Bracken v. State of Missouri et al

Filing 5

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that this action is DISMISSED without prejudice. See Fed.R.Civ.P.41(b) and Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). IT IS FURTHER ORDERED that all pending motions are DENIED AS MOOT. IT IS HEREBY CERTIFIED that an appeal would not be taken in good faith. A separate Order of Dismissal shall accompany this Memorandum and Order. Signed by District Judge Jean C. Hamilton on 2/28/17. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
GARVESTER BRACKEN,

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Plaintiff,
v.
STATE OF MISSOURI, et al.,
Defendants.

No. 4:16-CV-1802 NCC

MEMORANDUM AND ORDER
Before the Court is plaintiff’s motion to supplement his complaint. Plaintiff’s motion
will be denied and this action will be dismissed pursuant to Fed.R.Civ.P.41.
Background
On November 22, 2016, the Court ordered plaintiff to amend his complaint on a courtform, pursuant to Local Rule 2.06(A), and additionally ordered plaintiff to file a motion to
proceed in forma pauperis and file a copy of his prison account statement or pay the full filing
fee in this action. See 28 U.S.C. § 1915. The Court gave plaintiff specific instructions relative to
amending his complaint on the court-form.
Discussion
Instead of amending his complaint within the time specified, plaintiff filed a motion to
supplement his complaint.

The Court does not allow amendments by interlineation or

supplementation. See Popoalii v. Correctional Medical Services, 512 F.3d 488, 497 (8th
Cir.2008).
Plaintiff also failed to file a separate motion to proceed in forma pauperis, although he
did file a copy of his prison account statement. Unfortunately, the Court cannot proceed without

the benefit of an action motion or an actual fully paid filing fee, as noted in the Court’s
November 22, 2016 Memorandum and Order.
Plaintiff has failed to comply with the Court’s November 22, 2016 Memorandum and
Order. As a result this action is subject to dismissal pursuant to Fed.R.Civ.P.41(b).
Additionally, plaintiff’s complaint is also subject to dismissal because the claims in
plaintiff’s complaint are Heck-barred. 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. See Heck v. Humphrey, 512 U.S. 477, 486-87
(1994); Schafer v. Moore, 46 F.3d 43, 45 (8th Cir. 1995); Edwards v. Balisok, 520 U.S. 641, 648
(1997) (applying rule in § 1983 suit seeking declaratory relief).
In plaintiff’s original complaint, plaintiff, who is currently incarcerated in South Central
Correctional Center (“SCCC”), asserts that three state prosecutors violated his rights by initiating
and commencing a felony prosecution against him in violation of the Fourth Amendment. See
State v. Bracken, Case No. 0822-CR06710-01 (22nd Judicial Circuit, St. Louis City). Plaintiff’s
conviction for attempted deviate sexual assault, forcible rape and second degree domestic assault
has not been overturned on appeal or by habeas corpus. Thus, plaintiff’s complaint against
defendants is Heck-barred.
Because plaintiff has failed to comply with the Court’s Order dated November 22, 2016
and failed to file an amended complaint on a court-form, in addition to a motion to proceed in
forma pauperis, this action is subject to dismissal pursuant to Fed.R.Civ.P.41(b). Additionally,
plaintiff’s complaint is also subject to dismissal pursuant to Heck v. Humphrey, 512 U.S. 477,
486-87 (1994).
Accordingly,

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IT IS HEREBY ORDERED that this action is DISMISSED without prejudice. See
Fed.R.Civ.P.41(b) and Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).
IT IS FURTHER ORDERED that all pending motions are DENIED AS MOOT.
IT IS HEREBY CERTIFIED that an appeal would not be taken in good faith.
A separate Order of Dismissal shall accompany this Memorandum and Order.
Dated this 28th

day of February, 2017.

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

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