Dixon (ID 93766) v. Westblade et al

Filing 6

ORDER ENTERED: Plaintiff's motion 2 and amended motion 5 for leave to proceed in forma pauperis are provisionally granted subject to plaintiff's payment of an initial partial filing fee of $194.50 within thirty (30) days. Plainti ff is granted thirty (30) days to show cause why the complaint should not be summarily dismissed. Plaintiff's motion 4 for appointment of counsel is denied without prejudice. Signed by Senior District Judge Sam A. Crow on 3/6/2013. (Mailed to pro se party Derrick Deron Dixon by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

DERRICK DERON DIXON,
Plaintiff,
v.

CASE NO. 13-3017-SAC

WAYNE K. WESTBLADE, et al.,
Defendants.

O R D E R
This matter comes before the court on form complaint seeking
relief under 42 U.S.C. § 1983, filed pro se by a prisoner incarcerated
in a Kansas Correctional Facility.

Also before the court are

plaintiff’s motion, as amended, for leave to proceed in forma pauperis
under 28 U.S.C. § 1915.
In Forma Pauperis, 28 U.S.C. § 1915
Plaintiff must pay the full $350.00 filing fee in this civil
action.

See 28 U.S.C. § 1915(b)(1)(prisoner bringing a civil action

or appeal in forma pauperis is required to pay the full filing fee).
If granted leave to proceed in forma pauperis, plaintiff is entitled
to pay this filing fee over time, as provided by payment of an initial
partial filing fee to be assessed by the court under 28 U.S.C. §
1915(b)(1) and by periodic payments from plaintiff's inmate trust fund
account as authorized in 28 U.S.C. § 1915(b)(2).
Pursuant to 28 U.S.C. ' 1915(b)(1), the court is required to
assess an initial partial filing fee of twenty percent of the greater
of the average monthly deposits or average monthly balance in the
prisoner's account for the six months immediately preceding the date

of filing of a civil action.

Having examined the limited records

provided by plaintiff for that relevant six month period, the court
finds the average monthly deposit to plaintiff's account is $197.85,
and the average monthly balance is $974.15.

The court therefore

assesses an initial partial filing fee of $194.50, twenty percent of
the average monthly deposit, rounded to the lower half dollar.
Screening the Complaint, 28 U.S.C. § 1915A
A federal court must conduct an initial screening of any action
in which a prisoner seeks relief from a governmental entity or an
officer or employee of such an entity.

See 28 U.S.C. ' 1915A(a).

In

conducting the screening, the court must identify any viable claim
and must dismiss any part of the action which is frivolous, malicious,
fails to state a claim upon which relief may be granted, or seeks
monetary damages from a defendant who is immune from such relief.

See

28 U.S.C. ' 1915A(b).
A pro se party=s complaint must be given a liberal construction.
Haines v. Kerner, 404 U.S. 519, 520 (1972).

However, a party

proceeding pro se has Athe burden of alleging sufficient facts on which
a recognized legal claim could be based.@

Hall v. Bellmon, 935 F.2d

1106, 1110 (10th Cir.1991).
ATo state a claim under ' 1983, a plaintiff must allege the
violation of a right secured by the Constitution and laws of the United
States and must show that the alleged deprivation was committed by
a person acting under color of state law.@

West v. Atkins, 487 U.S.

42, 48 (1988).
To avoid summary dismissal of the complaint under § 1915A(b),
the complaint must present sufficient allegations of fact, assumed
to be true, that Araise a right to relief above the speculative level.@

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

The

complaint must present Aenough facts to state a claim to relief that
is plausible on its face.@

Id. at 570.

At this stage, the court

accepts all well-leaded allegations as true and views them in the light
most favorable to the plaintiff.

Id. at 555.

Having considered the complaint, the court finds it is subject
to being summarily dismissed for the following reasons.
Plaintiff seeks damages on allegations of constitutional error
by defense counsel and the state prosecutor during plaintiff’s state
criminal proceeding.

However, it is well recognized that a criminal

defense attorney is not a “person acting under color of state law”
for the purpose of stating a claim for relief under § 1983.

See Polk

County v. Dodson, 454 U.S. 312, 325 (1981)("a public defender does
not act under color

of state law when performing a lawyer's

traditional functions as counsel to a

defendant in a criminal

proceeding");

F.2d

Barnard

v.

Young,

720

1188,

1189

(10th

Cir.1983)(attorneys engaged in the private practice of law are not
acting under color of

state law).

It is also well established that a state prosecutor is entitled
to

absolute

immunity

from

damages

for

activities

associated with the judicial phase of a criminal process.

intimately
Imbler v.

Pachtman, 424 U.S. 409, 430 (1976); Gagan v. Norton, 35 F.3d 1473,
1475 (10th Cir.1994).
Plaintiff is further advised that relief under § 1983 on
allegations that would render his state conviction invalid are barred
absent a showing the conviction has been reverse, expunged, or
otherwise invalidated. Wilkinson v. Dotson, 544 U.S. 74, 82 (2005);
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).

And to the extent the

complaint

argues

for

the

reversal

of

plaintiff’s

state

court

conviction, such relief in federal court must be pursued in habeas
corpus under 28 U.S.C. § 2254 after first exhausting state court
remedies on all claims presented for federal review.1

See Preiser v.

Rodriguez, 411 U.S. 475 (1973); Rose v. Lundy, 455 U.S. 509 (1982).
Notice and Show Cause Order to Plaintiff
Accordingly, the court directs plaintiff to show cause why the
complaint should not be summarily dismissed as stating no claim for
relief, and as seeking monetary relief from a person immune from such
relief.

28 U.S.C. § 1915A(b); 28 U.S.C. § 1915(e)(2)(B)(ii-iii).

The failure to file a timely response may result in the complaint being
dismissed for the reasons stated herein without further prior notice.
IT IS THEREFORE ORDERED that plaintiff=s motion and amended motion
for

leave

to

proceed

in

forma

pauperis

(Docs.

2

and

5)

are

provisionally granted subject to plaintiff’s payment of an initial
partial filing fee of $194.50 within thirty (30) days, and that payment
of the remainder of the $350.00 district court filing fee is to proceed
thereafter as authorized by 28 U.S.C. § 1915(b)(2).
IT IS FURTHER ORDERED that plaintiff is granted thirty (30) days
to show cause why the complaint should not be summarily dismissed
pursuant

to

28

U.S.C.

§

1915A(b)

and

28

U.S.C.

§

1915(e)(2)(B)(ii-iii).
IT IS FURTHER ORDERED that plaintiff’s motion for appointment
of counsel (Doc. 4) is denied without prejudice.
A copy of this order shall be mailed to plaintiff and to the
Centralized Inmate Banking office for the Kansas Department of

1

Plaintiff states in his complaint that he is currently pursuing an appeal
in the Kansas appellate courts from his state court conviction.

Corrections.
IT IS SO ORDERED.
DATED:

This 6th day of March 2013 at Topeka, Kansas.

s/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge