Robinson v. Shaughnessy
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 $19.54 within thirty (30) days of the d ate 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 or iginal proceeding. IT IS FURTHER ORDERED that plaintiffs motion for stay to put law suits on hold until release [Doc. 3] is DENIED as moot. An Order of Dismissal will accompany this Memorandum and Order.(Response to Court due by 4/8/2013.) Signed by District Judge Audrey G. Fleissig on 3/8/2013. (KSM)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
LARRY D. ROBINSON, SR.,
RYAN S. SHAUGHNESSY,
No. 4:13CV167 AGF
MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Larry Robinson, Sr.,
(registration no. 1027551), an inmate at Boonville 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 $19.54. 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
$97.69, and an average monthly balance of $13.79. Plaintiff has insufficient funds
to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing
fee of $19.54, 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); Denton v. Hernandez, 504 U.S.
25, 31 (1992). 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). A complaint fails to state a claim if it does not plead “enough facts
to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007).
Plaintiff brings this action under 42 U.S.C. § 1983 for alleged violations of his
constitutional rights. Defendant Ryan Shaughnessy was plaintiff’s retained attorney
in 2003. Plaintiff says he hired defendant to represent him in a wrongful eviction
action. Plaintiff claims defendant violated his civil rights by failing to adhere to the
rules of professional responsibility that govern attorney conduct. