Jones v. Milligan et al

Filing 10

MEMORANDUM AND ORDER re: 2 MOTION for Leave to Proceed in forma pauperis filed by Plaintiff Rafael A. Jones is GRANTED. IT IS FURTHER ORDERED that all other pending motions are DENIED. 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 appropriate Order of Dismissal shall accompany this Memorandum and Order. Signed by Honorable E. Richard Webber on July 8, 2009. (MCB)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION RAFAEL JONES, Plaintiff, v. ERIN MILLIGAN, et al., Defendants. ) ) ) ) ) ) ) ) ) No. 4:09CV00930 MLM MEMORANDUM AND ORDER This matter is before the Court upon the motion of Rafael Jones for leave to commence this action without prepayment of the filing fee pursuant to 28 U.S.C. 1915. Upon consideration of the financial information provided with the motion, the Court finds that plaintiff is financially unable to pay any portion of the filing fee. As a result, plaintiff will be granted leave to proceed in forma pauperis pursuant to 28 U.S.C. 1915. Additionally, the Court has reviewed the complaint and will dismiss it 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 may 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 against a defendant who is immune from such relief. An action is frivolous if "it lacks an arguable basis in either law or in fact." Neitzke v. Williams, 490 U.S. 319, 328 (1989). An action fails to state a claim upon which relief can be granted if does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2007). 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, 32-33 (1992); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The Complaint Plaintiff brings this action under 42 U.S.C. 1983. Named as defendants are Erin Milligan (Public Defender), Cynthia Colpan (Prosecutor), and Dennis Schaumann (Circuit Judge). Plaintiff alleges that defendants are responsible for his incarceration pursuant to an uncertified indictment. Plaintiff seeks monetary and injunctive relief. Discussion The complaint fails to state a claim upon which relief can be granted as to defendant Milligan 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). -2- The complaint is legally frivolous as to defendant Colpan because where "the prosecutor is acting as advocate for the state in a criminal prosecution, [] the prosecutor is entitled to absolute immunity." Brodnicki v. City of Omaha, 75 F.3d 1261, 1266 (8th Cir. 1996). The complaint is legally frivolous as to defendant Schaumann because judges are "entitled to absolute immunity for all judicial actions that are not `taken in a complete absence of all jurisdiction.'" Penn v. United States, 335 F.3d 786, 789 (8th Cir. 2003) (quoting Mireles v. Waco, 502 U.S. 9, 11-12 (1991)). Accordingly, IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [Doc. #2] is GRANTED. IT IS FURTHER ORDERED that all other pending motions are DENIED. 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. -3- An appropriate Order of Dismissal shall accompany this Memorandum and Order. So Ordered this 8th Day of July, 2009. E. RICHARD WEBBER UNITED STATES DISTRICT JUDGE -4-

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