Duckworth v. Richardson

Filing 5

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that plaintiffs 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 $1.50 within thirty (30) days of the date o f 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 this action is DISMISSED without prejudice. An Order of Dismissal will be filed separately. Signed by District Judge Audrey G. Fleissig on 01/22/2016. (KCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
JOSEPH HOWARD DUCKWORTH,
Plaintiff,
v.
JENNIFER RICHARDSON,
Defendant.

)
)
)
)
)
)
)
)
)

No. 2:16CV2 DDN

MEMORANDUM AND ORDER
Plaintiff, a prisoner, 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 $1.50, which is twenty percent of his average monthly deposit. See 28 U.S.C.
§ 1915(b). Additionally, 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.
The Complaint
Plaintiff was charged with second degree assault in March 2011. Missouri v. Duckworth,
No. 11RL-CR00025-01 (Ralls County). He pled guilty to the crime on October 4, 2011. Id.
The Court appointed defendant Jennifer Richardson, a public defender, to represent him.
Plaintiff says that Richardson was ineffective because she did not make the proper objections.
He seeks monetary and injunctive relief.
Discussion
The complaint fails to state a claim upon which relief can be granted because “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.” Polk County v. Dodson, 454 U.S. 312, 325
(1981). As a result, this action is dismissed without prejudice.
Moreover, claims of ineffective assistance of counsel are not cognizable in § 1983
proceedings. Such claims must be brought in a petition for writ of habeas corpus under 28
U.S.C. § 2254 after properly exhausting available state remedies.
Accordingly,
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 $1.50
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

2

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.
An Order of Dismissal will be filed separately.
Dated this 22nd day of January, 2016.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE

3