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Price v. Lewis

United States District Court, N.D. Iowa, Western Division

November 5, 2014

JAMOCA TAIYE PRICE, Plaintiff,
v.
ZACHARY LEWIS, JEFFREY HARSTAD, Defendants.

ORDER

MARK W. BENNETT, District Judge.

The matter before the court is the order that is dated September 26, 2014. Pursuant to such order, the court granted in forma pauperis status pursuant to 28 U.S.C. § 1915(a)(1) and directed the clerk's office to file the plaintiff's complaint. At that time, the court did not conduct an initial review of the complaint or direct the clerk's office to effectuate service of the complaint. The court now finds that additional steps must be undertaken by the plaintiff with respect to the filing fee and that it is appropriate to conduct the necessary review under 28 U.S.C. § 1915(e).

I. FILING FEE

The plaintiff is required to pay the full $350.00 filing fee by making payments on an installment basis. 28 U.S.C. § 1915(b)(1); see also In re Tyler, 110 F.3d 528, 529-30 (8th Cir. 1997) ("[T]he [Prisoner Litigation Reform Act] makes prisoners responsible for their filing fees the moment the prisoner brings a civil action or files an appeal."). The full filing fee will be collected even if the court dismisses the case because it is frivolous or malicious, fails to state a claim on which relief may be granted or seeks money damages against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2).

Here, the plaintiff must pay an initial partial filing fee in the amount of 20 percent of the greater of his average monthly account balance or average monthly deposits for the six months preceding the filing of the complaint. 28 U.S.C. § 1915(b)(1). Based on his average monthly account balance, the court finds that the initial partial filing fee is $2.00. Id. The plaintiff shall submit $2.00 by no later than December 3, 2014. Id. If necessary, the plaintiff may request in a written motion an extension of time to pay the initial partial filing fee.

In addition to the initial partial filing fee, the plaintiff must "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 statute places the burden on the prisoner's institution to collect the additional monthly payments and forward them to the court. Specifically,

[a]fter payment of the initial partial filing fee, the prisoner shall be required to make monthly payments of 20 percent of the preceding month's income credited to the prisoner's account. The agency having custody of the prisoner shall forward payments from the prisoner's account to the clerk of the court each time the amount in the account exceeds $10 until the filing fees are paid.

28 U.S.C. § 1915(b)(2). Therefore, after the plaintiff pays in full the initial partial filing fee, the remaining installments shall be collected by the institution having custody of the plaintiff. Id. The clerk's office shall send a copy of this order and the notice of collection of filing fee to the appropriate official at the place where the plaintiff is an inmate.

II. STANDARD OF REVIEW

A pro se complaint must be liberally construed. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Smith v. St. Bernards Reg'l Med. Ctr., 19 F.3d 1254, 1255 (8th Cir. 1994). In addition, unless the facts alleged are clearly baseless, they must be weighed in favor of the plaintiff. Denton v. Hernandez, 504 U.S. 25, 32-33 (1992). A court, however, can dismiss at any time a complaint filed in forma pauperis if the complaint is frivolous, malicious, fails to state a claim on which relief may be granted or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2); 28 U.S.C. § 1915A(b)(1). A claim is "frivolous" if it "lacks an arguable basis in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989); accord Cokeley v. Endell, 27 F.3d 331, 332 (8th Cir. 1994). An action fails to state a claim upon which relief can be granted if it does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Accordingly, a court may review the complaint and dismiss sua sponte those claims that fail "to raise a right to relief above the speculative level....'", see Parkhurst v. Tabor, 569 F.3d 861, 865 (8th Cir. 2009) (quoting Bell Atl., 550 U.S. at 555), or that are premised on meritless legal theories or clearly lack any factual basis, see Neitzke, 490 U.S. at 325. See, e.g., Denton v. Hernandez, 504 U.S. at 27 (considering frivolousness); Myers v. Vogal, 960 F.2d 750, 751 (8th Cir. 1992) (concluding that a district court may dismiss an action if an affirmative defense exists).

III. CLAIM ASSERTED

Currently confined at the Woodbury County Jail in Sioux City, Iowa, the plaintiff, proceeding pro se, submitted a complaint (docket no. 3) to redress issues that are related to state court criminal proceedings. Jurisdiction is predicated on 28 U.S.C. § 1343. Under 28 U.S.C. § 1391(b), venue appears to be proper as the events giving rise to the instant action occurred in this district and the defendants are located in this district.

The statement of claim portion of the complaint is as follows:

On 8/21/14, I was detained by Detective Z. Lewis and Detective J. Harstad at EZ Pawn on Hamilton Dr. Upon arrival at the Sioux City Police Dep't, Detective Z. Lewis told me to say that I was committing the thefts, that I am currently charged with, for the individuals who recently attacked Steven Blackbird, who is my fiance's son, with a machete to his arm at 2104 W. 14th St. I had a verbal agreement by them in the back stairwell of the Police Dep't that, if I implicated them also, that the county attorney would drop most of my charges and that it would look good on my behalf if I confess to everything. I stated that I had been drinking and that I was intoxicated. They told me that it didn't matter. During the interview, Detective Z. Lewis brought me a roast beef sandwich from Arby's and Detective J. Harstad brought me outside to smoke a cigarette. Both ...

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