George v. Eastern Reception & Diagnostic Correctional Center et al

Filing 6

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that plaintiff must pay an initial filing fee of $40.00 within twenty-one (21) days of the date of this Order. Plaintiff is instructed to make his remittance payable to Clerk, Uni ted States District Court, and to include upon it: (1) his name; (2) his prison registration number; (3) this case number; and (4) the statement that the remittance is for an original proceeding. IT IS FURTHER ORDERED that this case is DISMISSED wi thout prejudice because the complaint is frivolous or fails to state a claim upon which relief can be granted or both. A separate order of dismissal will be entered herewith. IT IS HEREBY CERTIFIED that an appeal from this dismissal would not be taken in good faith. Signed by District Judge Catherine D. Perry on 3/28/2017. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
BRIAN K. GEORGE,
Plaintiff,
v.
EASTERN RECEPTION, DIAGNOSTIC
and CORRECTIONAL CENTER, et al.,
Defendants.

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No. 4:17-cv-735-CDP

MEMORANDUM AND ORDER
This matter is before the Court upon the civil complaint filed by pro se plaintiff Brian K.
George, an inmate at the Dunklin County Jail. Plaintiff initially commenced this action in the
United States District Court for the Western District of Missouri, which provisionally granted
him leave to proceed in forma pauperis and then transferred the matter to this federal judicial
district. Having reviewed the motion to proceed in forma pauperis that plaintiff submitted when
he initiated this case, this Court determines that plaintiff lacks sufficient funds to pay the entire
filing fee. The Court will therefore permit plaintiff to proceed herein in forma pauperis, and will
assess an initial partial filing fee of $40.00, which is twenty percent of plaintiff’s stated average
monthly account balance. In addition, for the reasons discussed below, the Court will dismiss
the complaint.
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
$10.00, until the filing fee is fully paid. Id.
In the motion that plaintiff filed when he initiated this case, he stated that the average
monthly balance of his prison account is $200.00. The Court will therefore assess an initial
partial filing fee of $40.00, which is twenty percent of plaintiff’s stated average monthly balance.
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.”).
Legal Standard
Under 28 U.S.C. § 1915(e)(2), 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.
An action is frivolous if it “lacks an arguable basis in either law or fact.” Neitzke v. Williams,
490 U.S. 319, 328 (1989).
To state a claim for relief, 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.”
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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.
When reviewing a pro se complaint under § 1915(e)(2), the Court must give it the
benefit of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520 (1972).

However, this

does not mean that pro se complaints may be merely conclusory. Even pro se complaints are
required to allege facts which, if true, state a claim for relief as a matter of law. Martin v.
Aubuchon, 623 F.2d 1282, 1286 (8th Cir. 1980); see also Stone v. Harry, 364 F.3d 912, 914-15
(8th Cir. 2004) (federal courts are not required to “assume facts that are not alleged, just because
an additional factual allegation would have formed a stronger complaint”).
The Complaint
In the complaint, plaintiff names the Eastern Reception, Diagnostic & Correctional
Center (“ERDCC”) as a defendant, and alleges that filing fees were not sent from his inmate
account in June and July of 2016. He does not allege that he suffered an actual injury to pending
or contemplated legal claims, or allege any other resulting harm.
Plaintiff also names as defendants the Clerks of Court for the “Farmington Missouri
Federal Courthouse,” the “St. Louis Federal Courthouse,” and the “Dunklin County Circuit
Court.” He alleges that the Clerk of the Farmington Missouri Federal Courthouse refused to file
a “motion of habeas corpus after postage of certified mail was paid through Bonne Terre’s
ERDCC property room which should have taken care of initial filing fee with notarization from
caseworker.” (Docket No. 1 at 5). Plaintiff alleges that the Clerk of the St. Louis Federal
Courthouse “sent complaint to Southeast Division Cape Girardeau where known individual
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possible defendants; federal agents, of allegations listed in Case # 1:17-CV-15-CAS.” (Id.)
Plaintiff alleges that the Clerk of the Dunklin County Circuit Court failed “to acknowledge
motions filed with other 3 defendants failing to meet requests” in 2012 and 2016. (Id.) Finally,
plaintiff alleges that “all have failed to meet requirements of job duties/discretion/
certification/license may be expired when asked by certified/notarized request for evidence to be
entered under Supreme Court rule 25.05, disclosure of evidence in the [illegible] for initial
motion of habeas corpus.” (Id.) He does not allege that he suffered an actual injury to pending
or contemplated legal claims, or allege any other resulting harm.
Plaintiff seeks monetary damages of “millions,” and states that he wants “immunity
declared,” to be free from retaliation for using the court system, his motions acknowledged in
Dunklin County Court, a fast and speedy trial, correction of his driving record, and his “cases
faxed to the United States Department of Justice.” (Docket No. 1 at 6).
Discussion
Plaintiff’s claim against ERDCC will be dismissed as legally frivolous. A suit against
ERDCC is, in effect, a suit against the State of Missouri, which is absolutely immune from
liability under § 1983. See Will v. Michigan Dept. of State Police, 491 U.S. 58, 63 (1989).
Even if plaintiff had named a proper party defendant, his claim would fail. His allegation
that filing fees were not forwarded is essentially a claim of denial of access to the courts, which
requires him to allege that he suffered an actual injury to pending or contemplated legal claims.
Myers v. Hundley, 101 F.3d 542, 544 (8th Cir. 1996).

