# Engel v. CO1

> District Court, E.D. Missouri · April 13, 2021

URL: https://www.frixlaw.com/law-library/cases/10234905

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** April 13, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10234905

## How later opinions describe it (automated extraction)

- stating that “in the context of federal sovereign immunity...it is well established that waivers are not implied”
- 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’’
- stating that “[a]s an initial matter, a person claiming that a governmental policy or action violates his right to exercise his religion freely must establish that the action substantially burdens his sincerely held religious belief’
- stating that a “plaintiff who sues public employees in their official, rather than individual, capacities sues only the public employer”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JOSEPH MICHAEL DEVON ENGEL, )
Plaintiff,
v. No. 4:20-cv-01915-RLW
COl,etal., -
Defendants.
MEMORANDUM AND ORDER
This matter comes before the Court on the motion of plaintiff Joseph Michael Devon Engel
for leave to commence this civil action without prepayment of the required filing fee.' Based on
the financial information provided by plaintiff, the motion will be granted, and the Court 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 plaintiffs complaint without prejudice.
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

' Plaintiff has not submitted a separate motion for leave to proceed in forma pauperis, nor has he paid the filing fee.
However, in the body of his complaint, plaintiff states: “Application to proceed in District Court without prepaying
fees or cost[s].” (Docket No. | at 1). The Court has construed this as a motion for leave to commence this civil action
without prepayment of the required filing fee.

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. Jd.
Plaintiff has not submitted a prison account statement as required by 28 U.S.C. §
1915(a)(2), claiming that he is unable to obtain a copy. (Docket No. 1 at 1). Nevertheless, having
reviewed the information provided by plaintiff, the Court will require him to pay an initial partial
filing fee of $1.00. See Henderson v. Norris, 129 F.3d 481, 484 (8" Cir. 1997) (explaining that
when a prisoner is unable to provide the Court with a copy of his prison 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 under 42 U.S.C. § 1983, 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.” Jd. 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. Jd. 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 (8 Cir. 2016). See also Brown vy. Green Tree Servicing LLC, 820 F.3d 371, 372-73

,

(8" 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
plaintiffs complaint in a way that permits his or her claim to be considered within the proper legal
framework. Solomon y. Petray, 795 F.3d 777, 787 (8" 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 (8" Cir. 1980). See also Stone v. Harry, 364 F.3d 912, 914-15 (8"
Cir. 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 Missouri Eastern
Correctional Center in Pacific, Missouri. At the time relevant to this complaint, however, he was
an inmate at the Eastern Reception, Diagnostic and Correctional Center (ERDCC) in Bonne Terre.”
Since September 9, 2020, he has filed over 130 cases in the United States District Court for the
Eastern District of Missouri.

2 In his handwritten complaint, plaintiff appears to indicate that he is a “civilly committed detainee.” (Docket No. 1 at
1). However, plaintiff has also provided his prison registration number, and has acknowledged that he is being held at
a state correctional facility. Moreover, review of the Missouri Department of Correction’s online records show that
plaintiff is a convicted state prisoner serving a ten-year sentence for, among other things, second-degree burglary.
Therefore, the Court has determined that plaintiff is actually a convicted and sentenced state prisoner, and not a civilly
committed detainee, for purposes of 28 U.S.C. § 1915 review.

Plaintiff brings the instant action pursuant to 42 U.S.C. § 1983, naming thirty-three separate
defendants, identified only by job title or institution: (1) CO1; (2) CO2; (3) Sergeant; (4)
Lieutenant; (5) Captains; (6) Corporals; (7) Majors; (8) Corrections Classification Assistant; (9)
Functional Unit Manager; (10) Caseworker #1; (11) Caseworker #2; (12) Institutional Parole
Officer, ERDCC; (13) Institutional Parole Officer Supervisor; (14) Probation and Parole; (15)
Probation and Parole Director; (16) Probation and Parole Assistant Director; (17) Religious
Services, ERDCC; (18) Chaplain; (19) Religious Services Director; (20) Religious Services
Assistant Director; (21) Assistant Superintendent; (22) Superintendent; (23) Missouri Department
of Corrections; (24) ERDCC; (25) Assistant Warden; (26) Warden; (27) Assistant Attorney
General; (28) Attorney General; (29) Lieutenant Governor; (30) Governor; (31) Senator MO #1;
(32) Senator MO #2; and (33) House Rep MO. (Docket No. 1 at 2). Defendants are sued in both
their official and individual capacities. (Docket No. 1 at 1).
With regard to his claim, plaintiff states that he is a member of the
“Astru/Odinism/Catholicism/[Paganism]” religion, and that since August 13, 2020, he has been
asking about his religious materials and religious diet. (Docket No. 1 at 2). However, he has
received no response except for “‘a flat out no.” Because of this, plaintiff believes that his religious
beliefs do not matter. Finally, he states that he is a sovereign citizen.
As a result of the unanswered requests regarding his religious materials and diet, plaintiff
asserts that his First Amendment right to freedom of religion has been violated. (Docket No. 1 at
1). Consequently, he is seeking hundreds of trillions of dollars in damages, as well as shares of
stock in various corporations and commodities. (Docket No. 1 at 2).

