Cole v. State of Missouri PNP Office et al

Filing 5

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in forma pauperis [Doc. # 2 ] is GRANTED. IT IS FURTHER ORDERED that plaintiff shall pay an initial filing fee of $4.29 within thirty (30) days of t he 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 fo r an original proceeding. 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 Catherine D. Perry on April 16, 2014. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
WILLIAM K. COLE,

)
)
Plaintiff,
)
)
v.
)
)
STATE OF MISSOURI PNP OFFICE, )
et al.,
)
)
Defendants.
)

No. 2:14-CV-26-CDP

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of William K. Cole
(registration no. 1002523) for leave to commence this action without payment of the
required filing fee. For the reasons stated below, the Court will grant the motion
and assess plaintiff an initial partial filing fee of $4.29. See 28 U.S.C. ' 1915(b)(1).
Furthermore, based upon a review of the complaint, the Court will dismiss this
action 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
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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
Aenough 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 may exercise its

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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 Jefferson City Correctional Center, seeks monetary
relief in this 42 U.S.C. ' 1983 action against defendants State of Missouri PNP
Office, Vandalia Police Department, CI Ammie, Vandalia U.S. Cellular Records
Office, Missouri PNP Work, Charles Stevenson (plaintiff's parole officer),
Unknown Mickal (a Vandalia police officer), Unknown King (a Vandalia police
officer), and City of Vandalia.
Liberally construing the complaint, plaintiff is alleging that he received
ineffective assistance of counsel1 in relation to a state-court criminal case in which
he was accused of stalking and making death-threatening telephone calls to a woman
named "A. Norvell." More specifically, plaintiff alleges that his attorney was
biased and prejudiced, allowed excessive bail, and took advantage of plaintiff's
Plaintiff does not identify the name of the attorney who allegedly rendered
ineffective assistance.
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inability to comprehend "the ramifications of pleading to the stigmatization of a
stalker [and] instead abused [his] disability by not defending [him] through proper
investigations." Plaintiff alleges that his "plea of guilty was involuntary as a result
of plea counsel's strategy to induce the same." In addition, plaintiff summarily
alleges that the Vandalia Police Department and U.S. Cellular Records Office "lie[d]
on [him]."
Discussion
To state a claim under § 1983, a plaintiff must allege that (1) the defendant
acted under color of state law, and (2) the defendant's alleged conduct deprived the
plaintiff of a constitutionally-protected federal right. Schmidt v. City of Bella Villa,
557 F.3d 564, 571 (8th Cir. 2009). In the instant case, plaintiff has failed to allege
that any of the named defendants personally participated in the violation of his
constitutional rights. See Jeffers v. Gomez, 267 F.3d 895, 915 (9th Cir. 2001)
(liability under § 1983 arises only upon a showing of personal participation by
defendant); Ellis v. Norris, 179 F.3d 1078, 1079 (8th Cir. 1999) (§ 1983 claimant
must allege facts supporting individual defendant=s personal involvement or
responsibility for unconstitutional action); Madewell v. Roberts, 909 F.2d 1203,
1208 (8th Cir. 1990) (liability under § 1983 requires a causal link to, and direct
responsibility for, the alleged deprivation of rights); Martin v. Sargent, 780 F.2d
1334, 1338 (8th Cir. 1985) (claim not cognizable under § 1983 where plaintiff fails

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to allege defendant was personally involved in or directly responsible for incidents
that injured plaintiff). Because plaintiff has not set forth any facts indicating that
the defendants in this action were directly involved in or personally responsible for
the violation of his constitutional rights, the Court will dismiss this action as legally
frivolous.
As additional grounds for dismissing this action, the Court notes that
attorneys, whether appointed or retained, who represent a plaintiff in a criminal
proceeding do not act under color of state law and are not subject to suit under §
1983. See Myers v. Vogal, 960 F.2d 750, 750 (8th Cir. 1992); see also 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).
In addition, police departments, such as the Vandalia Police Department, are
not suable entities under ' 1983. See Ketchum v. City of West Memphis, Ark., 974
F.2d 81, 82 (8th Cir. 1992); see also De La Garza v. Kandiyohi Cnty. Jail, 2001 WL
987542, at *1 (8th Cir. 2001) (sheriff's departments and police departments are not
usually considered legal entities subject to suit under § 1983).
Last, although a municipality, such as the City of Vandalia, is not entitled to
absolute immunity in § 1983 actions, it cannot be held liable under a respondeat

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superior theory. See Monell v. Department of Social Services, 436 U.S. 658, 691
(1978). Municipal liability cannot be imposed absent an allegation that unlawful
actions were taken pursuant to a municipality's policy or custom. Id. at 694. For
these reasons, the Court will dismiss this action pursuant to ' 1915(e)(2)(B).
Accordingly,
IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in
forma pauperis [Doc. #2] is GRANTED.
IT IS FURTHER ORDERED that plaintiff shall pay an initial filing fee of
$4.29 within thirty (30) days of the date of this Order. Plaintiff is instructed to
make his remittance payable to AClerk, 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 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.
Dated this 16th day of April, 2014.
__________________________________
UNITED STATES DISTRICT JUDGE

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