Vail v. 22nd Judicial Circuit Court of Missouri et al

Filing 7

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 partial filing fee of $8.67 within thirty (30) days from 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 r emittance 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 complaint is legally frivolous and fails to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B). IT IS FURTHER ORDERED that plaintiff's motion for appointment of counsel [Doc. # 3 ] is DENIED as moot. A separate order of dismissal shall accompany this memorandum and order. Signed by Honorable Audrey G. Fleissig on 5/12/11. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ARLANDO VAIL, SR.,
Plaintiff,
v.
22ND JUDICIAL CIRCUIT COURT OF
MISSOURI, et al.,
Defendants.

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No. 4:11-CV-255-AGF

MEMORANDUM AND ORDER
This matter is before the Court upon the application of
Arlando Vail, Sr. (registration no. 56444) for leave to commence
this action without payment of the required filing fee.
28 U.S.C. § 1915(b)(1)
Pursuant to 28 U.S.C. § 1915(b)(1), a prisoner bringing
a civil action in forma pauperis is required to pay the full amount
of the filing fee.

If the prisoner has insufficient funds in his

prison account to pay the entire fee, the Court must assess and,
when funds exist, collect an initial partial filing fee of 20
percent of the greater of (1) the average monthly deposits in the
prisoner's account; or (2) the average monthly balance in the
prisoner's account for the prior six-month period.

See 28 U.S.C.

§ 1915(b)(1). After payment of the initial partial filing fee, the
prisoner is required to make monthly payments of 20 percent of the
preceding month's income credited to the prisoner's account.
28 U.S.C. § 1915(b)(2).

See

The agency having custody of the prisoner

will forward these monthly payments to the Clerk of Court each time
the amount in the prisoner's account exceeds $10, until the filing
fee is fully paid.

Id.

Plaintiff has submitted an affidavit and a certified copy
of

his

prison

account

statement

for

the

six-month

immediately preceding the submission of his complaint.

period
See 28

U.S.C. § 1915(a)(1),(2). A review of plaintiff's account statement
indicates an average monthly deposit of $43.33, and an average
monthly account balance of $10.03.

Plaintiff has insufficient

funds to pay the entire filing fee.

Accordingly, the Court will

assess an initial partial filing fee of $8.67, which is 20 percent
of plaintiff's average monthly deposit.
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 at any time 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 either in law or in fact."
Williams, 490 U.S. 319, 325 (1989).

Neitzke v.

An action fails to state a

claim upon which relief can be granted if it 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).

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In reviewing a pro se complaint under § 1915(e)(2)(B),
the

Court

must

construction.

give

the

complaint

the

benefit

of

a

liberal

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 St. Louis City

Justice

Center, seeks monetary relief in this action against defendant 22nd
Judicial Circuit Court of Missouri, Erin Milligan, Donald McCullin,
Mahrya Fulfer, Bryon Sanger, and Steven Ohmer.

Plaintiff briefly

alleges that he was denied his right to a speedy trial, and his
attorney did not prepare for trial.
Having carefully reviewed plaintiff’s allegations, the
Court concludes that the complaint is legally frivolous.
courts are not suable entities under § 1983.

Missouri

See Will v. Michigan

Dept. of State Police, 491 U.S. 58, 63 (1989) (state is not a
“person” under § 1983); Alsbrook v. City of Maumelle, 184 F.3d 999,
1010 (8th Cir. 1999) (en banc) (§ 1983 suit cannot be brought
against state agency), cert. dismissed, 529 U.S. 1001 (2000).
Moreover, there is no indication that the remaining
defendants are state actors, see Parratt v. Taylor, 451 U.S. 527,
535 (1981)(to state § 1983 claim, plaintiff must first establish
that a person acting under color of state law committed actions

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which form the basis of the complaint), overruled on other grounds,
Daniels v. Williams, 474 U.S. 327, 328 (1986), and even if they
were, plaintiff’s allegations fail to state a § 1983 claim or cause
of action against them.

See Martin v. Sargent, 780 F.2d 1334, 1338

(8th Cir. 1985) (claim not cognizable under § 1983 where plaintiff
fails to allege defendant was personally involved in or directly
responsible for incidents that injured plaintiff); Boyd v. Knox, 47
F.3d

966,

968

(8th

Cir.

1995)(respondeat

superior

theory

inapplicable in § 1983 suits); 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); 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).
In accordance with the foregoing,
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
partial filing fee of $8.67 within thirty (30) days from the date
of this order.

Plaintiff is instructed to make his remittance

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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 the Clerk shall not issue
process or cause process to issue upon the complaint, because the
complaint is legally frivolous and fails to state a claim upon
which relief may be granted.
IT

IS

FURTHER

See 28 U.S.C. § 1915(e)(2)(B).

ORDERED

that

plaintiff's

motion

for

appointment of counsel [Doc. #3] is DENIED as moot.
A

separate

order

of

dismissal

shall

accompany

memorandum and order.
Dated this 12th day of May, 2011.

____________________________
UNITED STATES DISTRICT JUDGE

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this