Discussion
Plaintiff is a self-represented litigant who brings this action pursuant to 42 U.S.C. § 1983,
accusing thirty-three separate defendants of violating his First Amendment right to religious
freedom. Because plaintiff is proceeding in forma pauperis, the Court reviewed his complaint
pursuant to 28 U.S.C. § 1915. Based on that review, and for the reasons discussed below, the Court
will dismiss this action without prejudice. See 28 U.S.C. § 1915(e)(2)(B).
A. ERDCC and the Missouri Department of Corrections
Plaintiff has named both the Missouri Department of Corrections and the ERDCC as
defendants. The Missouri Department of Corrections is a department of the State of Missouri,
while the ERDCC is a state correctional facility. Thus, the claims against these defendants are

_ treated the same as claims against the State of Missouri itself. The claims fail for two reasons.
First, the State of Missouri is not a “person” for purposes of 42 U.S.C. § 1983. Second, the State
of Missouri is protected by the doctrine of sovereign immunity.
i. State is Not a 42 U.S.C. § 1983 “Person”
“Section 1983 provides for an action against a ‘person’ for a violation, under color of law,
of another’s civil rights.” McLean v. Gordon, 548 F.3d 613, 618 (8" Cir. 2008). See also Deretich
v. Office of Admin. Hearings, 798 F.2d 1147, 1154 (8" Cir. 1986) (stating that “[§] 1983 provides
a cause of action against persons only”). However, “neither a State nor its officials acting in their
official capacity are ‘persons’ under § 1983.” Will v. Michigan Dep’t of State Police, 491 U.S. 58,
71 (1989). See also Calzone v. Hawley, 866 F.3d 866, 872 (8" Cir. 2017) (asserting that a “State
is not a person under § 1983”); and Kruger v. Nebraska, 820 F.3d 295, 301 (8 Cir. 2016)
(explaining that “a state is not a person for.purposes of a claim for money damages under § 1983”).

.

Here, as noted above, plaintiff has sued both the Missouri Department of Corrections and
the ERDCC. These claims are treated as being made against the State of Missouri. However, a
state is not a “person” for purposes of a 42 U.S.C. § 1983 claim for money damages, which is what
plaintiff is seeking. Because plaintiff is missing an essential element of a § 1983 action, the claims
against the Missouri Department of Corrections and the ERDCC must be dismissed.
ii. Sovereign Immunity
“Sovereign immunity is the privilege of the sovereign not to be sued without its consent.”
Va. Office for Prot. & Advocacy v. Stewart, 563 U.S: 247, 253 (2011). The Eleventh Amendment
been held to confer sovereign immunity on an un-consenting state from lawsuits brought in
federal court by a state’s own citizens or the citizens of another state. Edelman v. Jordan, 415 U.S.
651, 662-63 (1974). See also Webb v. City of Maplewood, 889 F.3d 483, 485 (8" Cir. 2018) (“The
Eleventh Amendment protects States and their arms and instrumentalities from suit in federal
court”); Dover Elevator Co. v. Ark. State Univ., 64 F.3d 442, 446 (8" Cir. 1995) (“The Eleventh
Amendment bars private parties from suing a state in federal court”); and Egerdahl v. Hibbing
Cmty. Coll., 72 F.3d 615, 618-19 (8" Cir. 1995) (“Generally, in the absence of consent a suit in
which the State or one of its agencies or departments is named as the defendant is proscribed by
the Eleventh Amendment”). The Eleventh Amendment bars suit against a state or its agencies for
any kind of relief, not merely monetary damages. Monroe v. Arkansas State Univ., 495 F.3d 591,
594 (8" Cir. 2007) (explaining that district court erred in allowing plaintiff to proceed against state
university for injunctive relief, and remanding matter to district court for dismissal).
There are two “well-established exceptions” to the sovereign immunity provided by the
Eleventh Amendment. Barnes v. State of Missouri, 960 F.2d 63, 64 (8 Cir. 1992). “The first
exception to Eleventh Amendment immunity is where Congress has statutorily abrogated such

