Counts v. State of Missouri et al

Filing 7

MEMORANDUM AND ORDERIT IS HEREBY ORDERED that petitioner's motion for leave to proceed informa pauperis and motion for appointment of counsel [Doc. #2] is GRANTED INPART AND DENIED IN PART. Petitioner is granted in forma pauperis status,and his motion for counsel is denied as moot. IT IS FURTHER ORDERED that petitioner shall pay an initial partial filing fee of $56.25 within thirty (30) days from the date of this order. Petitioner is instructed to make his remittance payable to "C lerk, United States District Court," and to include upon it: (1) his name; (2) his prison registration number; (3) the casenumber; and (4) that the remittance is for an original proceeding. IT IS FURTHER ORDERED that the Clerk shall not issue pr ocess or cause process to issue, because the petition is legally frivolous and fails to state a claimupon 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. 2 ( Initial Partial Filing Fee due by 6/12/2015.) Signed by District Judge Jean C. Hamilton on 5/12/15. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

JAMES COUNTS,
Petitioner,
v.
STATE OF MISSOURI, et al.,
Respondents.

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No. 4:15-CV-644-NAB

MEMORANDUM AND ORDER
This matter is before the Court on James Counts’ (registration no. 1187482)
filing of a petition for writ of mandamus [Doc. #1] and motion for leave to proceed
in forma pauperis and to appoint counsel [Doc. #2]. The Court will grant petitioner
in forma pauperis status and assess an initial partial filing fee of $56.25, as set forth
below. See 28 U.S.C. ' 1915(b)(1). Furthermore, based upon a review of the
petition, the Court finds that this action should be dismissed pursuant to 28 U.S.C. '
1915(e)(2)(B). Petitioner’s motion for counsel will be denied.
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.
Petitioner has submitted an affidavit and a certified copy of his prison
account statement for the six-month period immediately preceding the submission
of his petition. See 28 U.S.C. ' 1915(a)(1),(2). A review of petitioner's account
statement indicates an average monthly deposit of $281.27, and an average
monthly account balance of $72.71. Petitioner has insufficient funds to pay the
entire filing fee.

Accordingly, the Court will assess an initial partial filing fee of

$56.25, which is 20 percent of petitioner'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 pleading
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
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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
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).
Moreover, in reviewing a pro se pleading under ' 1915(e)(2)(B), the Court
must give the petition 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 petitioner, unless the facts alleged are clearly baseless. Denton v. Hernandez,
504 U.S. 25, 32 (1992).
The Petition
Petitioner seeks a writ of mandamus pursuant to 28 U.S.C. ' 1651 against the
State of Missouri and Dent County Circuit Judges Kelly Parker and Sanborn Ball “to
compel [them] to release [petitioner] on probation or absent probation in [his]
criminal case, Dent County No. 08C7-CR00504-01.” Petitioner complains that ex
parte hearings are being held, in violation of his due process rights.
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Discussion
Petitioner's request for a writ of mandamus is legally frivolous. This Court is
authorized to issue writs of mandamus or other extraordinary writs only in aid of its
jurisdiction, either existing or potential. See 28 U.S.C.A. ' 1651(a); Middlebrooks
v. Thirteenth Judicial Dist. Circuit Court, Union County, 323 F.2d 485, 486 (8th Cir.
1963). The actions of the named respondents in this case are not within the
jurisdiction of this Court. See Middlebrooks, 323 F.2d at 486. Cf. Veneri v.
Circuit Court of Gasconade Co., 528 F.Supp. 496, 498 (E.D. Mo. 1981) (federal
courts have no superintending control over and are without authority to issue writ of
mandamus to direct state court or its judicial officers in performing duties).
Moreover, to the extent that petitioner is attempting to challenge or appeal a
state judge's order(s) in an underlying state criminal matter, the instant mandamus
petition is without merit. Federal district courts are courts of original jurisdiction;
they lack subject matter jurisdiction to engage in appellate review of state court
decisions. Postma v. First Fed. Sav. & Loan, 74 F.3d 160, 162 (8th Cir. 1996).
"[Federal] [r]eview of state court decisions may be had only in the Supreme Court."
Id.
The Court will not liberally construe this action as a petition for a writ of
habeas corpus under 28 U.S.C. ' 2254, because there is no indication that petitioner
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has exhausted his state remedies, and he has neither requested nor consented to such
a reclassification. See Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S.
484 (1973) (in the absence of exceptional circumstances, a state prisoner must
exhaust currently available and adequate state remedies before invoking federal
habeas corpus jurisdiction); Morales v. United States, 304 F.3d 764, 765 (8th Cir.
2002) (Court should not reclassify a pleading as a habeas corpus action, unless and
until petitioner has been afforded an opportunity either to withdraw the pleading or
to consent to the reclassification).
For these reasons, this action will be dismissed pursuant to ' 1915(e)(2)(B).
Accordingly,
IT IS HEREBY ORDERED that petitioner's motion for leave to proceed in
forma pauperis and motion for appointment of counsel [Doc. #2] is GRANTED IN
PART AND DENIED IN PART. Petitioner is granted in forma pauperis status,
and his motion for counsel is denied as moot.
IT IS FURTHER ORDERED that petitioner shall pay an initial partial filing
fee of $56.25 within thirty (30) days from the date of this order. Petitioner 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.
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IT IS FURTHER ORDERED that the Clerk shall not issue process or cause
process to issue, because the petition 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

12th

day of May, 2015.

\s\ Jean C. Hamilton
UNITED STATES DISTRICT JUDGE

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