Flieger v. Washington County, MO Probation and Parole Office et al, No. 4:2007cv00405 - Document 4 (E.D. Mo. 2007)

Court Description: OPINION, MEMORANDUM AND ORDER IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [Doc. #2]is GRANTED.IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $0.25 withinthirty (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 registrationnumber; (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 issueupon the complaint because the complaint is legally frivolous or fails to state a claim upon which reliefcan be granted, or both.An appropriate order of dismissal shall accompany this Memorandum and Order. Signed by Judge Henry E. Autrey on March 22, 2007. (MCB)
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Flieger v. Washington County, MO Probation and Parole Office et al Case 4:07-cv-00405-TCM Document 4 Doc. 4 Filed 03/22/2007 Page 1 of 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION WILLIAM FLIEGER, Plaintiff, v. WASHINGTON COUNTY PROBATION AND PAROLE OFFICE, AND JOHN SMITH, Defendants. ) ) ) ) ) ) ) ) ) ) ) No. 4:07CV405 TCM OPINION, MEMORANDUM AND ORDER This matter is before the Court upon the application of William Flieger (registration no. 513581), an inmate at Farmington Correctional Center, for leave to commence this action without payment of the required filing fee [Doc. #2]. For the reasons stated below, the Court finds that the applicant does not have sufficient funds to pay the entire filing fee and will assess an initial partial filing fee of $0.25. 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). 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 six-month 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. § Dockets.Justia.com Case 4:07-cv-00405-TCM Document 4 Filed 03/22/2007 Page 2 of 4 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. Applicant 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. A review of applicant s account indicates an average monthly deposit of $1.25, and an average monthly balance of $0.00. Applicant has insufficient funds to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee of $0.25, which is 20 percent of applicant 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 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 fails to state a claim upon which relief can 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). 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, 504 U.S. 25, 32-33 (1992); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The Complaint -2- Case 4:07-cv-00405-TCM Document 4 Filed 03/22/2007 Page 3 of 4 Plaintiff brings this action under 42 U.S.C. § 1983 for alleged violations of his constitutional rights. Named as defendants are Washington County, Missouri, Probation and Parole Office and John Smith, Probation Officer. Plaintiff alleges that John Smith took plaintiff s horse, Casino, from him on the trumped up charge that Casino was not receiving adequate care. Plaintiff claims that Smith actually took Casino home for his own use. Plaintiff asserts that his veterinarian believes Smith unlawfully took the horse because, according to the veterinarian, Casino was in good health. Plaintiff seeks recovery of Casino and compensatory damages. Discussion There is no cause of action under 42 U.S.C. § 1983 for unconstitutional taking of personal property where the state provides an adequate post-deprivation remedy. E.g., Clark v. Kansas City Missouri School Dist., 375 F.3d 698, 703 (8th Cir. 2004). Missouri provides the post-deprivation remedy of replevin for recovery of personal property. Id.; Mo. R. Civ. P. 99.01 - 99.15. As a result, plaintiff s complaint shall be dismissed for failure to state a claim upon which relief can be granted. 28 U.S.C. § 1915(E)(2)(B). Accordingly, IT IS HEREBY ORDERED that plaintiff s motion to proceed in forma pauperis [Doc. #2] is GRANTED. IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $0.25 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. -3- Case 4:07-cv-00405-TCM Document 4 Filed 03/22/2007 Page 4 of 4 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 or fails to state a claim upon which relief can be granted, or both. An appropriate order of dismissal shall accompany this Memorandum and Order. Dated this 22nd day of March, 2007. UNITED STATES DISTRICT JUDGE -4-