immunity by clear and unmistakable language.” Id. The second exception is when a state waives
its immunity to suit in federal court. Jd. at 65. A state will be found to have waived its immunity
“only where stated by the most express language or by such overwhelming implications from the
text as will leave no room for any other reasonable construction.” Welch v. Tex. Dep’t of Highways
& Pub. Transp., 483 U.S. 468, 473 (1987). Neither exception is applicable in this case.
The first exception does not apply, because the Supreme Court has determined that § 1983
does not revoke a state’s Eleventh Amendment immunity from suit in federal court. See Will, 491
U.S. at 66 (“We cannot conclude that § 1983 was intended to disregard the well-established
immunity of a State from being sued without its consent”); and Quern v. Jordan, 440 U.S. 332,
341 (1979) (“[W]e simply are unwilling to believe...that Congress intended by the general
language of § 1983 to override the traditional sovereign immunity of the States”). The second
exception is also inapplicable, because the State of Missouri has not waived its sovereign immunity
in this type of case. See Mo. Rev. Stat. 537.600 (explaining that sovereign immunity is in effect,
and providing exceptions).
In this case, plaintiff has named the Missouri Department of Corrections and the ERDCC
as defendants. As noted above, however, the Eleventh Amendment bars suit against a state or its
agencies for both monetary and injunctive relief. Furthermore, no exceptions to sovereign
immunity are present in this case. Therefore, for this reason as well, plaintiff's claims against the
Missouri Department of Corrections and the ERDCC must be dismissed.
B. Religious Services, ERDCC
Plaintiff has sued a defendant identified as “Religious Services, ERDCC,” which seems to
be a department or unit within the prison. As explained above, plaintiffs claim against the ERDCC
must be dismissed because the ERDCC is not a 42 U.S.C. § 1983 “person,” and because the claim

is barred by sovereign immunity pursuant to the Eleventh Amendment. Likewise, plaintiff’s claim
against Religious Services, ERDCC must also be dismissed.
C. Missouri Board of Probation and Parole
Plaintiff appears to be suing the Missouri Board of Probation and Parole, which he refers
to as “P&P.” He has not, however, presented any factual allegations against the Board.
Furthermore, even if he had, the members of the Board “are absolutely immune from suit when
considering and deciding parole questions.” See Figg v. Russell, 433 F.3d 593, 598 (8" Cir. 2006).
Therefore, this claim must be dismissed.
D. State of Missouri Employees
Plaintiff has named a total of twenty-six individuals who are employed by the State of
Missouri. This number includes twenty persons who appear to work at the ERDCC; the Director
and Assistant Director of Probation and Parole; and the Missouri Governor, Lieutenant Governor,
Attorney General, and Assistant Attorney General. These defendants are sued in both their official
and individual capacities.
i. Official Capacity Claims
In an official capacity claim against an individual, the claim is actually “against the
governmental entity itself.” See White v. Jackson, 865 F.3d 1064, 1075 (8 Cir. 2017). Thus, a
“suit against a public employee in his or her official capacity is merely a suit against the public
employer.” Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8" Cir. 1999). See also
Brewington v. Keener, 902 F.3d 796, 800 (8 Cir. 2018) (explaining that official capacity suit
against sheriff and his deputy “must be treated as a suit against the County”); Kelly v. City of
Omaha, Neb., 813 F.3d 1070, 1075 (8" Cir. 2016) (stating that a “plaintiff who sues public
employees in their official, rather than individual, capacities sues only the public employer”); and

