Turner v. Dolan
MEMORANDUM AND ORDER granting re: 2 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff Antonio Turner, IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing feeof $11.97 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 remittanc e is for an original proceeding. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the complaint because the complaint is legally frivolous or fails to state a claim upon which relief can be granted, or both( Initial Partial Filing Fee due by 4/10/2013.) Signed by District Judge Stephen N. Limbaugh, Jr on 3/11/13. (MRS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
JUDY CRADER DOLAN,
No. 1:13CV22 SNLJ
MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff, an inmate at Cape
Girardeau County Jail, 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 will assess an initial partial
filing fee of $11.97. See 28 U.S.C. § 1915(b)(1). Furthermore, based upon a review
of the complaint, the Court finds that the complaint 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
$59.83, and an average monthly balance of $32.00. Plaintiff has insufficient funds
to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing
fee of $11.97, 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 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).
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.
Plaintiff, an inmate at Cape Girardeau County Jail, brings this action pursuant
to 42 U.S.C. § 1983, alleging violations of his civil rights. Named as the sole
defendant in this action was plaintiff’s appointed counsel in his criminal case
currently pending in Missouri State Court, Judy Crader Dolan. Plaintiff complains
that his appointed counsel was ineffective in a number of avenues, namely that she
failed to interview or call key witnesses, object to evidence presented by the state,
investigate the case, make certain arguments or elicit specific testimony.
Plaintiff seeks monetary damages and injunctive relief.
The complaint fails to state a claim upon which relief can be granted against
defendant Crader Dolan because “a public defender [or one acting in the role of 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.”1 Polk
County v. Dodson, 454 U.S. 312, 325 (1981). As a result, this action shall be
dismissed without prejudice.
Plaintiff may pursue these arguments in his post-conviction proceedings, or
perhaps his proceedings for application for writ of habeas corpus, in Missouri
State Court during the relevant time periods.
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma
pauperis [Doc. #2] is GRANTED.
IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee
of $11.97 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 upon the complaint because the complaint is legally frivolous or fails
to state a claim upon which relief can be granted, or both.
An Order of Dismissal will accompany this Memorandum and Order.
Dated this 11th day of March, 2013.
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?