Dinkins v. State

Decision Date23 August 2021
Docket Number4:21-cv-00399-JAR
PartiesROBERT O. DINKINS, Plaintiff, v. STATE OF MO, et al., Defendants.
CourtU.S. District Court — Eastern District of Missouri
MEMORANDUM AND ORDER

JOHN A. ROSS, UNITED STATES DISTRICT JUDGE

This matter comes before the Court on the motion of plaintiff Robert O. Dinkins for leave to commence this civil action without prepayment of the required filing fee. (Docket No 2). Having reviewed the motion, the Court has determined that plaintiff lacks sufficient funds to pay the entire filing fee, and will assess an initial partial filing fee of $1.00. See 28 U.S.C. § 1915(b)(1). Additionally, for the reasons discussed below, the Court will dismiss plaintiff's complaint without prejudice. See 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. § 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.

Plaintiff has not submitted a prison account statement as required by 28 U.S.C. § 1915(a)(2), stating that prison officials will not provide him an “account print out.” (Docket No. 2). Nevertheless, having reviewed the information contained in the motion, the Court will require plaintiff to pay an initial partial filing fee of $1.00. See Henderson v. Norris, 129 F.3d 481, 484 (8th Cir. 1997) (explaining that when a prisoner is unable to provide the court with a certified copy of his inmate account statement the court should assess an amount “that is reasonable based on whatever information the court has about the prisoner's finances”). If plaintiff is unable to pay the initial partial filing fee, he must submit a copy of his prison account statement in support of his claim.

Legal Standard on Initial Review

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. To state a claim, a plaintiff must demonstrate a plausible claim for relief, which is more than a “mere possibility of misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “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. Determining whether a complaint states a plausible claim for relief is a context-specific task that requires the reviewing court to draw upon judicial experience and common sense. Id. at 679. The court must “accept as true the facts alleged, but not legal conclusions or threadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Barton v. Taber, 820 F.3d 958, 964 (8th Cir. 2016). See also Brown v. Green Tree Servicing LLC, 820 F.3d 371, 372-73 (8th Cir. 2016) (stating that court must accept factual allegations in complaint as true, but is not required to “accept as true any legal conclusion couched as a factual allegation”).

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). A “liberal construction” means that if the essence of an allegation is discernible, the district court should construe the plaintiff's complaint in a way that permits his or her claim to be considered within the proper legal framework. Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015). However, 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 (8thCir. 2004) (stating that federal courts are not required to “assume facts that are not alleged, just because an additional factual allegation would have formed a stronger complaint”). In addition, affording a pro se complaint the benefit of a liberal construction does not mean that procedural rules in ordinary civil litigation must be interpreted so as to excuse mistakes by those who proceed without counsel. See McNeil v. United States, 508 U.S. 106, 113 (1993).

The Complaint

Plaintiff is a self-represented litigant who is currently incarcerated at the United States Penitentiary in Atlanta, Georgia. He has filed a complaint that is titled “Totality - Human Rights Violation Action [and] Habeas Corpus.” (Docket No. 1 at 1). The complaint is handwritten and not on a Court-provided form. Though plaintiff mentions habeas corpus, [1] he purports to bring this action under the Federal Tort Claims Act (FTCA), Title II of the Americans with Disabilities Act (ADA), 28 U.S.C. §§ 241-242, negligence, and “comparative tort.” Plaintiff names the following defendants: the State of Missouri, the Federal Bureau of Prisons, “judge, ” and “attorney.”

With regard to a “Statement of Claim, ” plaintiff asserts that he has filed this complaint because his “attorney is unethical, ineffective, ” and deliberately failed to timely draft a supplemental compassionate release motion to support a motion plaintiff had previously filed.[2](Docket No. 1 at 2). He further states that the attorney did not incorporate and submit medical records to the judge, failed to adequately communicate with him, failed to ensure that “calls” from family and friends were “accepted for evidence and testimony purposes, ” and for unspecified delays. Based on this, plaintiff alleges that his attorney subjected him to cruel and unusual punishment, “excessive confinement, ” negligent medical treatment, and discrimination, in violation of the First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments.

As to the judge, plaintiff again asserts violations of the First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments, as well as negligence. (Docket No. 1 at 3). In particular, plaintiff states that he is “at risk of catching[, ] dying [and] suffering from COVID-19.” (Docket No. 1 at 2). Instead of ruling on plaintiff's compassionate release motion, however, plaintiff states that the judge “appointed [him] a[n] unethical attorney” who failed to meet appropriate standards and had “a history of fraud.” (Docket No. 1 at 2-3).

Though he does not name it as a defendant, plaintiff accuses the United States Court of Appeals for the Eighth Circuit of “deliberately overlooking [and] covering up” prior claims that he has made. Those claims include compassionate release, bias, due process, “Rehaif, ”[3] and his allegations against the Missouri Secretary of State and the St. Louis Police Department. (Docket No. 1 at 3).

With regard to the Federal Bureau of Prisons, plaintiff contends that it has failed to respond to plaintiff's compassionate release motions, and has generally failed to discuss the “reasonable accommodation of medical release, ” in violation of the ADA. (Docket No. 1 at 4). In particular, plaintiff complains that he has been refused the Johnson & Johnson vaccine and denied access to “herbal treatment per [his] religion.” Mainly, though, he appears to rest his claim on the fact that he has not been released from custody.

Based on these allegations, plaintiff asks the Court to review his prior compassionate release and Rehaif claims, appoint a new lawyer, and hold a hearing. (Docket No. 1 at 5).

Discussion

Plaintiff is a self-represented litigant who brings this civil action against the State of Missouri, the Federal Bureau of Prisons his trial judge, and his attorney. Because plaintiff is proceeding in forma pauperis, the Court has reviewed his complaint pursuant to 28 U.S.C. § 1915. Based on that review, and for the reasons discussed below, this case will be dismissed without prejudice.

A. FTCA

Plaintiff asserts that his case arises in part under the FTCA. The FTCA “waives federal sovereign immunity for injuries caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable.” Newcombe v. United States, 933 F.3d 915, 917 (8th Cir. 2019). The FTCA acts as a limited waiver of sovereign immunity, which opens the door to state-law liability claims against the federal government for harm cause by a governmental employee. Buckler v. United States, 919 F.3d 1038, 1044 (8th Cir. 2019). Pursuant to statute:

An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent act or omission of any employee of the Government while acting within the scope of his office of employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail.

28 U.S.C. § 2675(a). Complete exhaustion of administrative remedies is required before the judicial process is invoked. McNeil, 508 U.S. at 112. Exhaustion of...

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