Elder-Keep v. Aksamit, 460 F.3d 979, 986 (8" Cir. 2006) (stating that a “suit against a public
official in his official capacity is actually a suit against the entity for which the official is an agent”).
As such, the official capacity claims against the State of Missouri employees are treated as claims
against the State of Missouri itself, which employs them.
The official capacity claims against the State of Missouri employees fail for two reasons.
First, as noted above, plaintiff cannot bring a claim for damages against the State of Missouri under
42 U.S.C. § 1983, because the state is not a § 1983 “person.” See Will, 491 U.S. at 71 (asserting
that “neither a State nor its officials acting in their official capacity are ‘persons’ under § 1983”).
Furthermore, “[a] claim for damages against a state employee in his official capacity is barred
under the Eleventh Amendment.” See Andrus ex rel. Andrus v. Arkansas, 197 F.3d 953, 955 (8"
Cir. 1999). Since plaintiff is seeking damages, rather than prospective injunctive relief, sovereign
immunity bars his claims. For these reasons, plaintiffs official capacity claims against the State
of Missouri employees must be dismissed.
ii. Individual Capacity Claims
Liability in a 42 U.S.C. § 1983 case is personal. Frederick v. Motsinger, 873 F.3d 641, 646
(8 Cir. 2017). In other words, “[g]overnment officials are personally liable only for their own
misconduct.” S.M. v. Krigbaum, 808 F.3d 335, 340 (8" Cir. 2015). As such, § 1983 liability
“requires a causal link to, and direct responsibility for, the deprivation of rights.” Mayorga v.
Missouri, 442 F.3d 1128, 1132 (8" Cir. 2006) (quoting Madewell v. Roberts, 909 F.2d 1203, 1208
(8 Cir. 1990)). See also Kohl y. Casson, 5 F.3d 1141, 1149 (8" Cir. 1993) (dismissing plaintiff's
excessive bail claims because none of the defendants set plaintiff's bail, and therefore, “there can
be no causal connection between any action on the part of the defendants and any alleged

5 .

deprivation” of plaintiff's rights). To that end, a plaintiff must allege facts connecting the
defendant to the challenged action. See Bitzan v. Bartruff, 916 F.3d 716, 717 (8" Cir. 2019).
Here, plaintiff has made no effort to connect each of the individual defendants he has
identified with any action violating his constitutional rights. To the contrary, there are no
allegations against the specific defendants whatsoever. Rather, each defendant is merely listed in
the complaint, alongside an enormous sum of damages. For example, plaintiff seeks $85 trillion
from “CO1,” without presenting a single fact as to what CO1 did or did not do to harm him. This
holds true for all the rest of the State of Missouri defendants as well. None of them are alleged to
have taken any inappropriate action, and none of them are alleged to have failed to act.
The only place in the complaint where these individuals appear is where they are named as
defendants. Simply naming a person as a defendant is not sufficient to assert their responsibility.
See Allen v. Purkett, 5 F.3d 1151, 1153 (8" Cir. 1993) (agreeing with district court dismissal of
two defendants who were identified as defendants in the complaint, but who had no factual
allegations made against them); and Krych v. Hvass, 83 Fed. Appx. 854, 855 (8" Cir. 2003)
(agreeing with district court dismissal of defendants who were merely listed in his complaint, and
who were not alleged to have been personally involved in the constitutional violations). For these
reasons, the individual capacity claims against the State of Missouri employees must be dismissed.
E. United States Elected Officials
Plaintiff has listed an unnamed member of the House of Representatives, and two Senators
as defendants. The Court has construed these claims as being made against United States elected
officials. These three defendants are sued in both their official and individual capacities.

10

i. Official Capacity Claims
A suit against a governmental officer in his official capacity is a suit against the entity for
which the officer is an agent. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). A U.S. Senator
or a Member of the House of Representatives is an agent of the United States. See Burke v. Allard,
2007 WL 2697598, at *3 (D. Colo. 2007) (explaining that “defendant, a member of the United
States Senate, is an agent of the United States”). As such, plaintiff's official capacity claims against
these defendants are actually claims against the United States itself.
“Generally, sovereign immunity prevents the United States from being sued without its
consent.” Iverson v. United States, 973 F.3d 843, 846 (8" Cir. 2020). See also Hinsley v. Standing
Rock Child Protective Services, 516 F.3d 668, 671 (8" Cir. 2008) (stating that “[i]t is well settled
that the United States may not be sued without its consent”). Thus, in order to sue the United
States, a plaintiff must show a waiver of sovereign immunity. See V S Ltd. Partnership v. Dep’t of
Housing and Urban Development, 235 F.3d 1109, 1112 (8 Cir. 2000). Such a waiver must be
“unequivocally expressed” and “cannot be implied.” See United States v. King, 395 U.S. 1, 4
(1969). See also College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527
U.S. 666, 682 (1999) (stating that “in the context of federal sovereign immunity...it is well
established that waivers are not implied”).
Here, plaintiff has not demonstrated a waiver of the sovereign immunity of the United
States. He brings this action pursuant to 42 U.S.C. § 1983. However, § 1983 does not waive the
United States’ sovereign immunity. See Walker v. Harmon, 2016 WL 5376185, at *3 (D. S.D.
2016) (citing Affiliated Professional Home Health Care Agency v. Shalala, 164 F.3d 282, 286 □□□
Cir. 1999)). Aside from § 1983, plaintiff provides no other basis for such a waiver. Therefore,

