Barkfelt v. State of Missouri et al

Filing 5

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 $1.70 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 gra nted. See 28 U.S.C. ' 1915 (e)(2)(B). IT IS FURTHER ORDERED that the Clerk shall send plaintiff a court form for filing a 28 U.S.C. ' 2254 habeas corpus action. A separate Order of Dismissal shall accompany this Memorandum and Order. (copy of form and order sent to plaintiff) Signed by District Judge Carol E. Jackson on 7/22/2015. (KMS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DALE C. BARKFELT,
Plaintiff,
v.
STATE OF MISSOURI, et al.,
Defendants.

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No. 4:15-CV-836-CEJ

MEMORANDUM AND ORDER
This matter is before the court on the motion of Dale C. Barkfelt
(registration no. 1095173) for leave to commence this action without payment of
the required filing fee [Doc. #2]. For the following reasons, the motion will be
granted, and plaintiff will be assessed an initial partial filing fee of $1.70. In
addition, the court will dismiss this case pursuant to 28 U.S.C. ' 1915.
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 $8.50 and an average monthly balance of $0.00.

Accordingly, the court will

assess an initial partial filing fee in the amount of $1.70, which is twenty percent of
the average monthly deposit.
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 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

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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 that are not
entitled to the assumption of truth.
(2009).

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950-51

These include Alegal conclusions@ and A[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 Acontext-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 Amere
possibility of misconduct.@ Id. The court must review the factual allegations in
the complaint Ato 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 1950-52.
In reviewing a pro se complaint under ' 1915(e)(2)(B), the court must give
the complaint the benefit of a liberal construction.

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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 and Supplement
Plaintiff, an inmate at the Farmington Correctional Center, brings this 42
U.S.C. ' 1983 action against the State of Missouri and the federal government.
Plaintiff complains that his state sentence of imprisonment is running
consecutively, rather than concurrently, to his federal sentence of imprisonment.
Plaintiff seeks $10 million in damages for false incarceration, and he asks to be
transferred to a federal prison “with 9 year Feds time, not 10 years for state and 9
for Feds.”
Discussion
Having carefully reviewed the complaint, the court concludes that this §
1983 action is legally frivolous. The State of Missouri is not a Aperson@ for
purposes of ' 1983 and is absolutely immune from liability. See Will v. Michigan
Dept. of State Police, 491 U.S. 58, 63 (1989).

Moreover, liberally construing the

complaint as a Bivens-type 1 action for monetary damages against the federal
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Suits for monetary damage against federal officials for the violation of
constitutional rights are authorized under Bivens v. Six Unknown Named Agents of
Fed. Bureau of Narcotics,403 U.S. 388 (1971).
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government, the court concludes that plaintiff's allegations are legally frivolous.
A Bivens action for monetary damages cannot be maintained against the United
States or a federal agency. See FDIC v. Myer, 510 U.S. 471, 484-85 (1994). In
addition, the court notes that transfers from one prison to another are entirely within
the discretion of prison officials. Lyon v. Farrier, 727 F.2d 766, 768 (8th Cir.
1984).
Last, to the extent that plaintiff is challenging the execution of his sentence,
the court finds that his claims are cognizable exclusively under 28 U.S.C. ' 2254,
not 42 U.S.C. ' 1983.

See Preiser v. Rodriguez, 411 U.S. 475, 490 (1973)

(habeas corpus is the appropriate remedy for prisoners attacking the validity of the
fact or length of their confinement).

The court will instruct the Clerk to provide

plaintiff with a copy of the form for filing a 28 U.S.C. ' 2254 habeas corpus action
in the event he wishes to challenge the execution of his state sentence.
For these reasons, this action will be dismissed pursuant to § 1915(e)(2)(B).
In accordance with the foregoing,
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 $1.70 within thirty (30) days from the date of this order. Plaintiff is

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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 the Clerk shall send plaintiff a court
form for filing a 28 U.S.C. ' 2254 habeas corpus action.
A separate Order of Dismissal shall accompany this Memorandum and
Order.
Dated this 22nd day of July, 2015.

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UNITED STATES DISTRICT JUDGE

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