Harris v. Loken et al

Filing 11

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 $11.21 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) 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 is legally frivolous and fails to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B). IT IS FURTHER ORDERED that all other pending motions are DENIED as moot. A separate Order of Dismissal shall accompany this Memorandum and Order. Signed by District Judge Carol E. Jackson on 3/6/15. (JAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

TYRONE HARRIS,
Plaintiff,
v.
HONORABLE JAMES B. LOKEN,
et al.,
Defendants.

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No. 4:15-CV-76-CEJ

MEMORANDUM AND ORDER
This matter is before the Court on the application of Tyrone Harris
(registration no. 15730-041) 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 $11.21.
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 $56.07, and an average monthly
account balance of $7.05. Plaintiff has insufficient funds to pay the entire filing

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fee. Accordingly, the Court will assess an initial partial filing fee of $11.21, 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 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 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).
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, 32-33 (1992).
The Complaint
Plaintiff, an inmate at the Federal Correctional Institution in Greenville,
Illinois, seeks monetary relief in this action against three Eighth Circuit Court of
Appeals judges: James B. Loken, Bobby E. Shepard, and Kermit Bye. Plaintiff
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alleges that defendants conspired to deprive him of his constitutional rights “by
supplanting the community care taking doctrine under the guise of it being the
district court’s ultimate legal conclusion.”
Discussion
The Court will liberally construe this action as having been brought pursuant
to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S.
388 (1971). After carefully reviewed plaintiff's allegations, the Court concludes
that the complaint is legally frivolous. The allegations do not rise to the level of a
constitutional violation and fail to state a claim or cause of action. Moreover,
judges are immune from suit under § 1983. Mireles v. Waco, 502 U.S. 9, 11
(1991) (“Judicial immunity is an immunity from suit, not just from ultimate
assessment of damages.”); see also Robinson v. Freeze, 15 F.3d 107, 108 (8th Cir.
1994) (“Judges performing judicial functions enjoy absolute immunity from §
1983 liability.”). For these reasons, this action will be dismissed, without
prejudice.
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 $11.21 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 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).
IT IS FURTHER ORDERED that all other pending motions are DENIED
as moot.
A separate Order of Dismissal shall accompany this Memorandum and
Order.
Dated this 6th day of March, 2015.

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UNITED STATES DISTRICT JUDGE

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