff’s] legal name
[and] detailing [his] role in the arrests.” Plaintiff claims that as a consequence of
Holtshouser’s and Stevens’ filing of the affidavit, “the mass media, i.e., T.V., radio,
newspapers, and the internet highly publicized [his] cooperation and whereabouts.”
Plaintiff complains that he was “deprived of the right of choice to testify in court
regarding the information he provided before the information was made public.”
Plaintiff does not identify the case in which this affidavit allegedly was filed;
however, he appears to be referencing a federal bank robbery trial involving three
men who were arrested based on information he supplied to the FBI. Assuming these
facts to be true, the Court will dismiss plaintiff’s “collaboration claims” against all
defendants on the ground of absolute immunity. Plaintiff does not allege that
defendants disclosed his involvement directly to the media, but rather, that they filed
an affidavit in court, which the press subsequently obtained and publicized.2 The
government’s filing of an affidavit in a criminal case constitutes an activity
“intimately associated with the judicial phase of the criminal process,” Imbler, 424
U.S. at 430, and thus, absolute immunity is warranted. This immunity extends not

2

“Comments to the media have no functional tie to the judicial process just
because they are made by a prosecutor.” Buckley v. Fitzsimmons, 509 U.S. 259, 277
(1993) (denying absolute immunity to a prosecutor for statements made during his
press conference).
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only to the Assistant United States Attorneys, but to the FBI special agents, as well.
Cf. Daloia v. Rose, 849 F.2d 74, 75-76 (2d Cir. 1988) (FBI agents entitled to absolute
immunity for testimony at pretrial suppression hearing); Collis v. U.S., 498 F.Supp.2d
764, 771 (D.Md. 2007) (FBI agent entitled to absolute immunity as government
witness testifying before grand jury). For these reasons, this action will be dismissed
as legally frivolous and for failure to state a claim or cause of action against any of
the named defendants.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma
pauperis [Doc. #2] is granted.
IT IS FURTHER ORDERED that plaintiff shall pay an initial filing fee of
$2.61 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, because the complaint is legally frivolous and fails to state a claim
upon which relief can be granted. See 28 U.S.C. § 1915(e)(2)(B).

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IT IS FURTHER ORDERED that plaintiff’s motion for appointment of
counsel [Doc. #4] is denied as moot.
A separate dismissal order will be filed.
Dated this 10th day of March, 2014.

UNITED STATES DISTRICT JUDGE

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