Beverly v. State of Missouri

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 the Clerk shall not issue process or cause process to issue upon the complaint, because t he 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 plaintiffs motion for appointment of counsel [Doc. 4] is denied as moot. An Order of Dismissal will be filed separately. Signed by District Judge Carol E. Jackson on 2/8/2016. (KMS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
HERBERT C. BEVERLY,
Plaintiff,
v.
STATE OF MISSOURI,
Defendant.

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No. 4:16-CV-154-CEJ

MEMORANDUM AND ORDER
This matter is before the Court on the motion of Herbert C. Beverly for leave
to commence this action without payment of the required filing fee.

After

reviewing plaintiff’s financial information, the Court will grant the motion. In
addition, the Court will dismiss this case pursuant to 28 U.S.C. ' 1915.
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
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. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950-51
(2009).

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. Haines v. Kerner, 404 U.S.
519, 520 (1972). The Court must also weigh all factual allegations in favor of the
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plaintiff, unless the facts alleged are clearly baseless. Denton v. Hernandez, 504
U.S. 25, 32-33 (1992).
The Complaint
Plaintiff brings this 42 U.S.C. ' 1983 action against the State of Missouri.
Plaintiff alleges that defendant “illegally took child support money out of [his]
paycheck from July 2002 to present.” Plaintiff complains that “[t]he court order
does not have a court document and for a court order to be legal it must have a
court document.” He also summarily claims that his visitation rights were taken
away. Plaintiff seeks $6 million in monetary damages.
Discussion
Having carefully reviewed the complaint, the Court concludes that this
action is legally frivolous. The State of Missouri is not a Aperson@ for purposes of
a ' 1983 action and is absolutely immune from liability under ' 1983. See Will v.
Michigan Dept. of State Police, 491 U.S. 58, 63 (1989). Moreover, pursuant to
the "domestic relations exception," federal courts are divested of jurisdiction over
any action in which the subject is a divorce, allowance of alimony, or child
custody. See Kahn v. Kahn, 21 F.3d 859, 861 (8th Cir. 1994).
Accordingly,

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IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in
forma pauperis [Doc. 2] is granted.
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 plaintiff’s motion for appointment of
counsel [Doc. 4] is denied as moot.
An Order of Dismissal will be filed separately.
Dated this 8th day of February, 2016.

_________________________________
UNITED STATES DISTRICT JUDGE

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