Turner v. Crites-Leoni et al

Filing 10

MEMORANDUM AND ORDER re: 2 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff Corey E. Turner, Sr. motion is GRANTED. IT IS FURTHER ORDERED that plaintiff shall pay an initial filing fee of $66.80 with in thirty (30) days of the date of this Order. Plaintiff is instructed to make his remittance payable to "Clerk, United States District Court," and to include upon it: (1) his name; (2) his prison registration number; (3) the case number; a nd (4) that the remittance is for an original proceeding. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue, because the complaint is legally frivolous and fails to state a claim upon which relief can 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 Carol E. Jackson on 2/5/13. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

COREY E. TURNER, SR.,
Plaintiff,
v.
ABBIE CRITES-LEONI, et al.,
Defendants.

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No. 1:12-CV-215-CEJ

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Corey E. Turner, Sr.
(registration no. 7425) 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 and plaintiff will be assessed an initial partial filing fee. 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(b)(1)
Pursuant to 28 U.S.C. § 1915(b)(1), a prisoner bringing a civil action in forma
pauperis is required to pay the full amount of the filing fee. If the prisoner has
insufficient funds in his or her prison account to pay the entire fee, the Court must

assess and, when funds exist, collect an initial partial filing fee of 20 percent of the
greater of (1) the average monthly deposits in the prisoner’s account, or (2) the
average monthly balance in the prisoner’s account for the prior six-month period.
After payment of the initial partial filing fee, the prisoner is required to 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 agency having custody of the prisoner will
forward these monthly payments to the Clerk of Court each time the amount in the
prisoner’s account exceeds $10, until the filing fee is fully paid. Id.
Plaintiff has submitted an affidavit and a certified copy of his prison account
statement for the six-month period immediately preceding the submission of his
complaint. A review of plaintiff’s account indicates an average monthly deposit of
$334.00, and an average monthly balance of $35.44. Plaintiff has insufficient funds
to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing
fee of $66.80, which is 20 percent of plaintiff’s average monthly deposit.
28 U.S.C. § 1915(e)
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court may 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 against a defendant who is
immune from such relief. An action is frivolous if “it lacks an arguable basis in either
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law or in fact.” Neitzke v. Williams, 490 U.S. 319, 328 (1989). 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).
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, 3233 (1992).
The Complaint
Plaintiff, an inmate at the Saint Genevieve County Jail, seeks monetary relief
in this action brought pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown
Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). The named
defendants are Abbie Crites-Leonie ( anAssistant U.S. Attorney), Homer I. Markhart
(Special Agent, U.S. Department of Justice), Bobby Sullivan (Sikeston Department
of Public Safety employee), Patricia J. Koprucki (a court-appointed attorney)1, and
Eric Koehler (Sergeant, Cape Girardeau County Jail).

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The Court takes judicial notice of its records which show that defendant
Koprucki was appointed under the Criminal Justice Act (“CJA”).
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Plaintiff states that he is a defendant in a pending criminal drug action that is
being prosecuted by Crites-Leoni. See United States v. Turner, No. 1:11-CR-103JAR (E.D. Mo.). Plaintiff alleges that in connection with the criminal case, CritesLeoni “unlawfully merged the provisions of one type of warrant with the provisions
of another type.” He claims that Crites-Leoni “unlawfully drafted warrants and Title
III wire intercept applications that contained violations of federal statutes and laws
. . . to compel phone companies to provide [defendant] Markhart and others with
prospective tracking device data . . . pursuant to the Stored Communications Act.”
Plaintiff claims that the Wiretap Act prohibits the inclusion of any information from
a tracking device, and that Crites-Leoni’s actions resulted in the gathering of “an
enormous amount of improperly obtained information” that was presented to the
grand jury, and in turn, has resulted in plaintiff’s false arrest and the invasion of his
privacy. In addition, plaintiff claims that Crites-Leoni filed motions in the criminal
action which contain false information, and she is working “to illegally incarcerate
and prosecute” him. As to the remaining defendants, plaintiff alleges that (1)
Markhart illegally used plaintiff’s phone as a tracking device; (2) Sullivan compelled
phone companies to provide plaintiff’s location and unlawfully track him; (3) Koehler
tampered with boxes of discovery and “wrongfully issued” plaintiff’s discovery to a

