Marsh v. Spielman et al
MEMORANDUM AND ORDER re: 2 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff Demarkas Marsh; motion is GRANTED. IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [ECF No. 2] i s GRANTED. IT IS FURTHER ORDERED that the plaintiff must pay an initial filing fee of $38.00 within thirty (30) days of the date of this Order. Plaintiff is instructed to make his remittance payable to "Clerk, United States District Court,& quot; 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 this action is DISMISSED without prejudice. (Initial Partial Filing Fee due by 2/10/2016.) Signed by District Judge Stephen N. Limbaugh, Jr on 1/11/16. (CSG)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
JOHN C. SPIELMAN, et al.,
No. 1:15CV243 SNLJ
MEMORANDUM AND ORDER
Plaintiff, a prisoner in the Dunklin County Jail, seeks leave to proceed in forma pauperis
in this civil action under 42 U.S.C. § 1983. Having reviewed plaintiff’s financial information,
the Court assesses a partial initial filing fee of $38.00, which is twenty percent of his average
monthly deposit. See 28 U.S.C. § 1915(b). Moreover, this action is dismissed.
Standard of Review
Under 28 U.S.C. § 1915(e), the Court is required to dismiss a complaint filed in forma
pauperis if it is frivolous, malicious, or fails to state a claim upon which relief can be granted.
To state a claim for relief under § 1983, a complaint must plead more than “legal conclusions”
and “[t]hreadbare recitals of the elements of a cause of action [that are] supported by mere
conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
A plaintiff must
demonstrate a plausible claim for relief, which is more than a “mere possibility of misconduct.”
Id. at 679. “A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. at 678. Determining whether a complaint states a plausible claim for relief [is] a
context-specific task that requires the reviewing court to draw on its judicial experience and
common sense. Id. at 679.
On December 4, 2014, police were dispatched to the Dunklin County Juvenile Office
(“Juvenile Office”) for a report of child abuse. Missouri v. Marsh, 14DU-CR01460 (Dunklin
County). Plaintiff alleges that defendant Kimberly Morgan had called the Department of Social
Services (the “Department”), because plaintiff’s child refused to leave with him from school.
Plaintiff’s child told investigators with the Juvenile Office that plaintiff had been beating him
with an extension cord and belt. Id. The investigation revealed several wounds, “some old and
some still scabbed over.” Id. The police arrested plaintiff. Id.
Defendant Jonce Chidister, an assistant prosecuting attorney, charged plaintiff with one
count of felony abuse of a child. Id. Plaintiff pled guilty on March 3, 2015. Id. The Court
sentenced him to two years’ probation. Id.
On September 25, 2015, plaintiff admitted to violating the terms of his probation, and the
court sentenced him to six months in the Dunklin County Jail. Id.
Plaintiff says that defendant Morgan slandered him by reporting the abuse to the
Department. He claims that defendant Judge John C. Spielman convicted him without sufficient
evidence. And he says that defendant Chidister used improper evidence.
The complaint is frivolous as to defendants Spielman and Chidister. See Penn v. United
States, 335 F.3d 786, 789 (8th Cir. 2003) (judges are “entitled to absolute immunity for all
judicial actions that are not taken in a complete absence of all jurisdiction.”); Brodnicki v. City of
Omaha, 75 F.3d 1261, 1266 (8th Cir. 1996) (where “the prosecutor is acting as advocate for the
state in a criminal prosecution,  the prosecutor is entitled to absolute immunity.”).
The complaint is also frivolous against defendant Morgan because reporting child abuse
does not constitute a constitutional violation.
A suit against the Department is, in effect, a suit against the State of Missouri. The State
of Missouri, however, is absolutely immune from liability under § 1983. See Will v. Michigan
Dept. of State Police, 491 U.S. 58, 63 (1989).
Finally, a prisoner may not recover damages in a § 1983 suit where the judgment would
necessarily imply the invalidity of his conviction, continued imprisonment, or sentence unless
the conviction or sentence is reversed, expunged, or called into question by issuance of a writ of
habeas corpus. Heck v. Humphrey, 512 U.S. 477, 486-87 (1994); Schafer v. Moore, 46 F.3d 43,
45 (8th Cir. 1995); Edwards v. Balisok, 520 U.S. 641, 648 (1997) (applying rule in § 1983 suit
seeking declaratory relief). In this case, a finding in favor of plaintiff would imply the invalidity
of his conviction. Therefore, this action fails to state a claim upon which relief can be granted.
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma pauperis [ECF
No. 2] is GRANTED.
IT IS FURTHER ORDERED that the plaintiff must pay an initial filing fee of $38.00
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
IT IS FURTHER ORDERED that this action is DISMISSED without prejudice.
An Order of Dismissal will be filed separately.
Dated this 11th day of January, 2016.
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE
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