The complaint contains no such

allegations, and in fact fails to allege any resulting harm at all. Finally, while plaintiff cites a
federal case in which a warden was held in contempt for disobeying a court order directing him
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to forward filing fees, plaintiff does not allege the existence of any judicial order directing the
warden of ERDCC, or any other individual, to take any action.
Also legally frivolous are plaintiff’s claims against the remaining three defendants, all
Clerks of Court. Plaintiff alleges that each Clerk of Court defendant violated his rights when
performing some task associated with the judicial process. The Eighth Circuit has recognized
that clerks of court are absolutely immune from suit for damages for civil rights violations when
performing tasks that are an “integral part of the judicial process,” unless they acted in the “clear
absence of all jurisdiction.” Boyer v. County of Washington, 971 F.2d 100, 101 (8th Cir. 1992);
see also Maness v. District of Logan County–Northern Div., 495 F.3d 943 (8th Cir. 2007) (clerks
absolutely immune for acts that may be seen as discretionary or for acts taken at the direction of
a judge or according to court rule); Smith v. Erickson, 884 F.2d 1108, 1111 (8th Cir. 1989) (a
federal court clerk, who allegedly impeded an inmate’s access to the courts by intentionally
delaying the filing of his complaint and lying to him about its whereabouts, was entitled to
judicial immunity because “the filing of complaints and other documents is an integral part of the
judicial process”). In addition, as above, even if plaintiff had named a proper party-defendant,
he could not state a viable access-to-courts claim because he fails to allege he suffered an actual
injury to pending or contemplated legal claims. See Myers, 101 F.3d at 544.
The complaint is also subject to dismissal because none of the allegations therein allow
this Court to draw the reasonable inference that any defendant is liable for any misconduct. See
Iqbal, 556 U.S. at 678. At best, the complaint contains only legal conclusions and generalized
statements. Even pro se complaints are required to allege facts which, if true, state a claim for
relief as a matter of law, Martin, 623 F.2d at 1286, and this Court will not assume facts that were
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not alleged. Stone, 364 F.3d at 914-15. The Court therefore concludes that plaintiff’s claims for
damages against all four defendants are subject to dismissal on the grounds that they are legally
frivolous, they fail to state a claim upon which relief can be granted, or both. 28 U.S.C. §
1915(e)(2)(B)(i)-(ii). The other forms of relief plaintiff seeks are either unavailable in this §
1983 action, or are incomprehensible.
Accordingly,
IT IS HEREBY ORDERED that plaintiff must pay an initial filing fee of $40.00 within
twenty-one (21) 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) this case number; and (4) the statement that the remittance is for
an original proceeding.
IT IS FURTHER ORDERED that this case is DISMISSED without prejudice because
the complaint is frivolous or fails to state a claim upon which relief can be granted or both. A
separate order of dismissal will be entered herewith.
IT IS HEREBY CERTIFIED that an appeal from this dismissal would not be taken in
good faith.
Dated this 28th day of March, 2017.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

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