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co-defendant in the pending criminal action; and (4) Koprucki tampered with
evidence to assist her client, who is a co-defendant in the criminal case.
Discussion
Because plaintiff does not state the capacity in which any defendant is being
sued, this action will be deemed brought against defendants in their official
capacities. See Egerdahl v. Hibbing Community College, 72 F.3d 615, 619 (8th Cir.
1995)(where a complaint is silent about defendant’s capacity, the court must interpret
the pleading as including official-capacity claims); Nix v. Norman, 879 F.2d 429, 431
(8th Cir. 1989). Suits brought against federal officials in their official capacities are,
in essence, suits against the United States of America. Because the doctrine of
sovereign immunity prevents courts from exercising subject matter jurisdiction over
the United States, lawsuits against officers in their official capacities are typically
barred, as well.2 As such, plaintiff’s claims against Crites-Leoni and Markhart will
be dismissed pursuant to § 1915(e)(2)(B). As an additional ground for dismissing
Crites-Leoni, the Court notes that, as an Assistant U.S. Attorney, she would be
entitled to absolute immunity. A prosecutor is immune from personal liability from
actions related to the performance of his or her public duties, including presenting
2

Plaintiff does not allege, nor does it appear, that the United States has
consented to be held liable for constitutional violations such as those presented in this
action.
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evidence before a grand jury, obtaining criminal complaints and warrants, prosecuting
a case, and other actions undertaken as an advocate for the government. Burns v.
Reed, 500 U.S. 478, 485–92 (1991); Imbler v. Pachtman, 424 U.S. 409, 420–31
(1976).
With regard to defendants Sullivan and Koehler, who are alleged to be state
actors, it is axiomatic that naming a government official in his or her official capacity
is the equivalent of naming the government entity that employs the official. See Will
v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989). To state a claim against
a municipality or a state government official in his official capacity, a plaintiff must
allege that a policy or custom of the government entity is responsible for the alleged
constitutional violation. Monell v. Dep’t of Social Services, 436 U.S. 658, 690-91
(1978). The complaint does not contain any allegations that a policy or custom of a
state government entity was responsible for the alleged violations of plaintiff’s
constitutional rights. As such, the complaint is legally frivolous and fails to state a
claim against defendants Sullivan and Koehler, and the Court will dismiss them
pursuant to § 1915(e)(2)(B).
Last, the Court will dismiss defendant Koprucki. Just as state public defenders
performing lawyers' traditional functions do not act under color of state law for
purposes of a § 1983 action, Polk County v. Dodson, 454 U.S. 312, 325 (1981),
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defense attorneys appointed under the CJA do not act under color of law for purposes
of a Bivens claim. See Tate v. Benson, 2013 WL 164860, slip op. at *2 (D. Del.
2013).
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma
pauperis [Doc. #2] is GRANTED.
IT IS FURTHER ORDERED that plaintiff shall pay an initial filing fee of
$66.80 within thirty (30) days of the date of this Order. Plaintiff is instructed to make
his remittance payable to “Clerk, United States District Court,” and to include upon
it: (1) his name; (2) his prison registration number; (3) the case number; and (4) that
the remittance is for an original proceeding.
IT IS FURTHER ORDERED that the Clerk shall not issue process or cause
process to issue, because the complaint is legally frivolous and fails to state a claim
upon which relief can be granted. See 28 U.S.C. § 1915(e)(2)(B).

A sepa r a te

Order of Dismissal shall accompany this Memorandum and Order.
Dated this 5th day of February, 2013.

UNITED STATES DISTRICT JUDGE

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