United States District Court, D. South Dakota, Southern Division
ORDER DISMISSING CASE
E. SCHREIER UNITED STATES DISTRICT JUDGE.
James Anthony Murphy, is an inmate at the Oxford Correctional
Institution in Oxford, Wisconsin. On September 19, 2016, he
filed a complaint under 42 U.S.C. § 1983. Docket 1. The
court ordered Murphy to give notice whether he was seeking
habeas relief, and, if he meant to proceed with his §
1983 claims, to pay an initial partial filing fee. Docket 4.
Murphy has given the court notice that he wishes to proceed
under § 1983, Docket 5, and paid his initial partial
filing fee. Docket 6. The court has screened Murphy's
complaint under 28 U.S.C. § 1915A. For the following
reasons Murphy is granted in forma pauperis status, and his
complaint is dismissed.
March 2014, Murphy visited a website called “back
page” that offers what Murphy calls “Adult
services and entertainment . . . .” Docket 1
¶¶ 4-5. Murphy clicked on an advertisement that led
him to a site that advertised “Too Hot Young
Girls.” Id. ¶¶ 6-7. Murphy alleges
that he did not know what the website was but emailed the
owner of the listing, who then sent him pictures of
“available” women. Id. ¶¶ 6-8.
Murphy alleges that he refused the “offer, ” but
the owner kept calling and emailing Murphy. Id.
¶ 9. The owner of the website was an undercover Sioux
Falls police officer. Id.
receiving multiple calls and emails, Murphy agreed to meet
the website owner. Id. ¶ 10. Murphy alleges
that once he met the website owner and learned the age of
“the person whom would be meeting with him, ” he
tried to leave. Id. ¶ 11. Murphy alleges he was
held against his will. Id. His complaint does not
state what happened next, but Murphy eventually pleaded
guilty, id. ¶ 12, and is now serving a 24 month
sentence. Id. ¶ 1.
September 19, 2016, Murphy filed this complaint raising three
claims. Docket 1. The court, noting that his claims were
likely barred by Heck v. Humphrey, 512 U.S. 477, 487
(1994)), ordered him to give notice whether he was seeking
habeas relief or wished to proceed with his claims under
§ 1983. Docket 4. Murphy gave notice that he wished to
proceed with his claims under § 1983. Docket 5.
court must accept the well-pleaded allegations in the
complaint as true. Schriener v. Quicken Loans, Inc.,
774 F.3d 442, 444 (8th Cir. 2014). Civil rights and pro se
complaints must be liberally construed. Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (citation omitted);
Bediako v. Stein Mart, Inc., 354 F.3d 835, 839 (8th
Cir. 2004). Even with this construction, “a pro se
complaint must contain specific facts supporting its
conclusions.” Martin v. Sargent, 780 F.2d
1334, 1337 (8th Cir. 1985); Ellis v. City of
Minneapolis, 518 F.App'x 502, 504 (8th Cir. 2013). A
complaint “does not need detailed factual allegations .
. . [but] requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007). “If a plaintiff cannot make the
requisite showing, dismissal is appropriate.”
Abdullah v. Minnesota, 261 F. App'x 926, 927
(8th Cir. 2008); Beavers v. Lockhart, 755 F.2d 657,
663 (8th Cir. 1985).
Motion for Leave to Proceed in Forma Pauperis
it was not clear whether Murphy meant to file a § 1983
complaint or whether he sought habeas relief, the court
provisionally granted Murphy leave to proceed in forma
pauperis. Now that Murphy states that he wishes to proceed
with his claims under § 1983, the court determines
whether to grant him leave to proceed in forma pauperis.
the Prison Litigation Reform Act (PLRA), a prisoner who
''brings a civil action or files an appeal in forma
pauperis . . . shall be required to pay the full amount of a
filing fee.'' 28 U.S.C. § 1915(b)(1). ''
'When an inmate seeks pauper status, the only issue is
whether the inmate pays the entire fee at the initiation of
the proceedings or over a period of time under an installment
plan.' '' Henderson v. Norris, 129 F.3d
481, 483 (8th Cir. 1997) (quoting McGore v.
Wrigglesworth, 114 F.3d 601, 604 (6th Cir. 1997)).
addition to the initial partial filing fee that Murphy has
already paid, he 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