Lemicy v. Mayer

Filing 6

MEMORANDUM AND ORDER re: 4 MOTION to Appoint Counsel filed by Plaintiff Anthony Lemicy, 2 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff Anthony Lemicy. IT IS HEREBY ORDERED that plaintiff's m otion to proceed in forma pauperis [Doc. #2] is GRANTED.IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $1.00 within thirty (30) days of the date of this Order. Plaintiff is instructed to make his remittance payable t o "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 DIS MISSED pursuant to 28 U.S.C. § 1915(e)(2)(B). IT IS FURTHER ORDERED that to the extent that there are any state law claims encompassed in the complaint, the Court will decline to exercise supplemental jurisdiction over them. See 28 U.S.C. § 1367(c)(3).IT IS FURTHER ORDERED that plaintiff's motion for appointment of counsel [Doc. #4] is DENIED AS MOOT. A separate Order of Dismissal shall accompany this Memorandum and Order. (Initial Partial Filing Fee due by 1/4/2016.) Signed by District Judge Stephen N. Limbaugh, Jr on 12/3/15. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ANTHONY LEMICY,
Plaintiff,
v.
THOMAS W. MAYER,
Defendant.

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No. 4:15CV1413 SNLJ

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff Anthony Lemicy, an inmate
at St. Louis City Justice Center, 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 $1.00.
See 28 U.S.C. § 1915(b)(1). Furthermore, based upon a review of the complaint, the Court finds
that the federal claims in the complaint should be dismissed pursuant to 28 U.S.C. §
1915(e)(2)(B). To the extent that there are any state law claims encompassed in the complaint,
the Court will decline to exercise supplemental jurisdiction over such claims. See 28 U.S.C. §
1367(c)(3).
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 states that he has been unable to attain a certified account statement from the St.
Louis City Justice Center.1 As a result, the Court will require plaintiff to pay an initial partial
filing fee of $1.00. See Henderson v. Norris, 129 F.3d 481, 484 (8th Cir. 1997) (when a prisoner
is unable to provide the Court with a certified copy of his prison account statement, the Court
should assess an amount “that is reasonable, based on whatever information the court has about
the prisoner=s finances.”). If plaintiff is unable to pay the initial partial filing fee, he must submit
a copy of his prison account statement in support of his claim.
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 “it lacks an arguable basis in either law or in fact.” Neitzke v. Williams, 490 U.S.
319, 328 (1989). An action is malicious when it is undertaken for the purpose of harassing
litigants 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).
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
1

Plaintiff has only been able to attain an informal copy of a “Resident Funds Inquiry” showing
his two months of his commissary purchases and his requests for copies from the law library.
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complaint 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 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, 1951-52.
The Complaint
Plaintiff brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his civil
rights in relation to his current criminal action in St. Louis City Court.
From the court records available on Missouri.Case.Net, as well as plaintiff’s complaint,
the Court has been able to ascertain that plaintiff was charged with robbery in the first degree,
assault in the second degree, and two counts of armed criminal action after he was arrested on
March 9, 2015. See State v. Lemicy, Case No. 1522-CR01250-01 (22nd Judicial Circuit, St. Louis
City). It appears that plaintiff has been incarcerated since that time.
Plaintiff states in his complaint that he was placed in a line-up on April 1, 2015 by
Detective Thomas Mayer. He claims that his counsel was not present at the line-up and that he
was not read his Miranda rights prior to the “identification line-up.”

He claims that he had a

discussion with Detective Mayer about a “burglary in the area” where he works in January of

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2015, but he hadn’t heard from Detective Mayer again prior to being placed in the line-up.
Plaintiff believes the line-up was “unduly suggestive” and in violation of his due process rights.
Plaintiff has not stated any other assertions with regard to the line-up or with relation to
Detective Mayer, other than to state in a conclusory manner that he believes his “5th, 6th and 14th
Amendments of the Constitution” have been violated.2
In his request for relief, plaintiff requests “an adequate chance to get this case dismissed,”
and he asks for $300,000 in monetary damages.
Discussion
This Court is not a court of appeal for state court criminal actions. Postma v. First Fed.
Sav. & Loan, 74 F.3d 160, 162 (8th Cir. 1996). “Review of state court decisions may be had
only in the Supreme Court.” Id. As a consequence, the Court will deny plaintiff’s request to
enjoin his state court criminal action.
Additionally, plaintiff’s claims for “expungement” and “to vacate” his criminal case and
criminal record are claims that arise under habeas corpus. In order to pursue such claims,
plaintiff must bring an action in habeas corpus after/or if, he has been convicted, pursuant to 28
U.S.C. § 2254. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). In the meantime, the
present case will be dismissed for the following reasons.

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“[T]he Due Process Clause requires suppression of an eyewitness identification tainted by
police arrangement.” Perry v. New Hampshire, 132 S. Ct. 716, 724 (2012). “[D]ue process
concerns arise only when law enforcement officers use an identification procedure that is both
suggestive and unnecessary. Even when the police use such a procedure . . . suppression of the
resulting identification is not the inevitable consequence.” Id. (citations omitted). Plaintiff has
not cited any facts indicating that “improper police conduct created a substantial likelihood of
misidentification.” Id. (quotations and citations omitted). As such, he has not stated a claim
under the due process clause in this case.
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Even if plaintiff=s claims were not legally frivolous, this Court would have to abstain
from hearing this action as a result of plaintiff=s ongoing state criminal action pursuant to the
Younger v. Harris, 401 U.S. 37, 53-54 (1971).
In Younger v. Harris, 401 U.S. at 46, the Supreme Court directed federal courts to abstain
from hearing cases where "the action complained of constitutes the basis of an ongoing state
judicial proceeding, the proceedings implicate important state interests, and an adequate
opportunity exists in the state proceedings to raise constitutional challenges." Harmon v. City of
Kansas City, Missouri, 197 F.3d 321, 325 (8th Cir. 1999); see also, Fuller v. Ulland, 76 F.3d
957, 959 (8th Cir. 1996). Having carefully reviewed the case at bar, the Court concludes that the
Younger criteria are satisfied and that abstention from this matter is warranted.
Moreover, the Court finds that to some extent, plaintiff’s case is styled as though it is a
petition for writ of mandamus, brought pursuant to 28 U.S.C. § 1651. Plaintiff appears to ask
this Court to instruct the state court judge in his criminal case to strike the line-up evidence
against him. Moreover, plaintiff bases his request on nothing more than a conclusory statement
that the line-up was “suggestive.” Such an application for mandamus, or for an injunction
against state court actors enforcing state laws against a petitioner, is legally frivolous, and this
Court must abstain from engaging in such a practice.
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 defendant state court judge in this case are not within the jurisdiction of this Court.
See Middlebrooks, 323 F.2d at 486; 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

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authority to issue writ of mandamus to direct, state court or its judicial officers in performing
duties). The better action is for plaintiff to pursue this line of inquiry in his state court criminal
action.
Accordingly,
IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [Doc.
#2] is GRANTED.
IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $1.00
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).
IT IS FURTHER ORDERED that to the extent that there are any state law claims
encompassed in the complaint, the Court will decline to exercise supplemental jurisdiction over
them. See 28 U.S.C. § 1367(c)(3).
IT IS FURTHER ORDERED that plaintiff’s motion for appointment of counsel [Doc.
#4] is DENIED AS MOOT.
A separate Order of Dismissal shall accompany this Memorandum and Order.
Dated this 3rd day of December, 2015.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE
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