Harris v. Pearson et al

Filing 5

MEMORANDUM AND ORDER re: 4 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff Antoine Harris motion is GRANTED. IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed informa pauperis [Doc . #4] is GRANTED. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the complaint, because the allegations are legally frivolous and fail to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B). A separate Order of Dismissal shall accompany this Memorandum and Order. Signed by District Judge Jean C. Hamilton on 12/6/12. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
ANTOINE HARRIS,
Plaintiff,
v.
DAVID BLAKE PEARSON, et al.,
Defendants.

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No. 1:12-CV-185-LMB

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Antoine Harris (registration
no. 1036347) for leave to commence this action without payment of the required filing
fee. For the reasons stated below, the Court finds that plaintiff does not have sufficient
funds to pay the entire filing fee, and therefore, the motion will be granted Plaintiff will
not be assessed an initial partial filing fee, because he has been unable to obtain a
certified inmate account statement [Doc. #3].

See 28 U.S.C. § 1915(b)(1).

Furthermore, based upon a review of the complaint, the Court finds that this action
should be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B).
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
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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 Complaint
Plaintiff, an inmate at the Eastern Reception Diagnostic and Correctional Center,
seeks monetary relief in this 42 U.S.C. § 1983 action against attorneys David Blake
Pearson and Malcolm Henry Montgomery. Plaintiff alleges that Montgomery provided
him ineffective assistance of counsel in a state criminal matter by having plaintiff "sign
a paper for a Class C charge but end[ing] up with a B charge." Plaintiff that Pearson
provided him ineffective assistance of counsel in a matter in which plaintiff received
the maximum of "four years" in a child custody case.
Discussion
Having carefully reviewed plaintiff's allegations, the Court will dismiss this
action pursuant to § 1915(e)(2)(B). To state a claim under § 1983, a plaintiff must
establish that a person acting under color of state law committed the acts which form
the basis of the complaint. Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on
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other grounds, Daniels v. Williams, 474 U.S. 327, 328 (1986). The actions of
defendants Pearson and Montgomery in providing legal representation for plaintiff
simply do not constitute action under color of state law for purposes of § 1983. See
Myers v. Vogal, 960 F.2d 750, 750 (8th Cir. 1992)(attorneys, whether appointed or
retained, who represented plaintiff in criminal proceeding did not act under color of
state law and were not subject to suit under § 1983); Polk County v. Dodson, 454 U.S.
312 (1981)(actions of public defender performing traditional functions of attorney do
not constitute action under color of state law); Harkins v. Eldredge, 505 F.2d 802, 803
(8th Cir. 1974)(conduct of counsel, either retained or appointed, in representing client
does not constitute action under color of state law).
Accordingly,
IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in
forma pauperis [Doc. #4] is GRANTED.
IT IS FURTHER ORDERED that the Clerk shall not issue process or cause
process to issue upon the complaint, because the allegations are legally frivolous and
fail to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B).

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A separate Order of Dismissal shall accompany this Memorandum and Order.
Dated this 6th day of December, 2012.

/s/ Jean C. Hamilton
UNITED STATES DISTRICT JUDGE

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