Yount v. Newell
MEMORANDUM AND ORDER re: 2 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff Shawn Yount; motion is DENIED. IT IS FURTHER ORDERED that this action is DISMISSED, without prejudice, pursuant to 28 U.S.C. 1915(g). A separate Order of Dismissal shall accompany this Memorandum and Order. Signed by District Judge Jean C. Hamilton on 9/23/15. (CSG)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
DAVID W. NEWELL,
MEMORANDUM AND ORDER
This matter is before the Court on plaintiff=s motion for leave to proceed in
forma pauperis [Doc. #2]. Plaintiff, an inmate at the Moberly Correctional Center,
has filed at least three previous cases that were dismissed as frivolous, malicious, or
for failure to state a claim. See Yount v. Hefner, 1:14-CV-113-SNLJ (E.D. Mo.);
Yount v. Hefner, 1:14-CV-6-SNLJ (E.D. Mo); Yount v. Stoddard County,
1:12-CV-186-LMB. These cases count as “strikes” against plaintiff for purposes of
28 U.S.C. ' 1915(g). See Byrd v. Shannon, 715 F.3d 117, 126 (3d Cir. 2013); Orr v.
Clements, 688 F.3d 463 (8th Cir. 2012); Moore v. Maricopa County Sheriff’s Office,
657 F.3d 890, 893-94 (9th Cir. 2011); Morris v. Petersen, 2015 WL 4776088, *2
(N.D. Cal. 2015).
As such, the Court may not grant plaintiff’s motion to proceed in forma
pauperis unless he was Aunder imminent danger of serious physical injury@ at the
time the complaint was filed. See Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir.
2003) (imminent danger of serious physical injury must exist at the time the
complaint is filed).
Plaintiff brings this action against David Newell, a privately-retained
attorney, for legal malpractice under 42 U.S.C. § 1983. After carefully reviewing
the complaint, the Court finds no allegations indicating that plaintiff was in
imminent danger of serious physical injury when he filed his complaint on or about
September 21, 2015. As a result, the Court will deny the motion for leave to
proceed in forma pauperis and will dismiss this action without prejudice to refiling
as a fully paid complaint.
As additional ground for dismissing this action, the Court notes that even if
plaintiff were granted in forma pauperis status, this action would be dismissed as
legally frivolous under 28 U.S.C. § 1915(e)(2)(b), because attorneys are not state
actors 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); 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).
IT IS HEREBY ORDERED that plaintiff=s motion to proceed in forma
pauperis [Doc. #2] is DENIED.
IT IS FURTHER ORDERED that this action is DISMISSED, without
prejudice, pursuant to 28 U.S.C. ' 1915(g).
A separate Order of Dismissal shall accompany this Memorandum and Order.
Dated this 23rd day of September, 2015.
/s/ Jean C. Hamilton
UNITED STATES DISTRICT JUDGE
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