Opinion
4:24-cv-01662-RHH
12-16-2024
FREDRICK ERNEST GRAHAM, Plaintiff, v. U.S. SENATE, et al., Defendants.
MEMORANDUM AND ORDER
RODNEY H. HOLMES, UNITED STATES MAGISTRATE JUDGE
This matter is before the Court for preliminary review. On December 6, 2024, Plaintiff Fredrick Ernest Graham instituted this action with a handwritten document titled “18 U.S.C. § 3583.” (ECF No. 1). In this filing, Plaintiff asks the Court to vacate his sentence, remove his ankle monitor, and terminate his probation. (Id.). He does not specify the criminal proceeding underlying his claims and names only the United States Senate as a defendant. Id.
The complaint names “U.S. Senate, et al.” but does not identify any additional defendants.
Deficiencies
It is unclear whether Plaintiff intends to bring a civil rights action under 42 U.S.C. § 1983 or seek habeas relief under 28 U.S.C. § 2255. Regardless of his intent, the filing is procedurally deficient because: (1) it was not submitted on a Court-approved form as required by Local Rule 2.06(A); and (2) Plaintiff has neither paid a filing fee nor submitted an application to proceed in forma pauperis. For these reasons, the Court will require Plaintiff to submit an amended pleading on the appropriate form.
Filing Options and Requirements
Civil Rights Action (§ 1983). If Plaintiff intends to pursue a claim under § 1983, he must file an amended pleading using the attached “Civil Complaint” form. Additionally, he must either pay the $405 filing fee or submit the attached “Application to Proceed in District Court without Prepaying Fees or Costs.”
Habeas Relief (§ 2255). If Plaintiff seeks to challenge his federal sentence under § 2255, he must file an amended pleading using the attached “Motion under 28 U.S.C. § 2255” form. There is no filing fee for a § 2255 motion.
Plaintiff is advised that § 2255 motions are subject to a one-year statute of limitations, which generally begins running on the date the judgment of conviction becomes final. See 28 U.S.C. § 2255(f); Mora-Higuera v. United States, 914 F.3d 1152, 1154 (8th Cir. 2019). The Court's records show that Plaintiff was sentenced to 105 months' imprisonment on February 3, 2016, following his conviction for possession of a firearm as a felon. See United States v. Fredrick Ernest Graham, No. 4:14-cr-00333-RLW-1 (E.D. Mo. 2017) (ECF No. 144).If Plaintiff seeks to challenge this conviction under § 2255, he must explain on page 11 of the § 2255 form why his filing should not be dismissed as untimely.
The Court takes judicial notice of Plaintiff's criminal proceeding. See United States v. Jackson, 640 F.2d 614, 617 (8th Cir. 1981) (stating that a court may take judicial notice of its own records) (citations omitted).
Accordingly, IT IS HEREBY ORDERED that Plaintiff must, within thirty (30) days of the date of this Order, file an amended pleading on the appropriate Court-approved form. If pursuing a § 1983 claim, Plaintiff shall either pay the $405 filing fee or submit a completed “Application to Proceed in District Court without Prepaying Fees or Costs.” If pursuing relief under § 2255, he shall explain why this action should not be dismissed as untimely. Failure to comply with this Order will result in the dismissal of this action without prejudice and without further notice.
IT IS FURTHER ORDERED that the Clerk of Court shall mail to Plaintiff a copy of the following forms:
- Civil Complaint (MOED-0032)
- Motion under 28 U.S.C. § 2255 (AO-0243)
- Application to Proceed in District Court without Prepaying Fees or Costs (MOED-0046)
APPLICATION TO PROCEED IN DISTRICT COURT WITHOUT PREPAYING FEES OR COSTS (Short Form)
I am a plaintiff or petitioner in this case and declare that I am unable to pay the costs of these proceedings and that I am entitled to the relief requested.
In support of this application, I answer the following questions under penalty of perjury:
1. if incarcerated. I am being held at:__.
If employed there, or have an account in the institution, I have attached to this document a statement certified by the appropriate institutional officer showing all receipts, expenditures, and balances during the last six months for any institutional account in my name. I am also submitting a similar statement from any other institution where I was incarcerated during the last six months.
2. If not incarcerated. If I am employed, my employer's name and address are:
My gross pay or wages are: $__, and my take-home pay or wages are: $__per
(specify pay period) __.
3. Other Income. In the past 12 months, I have received income from the following sources (check all that apply):
(a) Business, profession, or other self-employment __Yes __No
(b) Rent payments, interest, or dividends __Yes __No
(c) Pension, annuity, or life insurance payments __Yes __No
(d) Disability or worker's compensation payments __Yes __No
(e) Gifts or inheritances __Yes __No
(f) Any other sources __Yes __No
If you answered “Yes” to any question above, describe below or on separate pages each source of money and state the amount that you received and what you expect to receive in the future.
4. Amount of money that I have in cash or in a checking or savings account: $ __.
5. Any automobile, real estate, stock, bond, security, trust, jewelry, art work, or other financial instrument or thing of value that I own, including any item of value held in someone else's name (describe the property and its approximate value):
6. Any housing, transportation, utilities, or loan payments, or other regular monthly expenses (describe and provide the amount of the monthly expense):
7. Names (or, if under 18, initials only) of all persons who are dependent on me for support, my relationship with each person, and how much I contribute to their support:
8. Any debts or financial obligations (describe the amounts owed and to whom they are payable):
Declaration: I declare under penalty of perjury that the above information is true and understand that a false statement may result in a dismissal of my claims.
Applicant's Signature
Printed Name
Date