Freeman-El v. Sullivan

Filing 14

MEMORANDUM AND ORDER re: 13 MOTION for Extension of: submit Intial Partial Filing Fee filed by Plaintiff Paul David Freeman-El motion is GRANTED; all other pending motions are DENIED AS MOOT. IT IS HEREBY ORDERED that the Clerk shall not is sue process or cause process to issue, because the amended complaint is legally frivolous and fails to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B). IT IS FURTHER ORDERED that plaintiff's request for additio nal time, up to and including March 30, 2013, in which to pay the initial partial filing fee is GRANTED, and all other pending motions are DENIED as moot. A separate Order of Dismissal shall accompany this Memorandum and Order. (Initial Partial Filing Fee due by 3/30/2013.)Signed by District Judge Jean C. Hamilton on 2/8/13. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

PAUL DAVID FREEMAN-EL,
Plaintiff,
v.
BOBBY SULLIVAN, et al.,
Defendants.

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No. 1:12-CV-166-LMB

MEMORANDUM AND ORDER
This matter is before the Court upon the filing of plaintiff's first amended
complaint [Doc. #9].
28 U.S.C. § 1915(e)
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court must dismiss a complaint filed
in forma pauperis if the action is frivolous, malicious, fails to state a claim upon which
relief can be granted, or seeks monetary relief from a defendant who is immune from
such relief. An action is frivolous if it "lacks an arguable basis in either law or fact."
Neitzke v. Williams, 490 U.S. 319, 328 (1989). An action is malicious if it is
undertaken for the purpose of harassing the named defendants and not for the purpose
of vindicating a cognizable right. Spencer v. Rhodes, 656 F. Supp. 458, 461-63
(E.D.N.C. 1987), aff'd 826 F.2d 1059 (4th Cir. 1987). 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
(2007).
To determine whether an action fails to state a claim upon which relief can be
granted, the Court must engage in a two-step inquiry. First, the Court must identify the
allegations in the complaint that are not entitled to the assumption of truth. Ashcroft
v. Iqbal, 129 S. Ct. 1937, 1950-51 (2009). These include "legal conclusions" and
"[t]hreadbare recitals of the elements of a cause of action [that are] supported by mere
conclusory statements." Id. at 1949. Second, the Court must determine whether the
complaint states a plausible claim for relief. Id. at 1950-51. This is a "context-specific
task that requires the reviewing court to draw on its judicial experience and common
sense." Id. at 1950. The plaintiff is required to plead facts that show more than the
"mere possibility of misconduct." Id. The Court must review the factual allegations
in the complaint "to determine if they plausibly suggest an entitlement to relief." Id. at
1951. When faced with alternative explanations for the alleged misconduct, the Court
may exercise its judgment in determining whether plaintiff's conclusion is the most
plausible or whether it is more likely that no misconduct occurred. Id. at 1950, 51-52.
Moreover, in reviewing a pro se complaint under § 1915(e)(2)(B), the Court
must give the complaint the benefit of a liberal construction. Haines v. Kerner, 404
U.S. 519, 520 (1972). The Court must also weigh all factual allegations in favor of the

plaintiff, unless the facts alleged are clearly baseless. Denton v. Hernandez, 504 U.S.
25, 32 (1992).
The Amended Complaint
Plaintiff, an inmate at the Southeast Correctional Center, brings this action
pursuant to 42 U.S.C. §§ 1983 and 1985. In addition, plaintiff asserts state-law claims
for "false arrest misconduct and torts." The named defendants are Bobby Sullivan
(Sikeston Police Detective) and Amy Commran (Public Defender), and plaintiff is suing
them in their individual capacities.
Plaintiff alleges that defendant Sullivan falsely arrested him on November 17,
2011, on charges of burglary, receiving stolen property, and possession of crack
cocaine. Plaintiff was appointed an attorney, defendant Commran, who plaintiff claims
rendered him “ineffective representation.” Plaintiff states that the receipt-of-stolenproperty charge was subsequently dismissed, and he was forced to enter a plea of guilty
on the remaining charges of possession of a controlled substance and second degree
burglary. According to plaintiff, his involuntary guilty plea was due to Sullivan's illegal
search and seizure and false arrest, as well as a conspiracy between Sullivan and
Commran to deny plaintiff his Constitutional rights. More specifically, plaintiff states
that his plea was made "out of fear, misapprehension and ineffective representation in
furtherance with state officials' conspiracy to deny plaintiff's [Constitutional rights] and
prohibitions prescribed by Missouri's false arrest laws." Plaintiff was sentenced to

