McDowell v. Alizadeh et al

Filing 4

MEMORANDUM AND ORDER...IT IS HEREBY ORDERED that plaintiffs motion to proceed in forma pauperis [ECF No. 2 ] is GRANTED. IT IS FURTHER ORDERED that the plaintiff must pay an initial filing fee of $7.00 within thirty (30) days of the date of t his 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 without prejudice. An Order of Dismissal will be filed separately. ( Initial Partial Filing Fee due by 3/31/2016.) Signed by District Judge Ronnie L. White on 3/1/2016. (NEB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

PATRICK L. McDOWELL,
Plaintiff,
v.

MS. KATHI ALIZADEH, et al.,
Defendants.

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No. 4:16CV143 RLW

MEMORANDUM AND ORDER

Plaintiff, a prisoner, seeks leave to proceed in forma pauperis in this civil action under 42
U.S.C. § 1983. Having reviewed plaintiffs financial information, the Court assesses a partial
initial filing fee of $7.00, which is twenty percent of his average monthly deposit. See 28 U.S.C.
§ 1915(b). Additionally, the Court finds that this case must be summarily dismissed.
Standard of Review

Under 28 U.S.C. § 1915(e), the Court is required to dismiss a complaint filed in forma
pauperis if it is frivolous, malicious, or fails to state a claim upon which relief can be granted.
To state a claim for relief under § 1983, a complaint must plead more than "legal conclusions"
and "[t]hreadbare recitals of the elements of a cause of action [that are] supported by mere
conclusory statements." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

A plaintiff must

demonstrate a plausible claim for relief, which is more than a "mere possibility of misconduct."

Id. at 679. "A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged." Id. at 678. Determining whether a complaint states a plausible claim for relief [is] a

context-specific task that requires the reviewing court to draw on its judicial experience and
common sense. Id. at 679.
The Complaint

Plaintiff brings this action against Assistant Prosecutor Kathi Alizadeh and Detective
Tom Kickham. Plaintiff was convicted of murder in the 1997 case, Missouri v. McDowell,
97CR-2000 (St. Louis County). Plaintiff alleges that Kickham altered several key pieces of
evidence, such as surveillance tapes. He claims that Alizadeh gave "tacit authorization" to
Kickham ' s actions, and he says she withheld exculpatory evidence.

He seeks monetary

damages.
Discussion

"Although the statute of limitations is an affirmative defense, a district court may
properly dismiss an in forma pauperis complaint under 28 U.S.C. § 1915[] when it is apparent
the statute of limitations has run. " My ers v. Vogal, 960 F.2d 750, 751 (8th Cir. 1992). Section
1983 claims are analogous to personal injury claims and are subject to Missouri's five-year
statute of limitations. Sulik v. Taney County, Mo., 393 F.3d 765, 766-67 (8th Cir. 2005); Mo.
Rev. Stat.§ 516.120(4). The actions in this case occurred nearly twenty years ago. Therefore,
this action is barred by the statute of limitations.
Moreover, a prisoner may not recover damages in a § 1983 suit where the judgment
would necessarily imply the invalidity of his conviction, continued imprisonment, or sentence
unless the conviction or sentence is reversed, expunged, or called into question by issuance of a
writ of habeas corpus. Heck v. Humphrey, 512 U.S . 477, 486-87 (1994); Schafer v. Moore, 46
F.3d 43 , 45 (8th Cir. 1995). In this case, the allegations would call the conviction into question.
As a result, this action is also barred by Heck.

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Finally, to the extent that plaintiff wishes to challenge the validity of his conviction, his
only remedy lies in habeas corpus.
According! y,

IT IS HEREBY ORDERED that plaintiffs motion to proceed in forma pauperis [ECF
No. 2] is GRANTED .

IT IS FURTHER ORDERED that the plaintiff must pay an initial filing fee of $7.00
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 without prejudice.
An Order of Dismissal will be filed separately .
Dated this

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day of March, 2016.

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UNITED STATES DISTRICT JUDGE

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