Merrival, Jr v Miller, et al

Filing 2

INITIAL Review Order Dismissing Case: 1 Application to proceed in forma pauperis is granted. Clerk of Court shall file the complaint without prepayment of the filing fee. Plaintiff is directed to submit an initial partial filing fee of $3.33 by no later than 2/28/13. The institution having custody of the plaintiff is directed to collect and remit monthly payments in the manner set forth in 28 U.S.C. § 1915(b)(2). Until the $350.00 filing fee is paid in full. The clerks office is directed to send a copy of this order and the notice of collection of filing fee to the appropriate official at the place where the plaintiff is an inmate. The plaintiffs 42 U.S.C. § 1983 action is dismissed pursuant to 28 U.S.C. § 1915( e)(2)(B). The dismissal of the instant action counts against the plaintiff for purposes of the three-dismissal rule set forth in 28 U.S.C. § 1915(g). Signed by Chief Judge Linda R Reade on 2/11/13. (ksy)(copy w/NEF to Def; copy w/NEF to Warden at Anamosa State Penitentiary)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION

DONROY ROBERT MERRIVAL, JR.,
Plaintiff,

No. C12-0127-LRR

vs.
PAUL D. MILLER, LORAINE
WALLACE, FOREST GUDDALL,
CLERK OF COURT JOHNSON
COUNTY COURTHOUSE, MARK
MEYER,

INITIAL REVIEW ORDER

Defendants.
____________________________
This matter is before the court on the plaintiff’s application to proceed in forma
pauperis. The plaintiff submitted such application on December 13, 2012. Along with his
application to proceed in forma pauperis, the plaintiff submitted a complaint pursuant to 42
U.S.C. § 1983.
I. IN FORMA PAUPERIS UNDER 28 U.S.C. § 1915
Based on the plaintiff’s application to proceed in forma pauperis, the court concludes
that the plaintiff does not have sufficient funds to pay the required filing fee. 28 U.S.C.
§ 1914(a) (requiring $350.00 filing fee). Thus, in forma pauperis status shall be granted to
the plaintiff. See generally 28 U.S.C. § 1915. The clerk’s office shall file the complaint
without the prepayment of the filing fee. Although the court deems it appropriate to grant
the plaintiff in forma pauperis status, the plaintiff is required to pay the full $350.00 filing
fee by making payments on an installment basis. 28 U.S.C. § 1915(b)(1); see also In re
Tyler, 110 F.3d 528, 529-30 (8th Cir. 1997) (“[T]he [Prisoner Litigation Reform Act] makes
prisoners responsible for their filing fees the moment the prisoner brings a civil action or
files an appeal.”). The full filing fee will be collected even if the court dismisses the case