three years' imprisonment on each charge, to run concurrently.
Discussion
I. Section 1983 Claims
To recover damages for an allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions that would render a conviction or
sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been
reversed, expunged, declared invalid by a state tribunal, or called into question by a
federal court's issuance of a writ of habeas corpus. Heck v. Humphrey, 512 U.S. 477
(1994). Plaintiff does not claim, nor does it appear to the Court, that his state sentence
or convictions for burglary and possession of a controlled substance have been
reversed, expunged, invalidated, or called into question. As such, having carefully
reviewed the complaint, the Court concludes that plaintiff's § 1983 claims against
defendants Sullivan and Commran are barred by the United States Supreme Court's
holding in Heck.
Furthermore, the complaint is legally frivolous as to Amy Commran for the
additional reason that public defenders performing lawyers' traditional functions do not
act under color of state law for purposes of § 1983. Polk County v. Dodson, 454 U.S.
312, 325 (1981).
II. Section 1985 claims
Title 42 U.S.C. § 1985 concerns conspiracies to interfere with civil rights. "[A]

conspiracy claim . . . requires allegations of specific facts tending to show a 'meeting
of the minds' among the alleged conspirators." See Murray v. Lene, 595 F.3d 868, 870
(8th Cir. 2010)(citations omitted). Plaintiff's factual allegations do not directly or
indirectly suggest such a "meeting of the minds" between the defendants. Moreover,
§ 1985(3) provides in pertinent part:
If two or more persons . . . conspire . . . for the purposes of
depriving, either directly or indirectly, any person or class of
persons of the equal protection of the laws, or of equal
privileges and immunities under the laws . . . the party so
injured or deprived may have an action for the recovery of
damages occasioned by such injury or deprivation, against
any one or more of the conspirators.
Thus, to state a claim under § 1985(3), a plaintiff must establish that (1) he is a member
of a class suffering from invidious discrimination; and (2) defendants’ actions were
motivated by racial animus or some other type of class-based discrimination. United
Bhd. of Carpenters, Local 610 v. Scott, 463 U.S. 825, 834-39 (1983); Griffin v.
Breckenridge, 403 U.S. 88, 102-03 (1971) (plaintiff must allege these two elements to
state § 1985(3) claim). Nothing in the instant amended complaint indicates that
plaintiff is a member of a protected class or that defendants were motivated by
purposeful discrimination.

For these reasons, plaintiff’s § 1985 claims will be

dismissed pursuant to § 1915(e)(2)(B).
III. Pendent State Claims
Because plaintiff's federal claims will be dismissed, all remaining pendent state

claims will also be dismissed. See 28 U.S.C. § 1367(c)(3); United Mine Workers v.
Gibbs, 383 U.S. 715, 726 (1966)(if federal claims are dismissed before trial, remaining
state claims should also be dismissed); Hassett v. Lemay Bank & Trust Co.,851 F.2d
1127, 1130 (8th Cir. 1988) (where federal claims have been dismissed, district courts
may decline jurisdiction over pendent state claims as a "matter of discretion").
In accordance with the foregoing,
IT IS HEREBY ORDERED that the Clerk shall not issue process or cause
process to issue, because the amended complaint is legally frivolous and fails to state
a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B).
IT IS FURTHER ORDERED that plaintiff’s request for additional time, up to
and including March 30, 2013, in which to pay the initial partial filing fee is
GRANTED, and all other pending motions are DENIED as moot.
A separate Order of Dismissal shall accompany this Memorandum and Order.
Dated this 8th day of February, 2013.

/s/ Jean C. Hamilton
UNITED STATES DISTRICT JUDGE