Miller v. U.S. Bankruptcy Court, Eighth Circuit, Eastern District, Order #05-00402

Filing 7

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 the Clerk shall not issue process or cause process to be issued, because this action is legally frivolous and fails to state a claims for relief. See 28 U.S.C. ' 1915(e)(2)(B). A separate Order of Dismissal shall accompany this Memorandum and Order. Signed by District Judge Rodney W. Sippel on 7/9/14. (JWD)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KEVIN P. MILLER,
Petitioner,
v.
UNITED STATES BANKRUPTCY
COURT, EIGHTH CIRCUIT,
EASTERN DISTRICT,
ORDER #05-00402,
Respondent.

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No. 4:14-CV-1026-RWS

MEMORANDUM AND ORDER
This matter is before the Court on Kevin P. Miller's motion for leave to
commence this action without payment of the required filing fee [Doc. #2]. Upon
consideration of the financial information provided with the motion, the Court finds
that plaintiff is financially unable to pay the filing fee, and therefore, the motion will
be granted. Furthermore, for the reasons set forth below, the Court will dismiss this
action pursuant to 28 U.S.C. ' 1915(e)(2)(B).
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 at any time 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 Ait lacks an arguable basis
in either law or in fact.@ Neitzke v. Williams, 490 U.S. 319, 328 (1989). An action
fails to state a claim upon which relief can be granted if it does not plead Aenough
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 or petition 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

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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.
In reviewing a pro se complaint or petition under ' 1915(e)(2)(B), the Court
must give the pleading 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 Petition
Petitioner brings this petition for writ of mandamus [Doc. #1], challenging an
order of the "U.S. Bankruptcy Court, Eighth Circuit, Eastern District #05-00402,"
which he claims unconstitutionally prohibits him from "filing papers or a complaint
in the court." On July 2, 2014, and pursuant to this Court's orders of June 11 and
June 20, 2014, petitioner submitted a copy of the allegedly unconstitutional order.
Discussion
The Court notes that although petitioner stated in his petition for writ of
mandamus that the contested order was entered in 2006, the order he submitted to
the Court is dated June 27, 2005 [Doc. #6]. The Court further notes that the June 27
order in no way prohibits petitioner from filing documents. Rather, the said order
indicates that the Bankruptcy Clerk accepted certain documents from Mr. Miller on
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June 27, 2005, "as a Miscellaneous file." The order states that the documents
requested, in part, an automatic stay under 11 U.S.C. § 362; however, the Court
determined that it was "without jurisdiction to enter an automatic stay in the
circumstances described in the documents." As such, the Court denied Mr. Miller's
request for an automatic stay, ordered the Clerk to send copies of the documents to
the United States Court of Appeals for the Federal Circuit for "informational
purposes," and closed the miscellaneous file.
Because the order in question in no way unconstitutionally prohibits
petitioner from "filing papers or a complaint in the court," this action will be
dismissed as legally frivolous and for failure to state a plausible claim for relief
under 28 U.S.C. ' 1915(e)(2)(B).
Accordingly,
IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in
forma pauperis [Doc. #2] is GRANTED.
IT IS FURTHER ORDERED that the Clerk shall not issue process or cause
process to be issued, because this action is legally frivolous and fails to state a claims
for relief. See 28 U.S.C. ' 1915(e)(2)(B).

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A separate Order of Dismissal shall accompany this Memorandum and Order.
Dated this 9th day of July, 2014.

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UNITED STATES DISTRICT JUDGE

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