because it is frivolous or malicious, fails to state a claim on which relief may be granted,
or seeks money damages against a defendant who is immune from such relief. 28 U.S.C.
§ 1915(e)(2).
Here, the plaintiff must pay an initial partial filing fee in the amount of 20 percent
of the greater of his average monthly account balance or average monthly deposits for the
six months preceding the filing of the complaint. 28 U.S.C. § 1915(b)(1). Based on the
statements that the plaintiff made, the court finds that the initial partial filing fee is $3.33.
28 U.S.C. § 1915(b)(1). The plaintiff shall submit $3.33 by no later than February 28,
2013. If necessary, the plaintiff may request in a written motion an extension of time to pay
the initial partial filing fee.
In addition to the initial partial filing fee, the plaintiff 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 prisoner’s institution to collect
the additional monthly payments and forward them to the court. Specifically,
[a]fter payment of the initial partial filing fee, the prisoner
shall be required to make monthly payments of 20 percent of the
preceding month’s income credited to the prisoner’s account.
The agency having custody of the prisoner shall forward
payments from the prisoner’s account to the clerk of the court
each time the amount in the account exceeds $10 until the filing
fees are paid.
28 U.S.C. § 1915(b)(2). Therefore, after the plaintiff pays in full the initial partial filing
fee, the remaining installments shall be collected by the institution having custody of the
plaintiff. Id. The clerk’s office shall send a copy of this order and the notice of collection
of filing fee to the appropriate official at the place where the plaintiff is an inmate.
II. STANDARD OF REVIEW
A pro se complaint must be liberally construed. See Hughes v. Rowe, 449 U.S. 5,
9, 101 S. Ct. 173, 66 L. Ed. 2d 163 (1980); Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct.
594, 30 L. Ed. 2d 652 (1972) (per curiam); Smith v. St. Bernards Reg’l Med. Ctr., 19 F.3d
1254, 1255 (8th Cir. 1994). In addition, unless the facts alleged are clearly baseless, they
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must be weighed in favor of the plaintiff. Denton v. Hernandez, 504 U.S. 25, 32-33, 112
S. Ct. 1728, 118 L. Ed. 2d 340 (1992). A court, however, can dismiss at any time a
complaint filed in forma pauperis if the complaint is frivolous, malicious, fails to state a
claim on which relief may be granted, or seeks monetary relief against a defendant who is
immune from such relief. 28 U.S.C. § 1915(e)(2); 28 U.S.C. § 1915A(b)(1). A claim is
“frivolous” if it “lacks an arguable basis in law or in fact.” Neitzke v. Williams, 490 U.S.
319, 325, 109 S. Ct. 1827, 104 L. Ed. 2d 338 (1989); accord Cokeley v. Endell, 27 F.3d
331, 332 (8th Cir. 1994). 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 Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007).
Accordingly, a court may review the complaint and dismiss sua sponte those claims that fail
“‘to raise a right to relief above the speculative level. . . .’”, see Parkhurst v. Tabor, 569
F.3d 861, 865 (8th Cir. 2009) (quoting Bell Atl., 550 U.S. at 555), or that are premised on
meritless legal theories or clearly lack any factual basis, see Neitzke, 490 U.S. at 325.
See, e.g., Denton v. Hernandez, 504 U.S. at 27 (considering frivolousness); Myers v.
Vogal, 960 F.2d 750, 751 (8th Cir. 1992) (concluding that a district court may dismiss an
action if an affirmative defense exists).
III. CLAIM ASSERTED
Currently confined at the Anamosa State Penitentiary in Anamosa, Iowa, the
plaintiff, proceeding pro se, submitted a complaint to redress his dissatisfaction with events
that relate to a post-conviction relief proceeding. The plaintiff predicates jurisdiction on
28 U.S.C. § 1343. Under 28 U.S.C. § 1391(b), venue appears proper.
In his complaint, the plaintiff generally claims that the judge, Paul D. Miller, the
state prosecutors, Loraine Wallace and Forest Guddall, the clerk of court for the Iowa
District Court for Johnson County, and a defense attorney, Mark Meyer, mishandled his
state court case, that is, Merrival v. State, Case No. PCCV071183 (Johnson County Dist.
Ct. 201_). As relief, the plaintiff states that he wants a trial, an attorney to be appointed
and $35,001.00.
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IV. ANALYSIS
A. Claims Under 42 U.S.C. § 1983
Title 42 U.S.C. § 1983 provides, in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory . . .
subjects, or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by
the Constitution and laws, shall be liable to the party injured in
an action at law, suit in equity, or other proper proceeding for
redress . . .
42 U.S.C. § 1983 was designed to provide a “broad remedy for violations of federally
protected civil rights.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 685, 98 S. Ct. 2018,
56 L. Ed. 2d 611 (1978). However, 42 U.S.C. § 1983 provides no substantive rights.
Albright v. Oliver, 510 U.S. 266, 271, 114 S. Ct. 807, 127 L. Ed. 2d 114 (1994); Graham
v. Conner, 490 U.S. 386, 393-94, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989); Chapman v.
Houston Welfare Rights Org., 441 U.S. 600, 617, 99 S. Ct. 1905, 60 L. Ed. 2d 508 (1979).
“One cannot go into court and claim a ‘violation of [42 U.S.C.] § 1983’ — for [42
U.S.C.] § 1983 by itself does not protect anyone against anything.” Chapman, 441 U.S. at
617. Rather, 42 U.S.C. § 1983 provides a remedy for violations of all “rights, privileges,
or immunities secured by the Constitution and laws [of the United States].” 42 U.S.C.
§ 1983; see also Albright, 510 U.S. at 271 (42 U.S.C. § 1983 “merely provides a method
for vindicating federal rights elsewhere conferred.”); Graham, 490 U.S. at 393-94 (same);
Maine v. Thiboutot, 448 U.S. 1, 4, 100 S. Ct. 2502, 65 L. Ed. 2d 555 (1980) (“Constitution
and laws” means 42 U.S.C. § 1983 provides remedies for violations of rights created by
federal statute, as well as those created by the Constitution.). To state a claim under 42
U.S.C. § 1983, a plaintiff must establish: (1) the violation of a right secured by the
Constitution or laws of the United States, and (2) the alleged deprivation of that right was
committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48,
108 S. Ct. 2250, 101 L. Ed. 2d 40 (1988).

