McIntosh v. USA

Filing 13

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [ECF No. 8 ] 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 f or an original proceeding. IT IS FURTHER ORDERED that this action is DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B) and Fed.R.Civ.P.12(h)(3). IT IS FURTHER ORDERED that remaining motions are DENIED AS MOOT. An Order of Dismissal will accompany this Memorandum and Order. Signed by District Judge Jean C. Hamilton on 12/1/2016. (Response to Court due by 12/30/2016) (GGB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
RODNEY O. MCINTOSH,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

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No. 4:16CV1103 DDN

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff, Rodney O. McIntosh
(registration no. 35074-044), an inmate at U.S. Penitentiary at Lewisburg, Pennsylvania, 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. See 28 U.S.C. § 1915(b)(1). Furthermore, based
upon a review of the complaint, the Court finds that the complaint should be dismissed pursuant
to 28 U.S.C. § 1915(e)(2)(B) and Federal Rule of Civil Procedure 12(h)(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 sixmonth 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 not submitted a certified prison account statement. 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 certified 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
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

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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 states that he is not bringing the instant action pursuant to 42 U.S.C. § 1983, and
he claims that this case “involves no defendant.” Rather, plaintiff seeks a “name change,” in this
Court, to the name “Ramadhan Omar Abdul Elghafar.”
Plaintiff states that his petition for name change “comes to this Court in a civil manner
without controversy of any outstanding debts or to evade any person or spirit.” Plaintiff asserts
that the name he presently carries, “Rodney McIntosh,” which was given to him as a slave name,
and he alleges that the United States, as a “corporation,” should have no “purchase or interest” in
his name change petition unless it can provide him with an “interest in his former name by
contract.”
In plaintiff’s request for relief he seeks: (1) a name change and (2) information of the
defendant, the United States’ official status, as either a corporation or a government.
Discussion
At the outset, the Court notes that plaintiff has failed to state the grounds for filing the
instant action in Federal Court. Liberally construing the complaint as being brought under 28
U.S.C. § 1332, the Court will dismiss the action, without prejudice, for lack of subject matter
jurisdiction. The amount in controversy is unspecified, and plaintiff has insufficiently alleged
diversity of citizenship. See 28 U.S.C. § 1332. Moreover, the instant action does not arise under

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the Constitution, laws, or treaties of the United States, and thus, federal question jurisdiction
pursuant to 28 U.S.C. § 1331 is inapplicable.
Additionally, this Court may only adjudicate claims with actual cases or controversies.
Unfortunately, “name change petitions” of the sort characterized in plaintiff’s complaint, do not
fall within the “case or controversy” requirement contemplated by Article III of the United States
Constitution. As such, the Court lacks jurisdiction over plaintiff’s action.
Accordingly,
IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [ECF
No. 8] 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) and Fed.R.Civ.P.12(h)(3).
IT IS FURTHER ORDERED that remaining motions are DENIED AS MOOT.
An Order of Dismissal will accompany this Memorandum and Order.
Dated this 1st day of December, 2016.

\s\ Jean C. Hamilton
JEAN C. HAMILTON
UNITED STATES DISTRICT JUDGE

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