Givens v. Tvedt et al

Filing 2

INITIAL Review Order Dismissing Case as Frivolous: 1 Application to proceed in forma pauperis is granted. The clerks office is directed to file the complaint without the prepayment of the filing fee. The plaintiff is directed to submit an initial p artial filing fee of $1.00 by no later than 11/29/2013. 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 USC 1915(b)(2). 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 USC 1983 action is dismissed pursuant to 28 USC 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 USC 1915(g). Signed by Chief Judge Linda R Reade on 10/30/2013. (NEF and order mailed to Plaintiff; Order mailed to Warden) (pac)

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

GREGORY GIVENS,
Plaintiff,

No. C13-0083-LRR

vs.
DANIEL TVEDT, CORY J.
GOLDENSOPH,

INITIAL REVIEW ORDER

Defendants.
____________________________
This matter is before the court on the plaintiff’s application to proceed in forma
pauperis (docket no. 1). The plaintiff filed such application on August 21, 2013. Along
with his application to proceed in forma pauperis, the plaintiff submitted a complaint.
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 deemed 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 his
statements, the court finds that the initial partial filing fee is $1.00. Id. The plaintiff shall
submit $1.00 by no later than November 29, 2013. Id. 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 (1980); Haines v. Kerner, 404 U.S. 519, 520 (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 must be weighed in favor of the plaintiff. Denton v. Hernandez,
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504 U.S. 25, 32-33 (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
(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 (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. CLAIMS ASSERTED
While confined at the Linn County Correctional Center in Linn County, Iowa, the
plaintiff, proceeding pro se, submitted a complaint to redress issues that are related to his
federal criminal case, that is, United States v. Givens, Case #1:12-cr-00055-LRR (N.D.
Iowa 2013). Jurisdiction appears to be predicated on 28 U.S.C. § 1343. Under 28 U.S.C.
§ 1391(b), venue appears to be proper as the events giving rise to the instant action
occurred in this district. Despite the fact that the plaintiff did not use the form that is
typically used by inmates who claim violations of their civil rights, it is apparent from the
plaintiff’s complaint that he disapproves of the role that the defendants played in his
criminal case. As relief, the plaintiff states that he wants to be paid $4,000,000.00, to be
immediately released from prison and to have the charges against him dismissed.

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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. Congress enacted 42 U.S.C. § 1983 to provide a “broad remedy for
violations of federally protected civil rights.” Monell v. Dep’t of Soc. Servs. of N.Y., 436
U.S. 658, 685 (1978). However, 42 U.S.C. § 1983 provides no substantive rights.
Albright v. Oliver, 510 U.S. 266, 271 (1994); Graham v. Conner, 490 U.S. 386, 393-94
(1989); Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617 (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 (stating that 42 U.S.C. § 1983 “merely
provides ‘a method for vindicating federal rights elsewhere conferred’” (quoting Baker v.
McCollan, 443 U.S. 137, 144 n.3 (1979))); Graham, 490 U.S. at 393-94 (same); Maine
v. Thiboutot, 448 U.S. 1, 4 (1980) (stating that “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 (1988).

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B. Plaintiff’s Claims
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 or federal
law. With respect to Daniel Tvedt, a prosecutor is immune from civil rights claims that
are based on actions taken in the performance of his prosecutorial duties. See Burns v.
Reed, 500 U.S. 478, 486 (1991) (quoting Imbler v. Pachtman, 424 U.S. 409, 430-31
(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 Daniel Tvedt presented
the government’s case and that his conduct is intimately associated with the performance
of his official duties. Accordingly, the plaintiff’s action against Daniel Tvedt shall be
dismissed for failing to state a claim upon which relief can be granted.
In addition, with respect to Cory J. Goldensoph, 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, courtappointed or defender of the public) takes during the course of representing a criminal
defendant. See Polk County v. Dodson, 454 U.S. 312, 325 (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, Cory J. Goldensoph’s purely private
actions afford no basis for federal jurisdiction and the plaintiff’s claim that Cory J.
Goldensoph violated his civil rights is without merit. Accordingly, the plaintiff’s action
against Cory J. Goldensoph shall be dismissed for failing to state a claim upon which relief
can be granted.
In light of the foregoing, the plaintiff’s complaint shall be dismissed as frivolous or
for failing to state a claim upon which relief can be granted. Because the court deems it
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appropriate to dismiss the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B), the dismissal
of this action 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 $1.00 by no later
than November 29, 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 30th day of October, 2013.

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TO:

WARDEN/ADMINISTRATOR
Linn County Correctional Center, Cedar Rapids, Iowa
NOTICE OF COLLECTION OF FILING FEE
You are hereby given notice that Gregory Givens, an inmate at your facility, filed

the following lawsuit in the United States District Court for the Northern District of Iowa:
Givens v. Tvedt et al., Case No. C13-0083-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 $1.00, 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.
_______________________
Robert L. Phelps
U.S. District Court Clerk
Northern District of Iowa