Worthy v. Boyd et al

Filing 4

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiffs motion to proceed in forma pauperis [Doc. #2] is GRANTED. IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $22.45 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 pr oceeding. 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 order of dismissal will be filed separately. Signed by Honorable Carol E. Jackson on 5/30/2012. (KMS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JULIUS WORTHY,
Plaintiffs,
v.
DERRIS BOYD, et al.,
Defendants.

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No. 4:12CV353 CEJ

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff (registration no.
174015), an inmate at Southeast Correctional Center, for leave to commence this
action without payment of the required filing fee. For the reasons stated below, the
Court finds that plaintiff does not have sufficient funds to pay the entire filing fee and
will assess an initial partial filing fee of $22.45. See 28 U.S.C. § 1915(b)(1).
Furthermore, based upon a review of the complaint, the Court finds that the complaint
should be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B).
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 or her 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.
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). 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 period immediately preceding the submission of his
complaint. A review of plaintiff’s account indicates an average monthly deposit of
$112.25, and an average monthly balance of $16.85. Plaintiff has insufficient funds
to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing
fee of $22.45, 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 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 either law or fact.”
Neitzke v. Williams, 490 U.S. 319, 328 (1989). An action is malicious if it is
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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).
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 “contextspecific 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 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.
The Complaint
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Plaintiff brings this action pursuant to 42 U.S.C. § 19831, alleging violations of
his civil rights. Named as defendants are: Derris Boyd (Probation Officer); Geralyn
Ruess (Public Defender); Sarah Schweitzer (Public Defender); Jennifer Szczucinski
(Asst. Circuit Attorney); and John Does 1-3 (Public Defenders).
Plaintiff alleges that in November of 2001 he entered a guilty plea to two
charges of assault in the third degree and he was subsequently placed on two years
“unsupervised” probation. Plaintiff alleges that on August 1, 2005 he was directed by
his parole officer, defendant Boyd, to submit a DNA sample, pursuant to Mo.Rev.Stat.
§ 650.055. Plaintiff claims that when he questioned the need for the DNA sample he
was told by defendant Boyd that everyone in the Missouri correctional system had to
submit a sample for inclusion in the Missouri State Highway Patrol’s database.
Plaintiff claims that the taking of his DNA was an unlawful seizure because he was
not in custody for an offense for which Missouri statutes require that a DNA sample
be taken.

1

Plaintiff states that he is also bringing claims pursuant to 42 U.S.C. § 1981,
1982 & 1985(3) & “related statutes governing conspiracy by state officials acting
under color of state authority to deprive plaintiff of his civil rights as outlined
herein.”
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Plaintiff claims that he was told that the Missouri DNA Database linked his
DNA to seminal fluid on file from a1996 crime. As a result, plaintiff was charged
with forcible rape and robbery, crimes that occurred in January 1996.2 On January 12,
2010, plaintiff entered a plea of guilty to both charges and was sentenced to
consecutive ten-year terms of imprisonment.
Plaintiff asserts that his attorneys, defendants Ruess and Schweitzer, acted in
concert with the prosecutor, defendant Szczucinski, to cajole him into pleading guilty
to the charges. Plaintiff alleges that the his counsel acted “in unison with other state
officials to prevent [plaintiff] from mustering, preserving, and presenting his defense
in a criminal case in St. Louis City.” Plaintiff alleges that defendant Szczucinski
“masterminded the conspiracy” and also falsely “manufactured evidence” by adding
on a gun charge in order to extend the statute of limitations on the rape crime.
Plaintiff seeks compensatory and punitive damages.
Discussion
Section 1983 claims are analogous to personal injury claims and are subject to
Missouri’s five-year statute of limitations. Sulik v. Taney County, Mo., 393 F.3d 765,
766-67 (8th Cir. 2005); Kansas Pub. Emp. Retirement Sys. v. Reimer & Kroger
Assocs., Inc., 61 F.3d 608, 611 (8th Cir. 1995) (in federal question case, where there

2

See State of Missouri v. Worthy, No. 0822-CR07281-01.
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is no federal statute of limitations, the federal court will borrow the forum state
limitations laws, if not inconsistent with federal law or policy); Mo. Rev. Stat. §
516.120(4).
Although courts may have to look to state law to determine the applicable
limitations period, federal law governs when a cause of action under a federal statute
accrues. See, e.g., Wallace v. Kato, 549 U.S. 384, 387-89 (2007); Board of Regents
v. Tomanio, 446 U.S. 478, 484-86 (1980); Nasim v. Warden, Maryland House of
Correction, 64 F.3d 951, 955 (4th Cir. 1995) (accrual of civil rights action governed
by federal law); K.E.S. v. United States, 38 F.3d 1027, 1029 (8th Cir. 1994) (accrual
under Federal Tort Claims Act is a question of federal law); Day v. Moscow, 955
F.2d 807, 813 (2d Cir. 1992) (accrual of § 1983 claim is a matter of federal law).
“Under the traditional rules of accrual . . . the tort cause of action
accrues, and the statute of limitations commences to run, when the
wrongful act or omission results in damages. The cause of action
accrues even though the full extent of the injury is not then known or
predictable.” Were it otherwise, the statute would begin to run only after
a plaintiff became satisfied that he had been harmed enough, placing the
supposed statute of repose in the sole hands of the party seeking relief.
Wallace, 549 U.S. at 391 (quoting 1 C. Corman, Limitation of Actions § 7.4.1, pp.
526-527 (1991).
In Wallace, the Supreme Court held that the statute of limitations on a § 1983
claim seeking damages for false arrest, under the Fourth Amendment, began to run at
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the time the claimant became detained pursuant to the legal process. Wallace, 549
U.S. at 395-96. Although Wallace only directly addressed the accrual of false arrest
claims, its reasoning seems equally applicable to other Fourth Amendment claims,
such as the one for seizure currently before the Court. See, e.g., Hilton v. Whitman,
2008 WL 5272190, *8 (D.N.J. December 16, 2008) (finding that the statute of
limitations began at the time the claimant was arrested because he should have known
at that time that he had a cause of action for false arrest, false imprisonment, illegal
search and seizure and excessive force at that point).
The “seizure” of plaintiff’s DNA occurred in August 2005.3 Plaintiff alleges
that when he was told to submit the DNA sample he questioned the requirement and
complained to his probation officer, defendant Boyd. Thus, it was at that point that
plaintiff knew, or should have known, that he had a cause of action for unlawful
seizure. This is so even though plaintiff may not have known the full extent of his

