Gales v. Graham

Filing 5

MEMORANDUM AND ORDER re: 2 MOTION for Leave to Proceed in forma pauperis on appeal under 42:1983 (prisoner) filed by Plaintiff Gregory Lynn Gales; motion is GRANTED. IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of � 36;24 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 this action is DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim upon which relief can be granted. An Order of Dismissal will accompany this Memorandum and Order. (Initial Partial Filing Fee due by 10/23/2014.) Signed by District Judge Stephen N. Limbaugh, Jr on 9/23/14. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
GREGORY LYNN GALES,
Plaintiff,
v.
MICHAEL GRAHAM,
Defendant.

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No. 4:14CV1315 SNLJ

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Gregory Gales (registration no.
73659), an inmate at Norton Correctional Facility (“NCF”) in Norton, Kansas, 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 $24. 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).
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 $118,
and an average monthly balance of $19. Plaintiff has insufficient funds to pay the entire
filing fee. Accordingly, the Court will assess an initial partial filing fee of $24, 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 Alacks an arguable basis in either law or fact.@
Neitzke v. Williams, 490 U.S. 319, 328 (1989); Denton v. Hernandez, 504 U.S. 25, 31
(1992). 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). A
complaint fails to state a claim 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).

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The Complaint
Plaintiff brings this action under 42 U.S.C. § 1983 against Dr. Michael Graham, a
forensic pathologist at St. Louis University Hospital.

Plaintiff’s cause of action is

unclear. Plaintiff alleges that Graham was subpoenaed to appear at his September 2001
criminal trial in Kansas. Plaintiff further alleges that Graham did not appear for the trial.
Plaintiff was convicted of the charged crime. Plaintiff says he has been hindered from
bringing a claim before the Court of Appeals for the Tenth Circuit because Graham is
located in Missouri, not Kansas. Plaintiff requests that this Court “give the Tenth Circuit
subject matter jurisdiction of procedural due process out of [the Eastern District of
Missouri] via a order that they can grant relief via a U.S.C. 2254 second and successive
application.”
Discussion
The Court cannot grant the requested relief. The jurisdiction of the various federal
courts is controlled by statute.
Moreover, the allegations in the complaint do not state a claim under 42 U.S.C.
§ 1983. Nor can the Court envision any amendment to the complaint that might give rise
to a cognizable cause of action. As a result, the Court will dismiss this action without
further proceedings.
Accordingly,
IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis
[ECF No. 2] is GRANTED.

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IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of
$24 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 this action is DISMISSED pursuant to 28
U.S.C. § 1915(e)(2)(B) for failure to state a claim upon which relief can be granted.
An Order of Dismissal will accompany this Memorandum and Order.
Dated this 23rd day of September, 2014.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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