Butler v. James
OPINION AND ORDER that Marion C. Butler's complaint against William O. James, Jr., is DISMISSED for failure to state a claim; judgment will be entered accordingly. Signed by Chief Judge J. Leon Holmes on 10/6/11. (vjt)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
MARION C. BUTLER,
No. 4:11CV00708 JLH-JTK
WILLIAM O. JAMES, JR.
OPINION AND ORDER
Marion C. Butler, a state inmate incarcerated at the Wrightsville Hawkins Unit for Males of
the Arkansas Department of Correction, was granted permission to proceed in forma pauperis in this
lawsuit filed pursuant to 42 U.S.C. § 1983. Butler alleges that William O. James, Jr., a licensed
Arkansas attorney, failed to refund legal fees that were paid in advance but not earned.
The Prison Litigation Reform Act authorizes federal courts to dismiss an in forma pauperis
complaint or portion thereof if the action is frivolous or malicious, the complaint fails to state a claim
on which relief may be granted, or the action seeks monetary relief from a defendant who is immune
from such relief. 28 U.S.C. § 1915(e)(2)(B). An action is frivolous if “it lacks an arguable basis
either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325, 109 S. Ct. 1827, 1831-32, 104 L.
Ed. 2d 338 (1989). Whether a plaintiff is represented by counsel or is appearing pro se, his
complaint must allege specific facts sufficient to state a claim. See Martin v. Sargent, 780 F.2d
1334, 1337 (8th Cir. 1985) (“Although it is to be liberally construed, a pro se complaint must contain
specific facts supporting its conclusions.”). 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 Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929 (2007).
To state a claim for relief under section 1983, the complaint must allege that a person acting
under the color of state law deprived the plaintiff of a constitutional or statutory right. American
Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50, 119 S. Ct. 977, 985, 143 L. Ed. 2d 130 (1999).
Merely private conduct is not within the reach of section 1983. Id. at 50. In this case, Butler alleges
that James, a private attorney retained to represent him, failed to refund fees that were paid in
advance but never earned. Because James is a private actor who was not acting under color of state
law, the complaint fails to state a claim for relief under section 1983, and it should be dismissed.
IT IS, THEREFORE, ORDERED that Marion C. Butler’s complaint against William O.
James, Jr., is DISMISSED for failure to state a claim.1
The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an in forma pauperis
appeal taken from this Opinion and Order and accompanying Judgment dismissing this action would
be frivolous and not in good faith.
IT IS SO ORDERED this 6th day of October, 2011.
J. LEON HOLMES
UNITED STATES DISTRICT JUDGE
This dismissal is considered a “strike” within the meaning of the PLRA, 42 U.S.C.
§ 1915(g), which provides that a prisoner may not file a pro se civil action or appeal if the
prisoner has, on three or more prior occasions, filed an action or appeal that was dismissed as
frivolous, malicious or for failure to state a claim, “unless the prisoner is under imminent danger
of serious physical injury.”
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