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Although plaintiff asserts that his DNA was unlawfully “seized,” the statute
under which plaintiff’s DNA was taken allows for biological samples to be taken
following convictions of or pleas of guilty to any felony or any sexual offense, and
also (for persons over seventeen) following arrest for murder and assault offenses,
sexual offenses, child abuse and endangerment offenses, and burglary.
Mo.Rev.Stat. § 650.055 et seq. Plaintiff acknowledges in his complaint that in
November of 2001 he entered a guilty plea to two charges of assault in the third
degree. Thus, it appears that plaintiff was required under § 650.055 to submit the
DNA sample at question in the instant case. See also, Clevenger v. Gartner, 392
F.3d 977 (8th Cir. 2004) (discussing the changes in the DNA profiling system).
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injury or that defendant Boyd’s actions were wrongful. See Oshiver v. Levin,
Fishbein, Sedran & Berman, 38 F.3d 1380, 1386 (3rd Cir. 1994) “A claim accrues in
a federal cause of action as soon as a potential claimant either is aware, or should be
aware, of the existence of and source of an injury . . . not upon awareness that this
injury constitutes a legal wrong.”); see also, Johnson v. Johnson County Comm’n Bd.,
925 1299, 1301 (10th Cir. 1991) (claims arising out of police action, such as search
and seizure, are presumed to have accrued when actions actually occurred). As such,
plaintiff’s claim of unlawful seizure is barred by the five-year statute of limitations
and subject to dismissal under 28 U.S.C. § 1915. See, e.g., Myers v. Vogal, 960 F.2d
750, 751 (8th Cir. 1992) (“Although the statute of limitations is an affirmative
defense, a district court may properly dismiss an in forma pauperis complaint under
28 U.S.C. § 1915[] when it is apparent the statute of limitations has run.”).
Plaintiff has also failed to state a conspiracy claim against defendants. In order
to establish a civil rights conspiracy under 42 U.S.C. § 1985(3), the plaintiff must
prove: (1) the defendants conspired, (2) with the intent to deprive him, either directly
or indirectly, of equal protection of the laws, or equal privileges and immunities under
the laws, (3) an act in furtherance of the conspiracy, and (4) that he was injured or
deprived of exercising any right or privilege of a citizen of the United States. See
Larson v. Miller, 76 F.3d 1446, 1454 (8th Cir.1996). A claim under section 1985(3)
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requires proof of invidious discriminatory intent and a violation of a serious
constitutional right that is protected from official and private encroachment. Bray v.
Alexandria Women's Health Clinic, 506 U.S. 263, 267-68 (1993). The statutory
requirement of intent to deprive of equal protection or equal privileges has been
interpreted to mean “that there must be some racial, or perhaps otherwise class-based,
invidiously discriminatory animus behind the conspirators’ action.” Id. [quoting
Griffin v. Breckenridge, 403 U.S. 88, 102 (1971)].
Plaintiff's conclusory allegations are insufficient to support a conspiracy claim.
See Nelson v. City of McGehee, 876 F.2d 56, 59 (8th Cir. 1989) (allegations of
conspiracy must be pleaded with sufficient specificity and factual support to suggest
defendants had meeting of minds directed toward unconstitutional action). Moreover,
his complaint does not assert the required elements for a claim under § 1985(3)
because it does not include any allegation that a racial or class-based discriminatory
animus lay behind the alleged conspiracy. And, plaintiff's addition of the prosecutor
and five public defenders in the so-called conspiracy against him, through both trial,
appellate and post-conviction appeals processes undermines his conspiracy theory.
See, e.g., Stone v. Baum, 409 F.Supp.2d 1164, 1176 (D.Ariz.2005) (stating that
adding judges, prosecutors, and FBI as co-conspirator for failing to investigate at the
plaintiffs' request “creates a snowballing effect which ironically threatens to destroy
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the conspiracy claim by raising questions of factual frivolousness, which exists when
the facts alleged rise to the level of the irrational, fanciful, fantastic, delusional, or
wholly incredible”). See also, Brodnicki v. City of Omaha, 75 F.3d 1261, 1266 (8th
Cir. 1996) (finding prosecutors absolutely immune from § 1983 liability when “the
prosecutor is acting as advocate for the state in a criminal prosecution”); Polk County
v. Dodson, 454 U.S. 312, 325 (1981) (finding that “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”).
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma
pauperis [Doc. #2] is GRANTED.
IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee
of $22.45 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 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 or fails
to state a claim upon which relief can be granted, or both.
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An order of dismissal will be filed separately.
Dated this 30th day of May, 2012.

CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE

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