Bailey v. Reeves et al, No. 1:2008cv00147 - Document 4 (E.D. Mo. 2008)
Court Description: OPINION, MEMORANDUM, and ORDER: IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in forma pauperis 2 is GRANTED. IT IS FURTHER ORDERED that the plaintiff shall pay an initial partial filing fee of $1.42 within thirty (30 ) days from 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) hs prison registration number; (3) the case number; and (4) that the remittance is for an original proceeding. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the complaint, because it is legally frivolous and fails to state a claim upon which relief may be granted. See 28 USC 1915(e)(2)(B). An appropriate order shall accompany this order and memorandum. Signed by Honorable Henry E. Autrey on 10/15/08. (TRC)
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI SOUTHEASTERN DIVISION DAVID EUGENE BAILEY, Plaintiff, v. CLINTON REEVES, et al., Defendants. ) ) ) ) ) ) ) ) ) No. 1:08CV147 LMB OPINION, MEMORANDUM AND ORDER This matter is before the Court upon the application of David Eugene Bailey (registration #363348) for leave to commence this action without payment of the required filing fee. 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 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 six-month period. See 28 U.S.C. § 1915(b)(1). 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. See 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 submitted an affidavit and a certified copy of his prison account statement for the six-month period immediately preceding the submission of his complaint. See 28 U.S.C. § 1915(a)(1),(2). A review of plaintiff's account statement indicates an average monthly deposit of $7.08, and an average monthly account balance of $00.52. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee of $1.42, which is 20 percent of plaintiff's average monthly deposit. 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 at any time 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 either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). An action fails to state a claim upon which relief may be granted if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Jackson Sawmill Co. v. United States, 580 F.2d 302, 306 (8th Cir. 1978). 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 plaintiff, unless the facts alleged are clearly baseless. Denton v. Hernandez, 112 S. Ct. 1728, 1733 (1992); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The complaint Plaintiff, an inmate at the Western Missouri Correctional Center seeks monetary relief in this 42 U.S.C. § 1983 action against defendants Sheriff Clinton Reeves and Judge Sandra Osborn. Plaintiff alleges that defendants coerced him into pleading guilty by withholding medical attention and telling plaintiff that "if [he] wanted help, [he] was to plead guilty and get help in prison." In addition, he claims that he was "tortured mentally and physically (no recreation, no windows, no TV, nothing) and forced into pleading guilty." Plaintiff's claims challenge the fact or duration of his confinement given that a favorable decision would necessarily imply the invalidity of his continued confinement. However, to recover damages for an allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions that would render a conviction or 3 sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed, expunged, declared invalid by a state tribunal, or called into question by a federal court's issuance of a writ of habeas corpus. Heck v. Humphrey, 512 U.S. 477 (1994). In the instant case, plaintiff does not claim that his conviction or sentence has been reversed, expunged, invalidated, or called into question. Thus, plaintiff's § 1983 claims are foreclosed until he has demonstrated such invalidity through an appropriate avenue. In accordance with the foregoing, 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 plaintiff shall pay an initial partial filing fee of $1.42 within thirty (30) days from 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 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). An appropriate order shall accompany this order and memorandum. 4 Dated this 15th day of October, 2008 HENRY EDWARD AUTREY UNITED STATES DISTRICT JUDGE 5
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