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B. Plaintiff’s Claim
Given the facts that are alleged in the complaint, the court concludes that the
plaintiff’s assertions do not give rise to a viable claim under 42 U.S.C. § 1983. The
plaintiff’s state court post-conviction relief proceeding is still pending.1 On October 5,
2012, the Iowa District Court for Johnson County granted relief from dismissal, and the
plaintiff continues to litigate in that case. Indeed, a hearing is scheduled to take place on
February 18, 2013. In light of the record, the plaintiff’s assertions are frivolous.
Further, all of the named defendants are either immune from suit or unable to be sued
under 42 U.S.C. § 1983. A judge, performing judicial functions, enjoys absolute immunity
from 42 U.S.C. § 1983 liability. See Pierson v. Ray, 386 U.S. 547, 554-55 (1967);
Whisman v. Rinehart, 119 F.3d 1303, 1309 (8th Cir. 1997); Callahan v. Rendlen, 806 F.2d
795, 796 (8th Cir. 1996). Here, it is clear that Paul D. Miller performed as a judge.
Accordingly, the plaintiff’s action against him shall be dismissed for failing to state a claim
upon which relief can be granted.
Similarly, Loraine Wallace, Forest Guddall, and the clerk of court for the Iowa
District Court for Johnson County are entitled to immunity. A prosecutor is immune from
civil rights claims that are based on actions taken in the performance of his or her
prosecutorial duties. See Burns v. Reed, 500 U.S. 478, 486, 111 S. Ct. 1934, 114 L. Ed.
2d 547 (1991) (quoting Imbler v. Pachtman, 424 U.S. 409, 430-31, 96 S. Ct. 984, 47 L. Ed.
2d 128 (1976)); Patterson v. Von Riesen, 999 F.2d 1235, 1237 (8th Cir. 1993); Snelling v.
Westhof, 972 F.2d 199, 200 (8th Cir. 1992). Here, it is clear that Loraine Wallace and
Forest Guddall performed as prosecutors, that is, presented the State’s case and that their
conduct is intimately associated with the judicial phase of the civil proceeding.
Accordingly, the plaintiff’s action against Loraine Wallace and Forest Guddall shall be

1

Iowa state court criminal and civil records may be accessed at the following
address: http://www.iowacourts.gov/Online_Court_Services/. See Stutzka v. McCarville,
420 F.3d 757, 760 n.2 (8th Cir. 2005) (addressing court’s ability to take judicial notice of
public records).
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dismissed for failing to state a claim upon which relief can be granted. With respect to the
dismissal that entered pursuant to Iowa Rule of Civil Procedure 1.944, it is clear that the
clerk of court for the Iowa District Court for Johnson County is entitled to immunity.
Nothing the clerk of court for the Iowa District Court for Johnson County did had any
impact on his post-conviction relief action. See Maness v. Dist. Court, 495 F.3d 943, 94445 (8th Cir. 2007).
In addition, a private attorney, even when appointed by the court, ordinarily does not
act under color of state law for purposes of filing an action under 42 U.S.C. § 1983, see
Lemmons v. Law Firm of Morris & Morris, 39 F.3d 264, 266 (10th Cir. 1994), or as a
federal agent for purposes of filing a Bivens action, see Haley v. Walker, 751 F.2d 284, 285
(8th Cir. 1984). Stated differently, a federal suit generally does not arise for actions that
an attorney (privately retained, court-appointed or a public defender) takes during the course
of representing a defendant. See Polk County v. Dodson, 454 U.S. 312, 325, 102 S. Ct.
445, 70 L. Ed. 2d 509 (1981); Bilal v. Kaplan, 904 F.2d 14, 15 (8th Cir. 1990); Mills v.
Criminal Dist. Court No. 3, 837 F.2d 677, 679 (5th Cir. 1988); Haley, 751 F.2d at 285.
Consequently, Mark Meyer’s purely private actions afford no basis for federal jurisdiction
and the plaintiff’s claim that he unconstitutionally advised him or represented him must be
dismissed for lack of subject matter jurisdiction. Accordingly, the action against Mark
Meyer shall be dismissed for failing to state a claim upon which relief can be granted.
Lastly, the plaintiff’s complaint does not include specific allegations against any of
the defendants; the plaintiff’s 42 U.S.C. § 1983 action against all of the defendants is not
cognizable because the plaintiff does not allege that their conduct caused the deprivation of
a federally protected right or that they were personally involved with or had direct
responsibility for the incidents alleged in the complaint. See Gully v. Maynard, 218 F.
App’x 551, 552 (8th Cir. 2007); Martin v. Sargent, 780 F.2d 1334, 1338 (8th Cir. 1985).
Accordingly, the plaintiff’s action against all of the defendants shall be dismissed for failing
to state a claim upon which relief can be granted. Because the court deems it appropriate
to dismiss the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B), the dismissal of this action
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shall count against the plaintiff for purposes of the three-dismissal rule set forth in 28
U.S.C. § 1915(g).