11

plaintiff's official capacity claims against the unnamed Member of the House of Representatives
and the two Senators must be dismissed.
ii. Individual Capacity Claims
As noted above, 42 U.S.C. § 1983 liability “requires a causal link to, and direct
responsibility for, the deprivation of rights.” Mayorga, 442 F.3d at 1132. Here, plaintiff has made
no attempt to demonstrate any linkage between an action or inaction on the part of one of these
three defendants, and the purported violation of his rights under the First Amendment. Not only
has plaintiff failed to present any factual allegations, it is difficult to imagine what personal
responsibility a member of the House of Representatives and two Senators could have with regard
to plaintiff's religious materials and religious diet while incarcerated. Therefore, the individual
capacity claims against these three defendants must be dismissed.
F. First Amendment Free Exercise Claim
Even leaving aside plaintiff's failure to demonstrate the personal responsibility of any of
the defendants for harming him, plaintiffhas not stated a free exercise claim. The First Amendment
to the United States Constitution provides, in relevant part, that “Congress shall make no law
respecting an establishment of religion, or prohibiting the free exercise thereof...” U.S. Const.
amend I. Pursuant to the Free Exercise Clause, an individual has the right to believe and profess
whatever religious doctrine he or she desires. Jn re Kemp, 894 F.3d 900, 907 (8 Cir. 2018).
Moreover, the government may not compel religious belief, punish the expression of religious
doctrines, impose special disabilities based on religious views or religious status, or lend its power
to a particular side in controversies over religious authority or dogma. Jd.
Under the Free Bxercise Clause of the First Amendment, a plaintiff must first raise a
question of fact regarding whether the prison has placed a substantial burden on his ability to

12

practice his religion. Patel v. U.S. Bureau of Prisons, 515 F.3d 807, 813 (8" Cir. 2008). See also
Weir v. Nix, 114 F.3d 817, 820 (8" Cir. 1997) (stating that “[a]s an initial matter, a person claiming
that a governmental policy or action violates his right to exercise his religion freely must establish
that the action substantially burdens his sincerely held religious belief’). “To constitute a
substantial burden, the government policy or actions must significantly inhibit or constrain conduct
or expression that manifests some central tenet of a person’s individual religious beliefs; must
meaningfully curtail a person’s ability to express adherence to his or her faith; or must deny a
person reasonable opportunities to engage in those activities that are fundamental to a person’s
religion.” Murphy v. Missouri Dep’t of Corrs., 372 F.3d 979, 988 (8" Cir. 2004).
Here, plaintiff claims to be part of a religion he identifies as
“Astru/Odinism/Catholicism/[Paganism],” and asserts that he has been “asking about [his]
religious [materials] and diet,” but has received “no response at all but a flat out no.” There are no
further factual allegations. This is inadequate, without more, to state a claim. Specifically, there
are no facts indicating the content of this religious material or diet, much less that a denial inhibits
expression manifesting some central tenet of his religious beliefs, or that he has been meaningfully
curtailed in expressing adherence to his faith, or that he has been denied reasonable opportunities
to engage in the fundamental activities of his religion. Plaintiff's allegations amount to an
unsupported conclusion, which the Court is not required to accept as true. See Wiles v. Capitol
Indem. Corp., 280 F.3d 868, 870 (8 Cir. 2002) (“While the court must accept allegations of fact
as true...the court is free to ignore legal conclusions, unsupported conclusions, unwarranted
inferences and sweeping legal conclusions cast in the form of factual allegations”).

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G. Motion to Appoint Counsel
In the body of his complaint, plaintiff moves for the appointment of counsel. (Docket No.
1 at 1). The motion will be denied as moot as this action is being dismissed without prejudice. See
28 U.S.C. § 1915(e)(2)(B).
Accordingly,
IT IS HEREBY ORDERED that plaintiffs motion for leave to proceed in forma pauperis
is GRANTED.
IT IS FURTHER ORDERED that plaintiff must pay an initial partial 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) the case number; and (4) the statement that the remittance is for an original
proceeding.
IT IS FURTHER ORDERED that plaintiff's motion for appointment of counsel is ~

DENIED AS MOOT.
IT IS FURTHER ORDERED that this action is DISMISSED without prejudice. See 28
U.S.C. § 1915(e)(2)(B). A separate order of dismissal will be entered herewith.
IT IS FURTHER ORDERED that an appeal from this dismissal would not be taken in
good faith.
Dated this SFP say of Cite ) , 2021.

RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE

14

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10234905. Public record. Not legal advice.