Phillips v. Romeo et al

Filing 6

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that plaintiffs motion to proceed in forma pauperis (Docket No. 2 ) is GRANTED. IT IS FURTHER ORDERED that plaintiff must pay an initial filing fee of $1.00 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 remi ttance is for an original proceeding. IT IS FURTHER ORDERED that this case is DISMISSED without prejudice. 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. re: MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff Clint Phillips, III. Signed by District Judge John A. Ross on 8/4/17. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CLINT PHILLIPS, III,

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Plaintiff,
v.
MELISSA ROMEO, et al.,
Defendants.

No. 4:17-cv-1636-NAB

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Clint Phillips, III, an inmate at the St.
Louis City Medium Security Institution, for leave to commence this action without prepayment
of the filing fee. Having reviewed the financial information submitted in support, the Court has
determined to grant the motion. In addition, the Court will dismiss this case without prejudice.

28 u.s.c. § 1915(b)(l)
Pursuant to 28 U.S.C. § 1915(b)(l), a prisoner bringing a civil action informa 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 support of the instant motion, plaintiff submitted an affidavit and an inmate account
statement, detailing his account for April and May of 2017. Based upon this information, the
Court will assess an initial partial filing fee of $1. 00, an amount that is reasonable based upon the
information the Court has about plaintiff's finances. 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 for the six months immediately preceding the filing of the complaint, the
Court should assess an amount "that is reasonable, based on whatever information the court has
about the prisoner's finances.").
Legal Standard on Initial Review

Under 28 U.S.C. § 1915(e)(2), the Court is required to dismiss a complaint filed informa

pauperis if it is frivolous, malicious, fails to state a claim upon which relief can be granted, or
seeks monetary relief from a defendant who is immune from such relief. An action is frivolous if
it "lacks an arguable basis in either law or fact." Neitzke v. Williams, 490 U.S. 319, 328 (1989).
A complaint is factually frivolous ifthe facts alleged are fanciful, delusional, or based in fantasy.

Denton v. Hernandez, 504 U.S. 25, 31 (1992). A complaint fails to state a claim if it fails to
plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (2007).
The Complaint

Plaintiff is a :frequent filer of frivolous lawsuits. He filed the instant complaint pursuant
to 42 U.S.C. § 1983. Named as defendants are Melissa Romeo, a social worker, and Selena
Roberson, a Veteran's Administration employee. Also named are indeterminate numbers of
"Unknown Homeland Security Officers et al." and "Unknown United States Marshals et al."
(Docket No. 1).

Plaintiff sues all defendants in their official and individual capacities for

monetary damages.
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The complaint is a compilation of disjointed statements and long, run-on sentences. For
example, plaintiff alleges that he showed Romeo and Roberson a picture of a house he wished to
buy, he told them about his disability claims for akathisia and erectile dysfunction that he
believed would increase his income, and he told them he intended to visit the federal courthouse.
He told them he would have to "march through downtown through a bunch of hooligans" and
that he was "being followed by infidels/terrorists/tangos." (Id at 6). He alleges that unidentified
federal officers engaged in a conspiracy with Romeo and Roberson and many others to detain

him on outstanding warrants and "maliciously report" in their database that he was not taking his
medication. (Id).
Discussion

In general, fictitious parties may not be named as defendants in a civil action. Here, the

fictitious defendants are both unidentified and indeterminate in number. This is not permissible.

See Estate of Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir. 1995). In addition, § 1983
provides no right of action against federal agents. Finally, plaintiffs allegations throughout the
complaint are delusional, e.g., he is being followed by "infidels/terrorists/tangos" and is the
target of a vast conspiracy. As a result, the allegations are factually frivolous pursuant to

Denton, 504 U.S. 25.
For these reasons, the Court finds this action is both legally and factually frivolous under
28 U.S.C. § 1915(e). This action will therefore be dismissed.
Accordingly,
IT IS HEREBY ORDERED that plaintiffs motion to proceed in forma pauperis

(Docket No. 2) is GRANTED.

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IT IS FURTHER ORDERED that plaintiff must pay an initial'filing fee of$1.00 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. 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 4th day of August, 2017.

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