IT IS THEREFORE ORDERED:
(1) The plaintiff’s application to proceed in forma pauperis status (docket no. 1) is
granted.
(2) The clerk’s office is directed to file the complaint without the prepayment of the
filing fee.
(3) The plaintiff is directed to submit an initial partial filing fee of $3.33 by no later
than February 28, 2013. If necessary, the plaintiff may request in a written motion
an extension of time to pay the initial partial filing fee.
(4) After the plaintiff pays the initial partial filing fee, the institution having custody
of the plaintiff is directed to collect and remit monthly payments in the manner set
forth in 28 U.S.C. § 1915(b)(2). Until the $350.00 filing fee is paid in full, the
plaintiff is obligated to pay and the institution having custody of him is obligated to
forward 20 percent of the preceding month’s income credited to his account each
time the amount in the account exceeds $10.00.
(5) The clerk’s office is directed to send a copy of this order and the notice of
collection of filing fee to the appropriate official at the place where the plaintiff is
an inmate.
(6) The plaintiff’s 42 U.S.C. § 1983 action is dismissed pursuant to 28 U.S.C. §
1915(e)(2)(B).

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(7) The dismissal of the instant action counts against the plaintiff for purposes of the
three-dismissal rule set forth in 28 U.S.C. § 1915(g).
DATED this 11th day of February, 2013.

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TO:

WARDEN/ADMINISTRATOR
Anamosa State Penitentiary, Anamosa, Iowa
NOTICE OF COLLECTION OF FILING FEE
You are hereby given notice that Donroy Robert Merrival, #49555, an inmate at your

facility, filed the following lawsuit in the United States District Court for the Northern
District of Iowa: Merrival v. Miller, et al., Case No. C12-0127-LRR. The inmate was
granted in forma pauperis status pursuant to 28 U.S.C. § 1915(b), which requires partial
payments of the $350.00 filing fee. Based on the inmate’s account information, the court
has assessed an initial partial filing fee of $3.33, which the inmate must pay now to the
clerk of court. 28 U.S.C. § 1915(b)(1).
After payment of the initial partial filing fee, the [inmate] shall
be required to make monthly payments of 20 percent of the
preceding month’s income credited to [his] account. The
agency having custody of the [inmate] shall forward payments
from [his] account to the clerk of the court each time the
amount in the account exceeds $10 until the filing fees are paid.
28 U.S.C. § 1915(b)(2). Therefore, you must monitor the account and send payments to the
clerk of court according to the system provided in 28 U.S.C. § 1915(b)(2), that is, you
should begin making monthly payments of 20 percent of the preceding month’s income
credited to the inmate’s account.
Please make the appropriate arrangements to have these fees deducted and sent to
the court as instructed.
Deputy
_______________________ Clerk
Robert L. Phelps
U.S. District Court Clerk
Northern District of Iowa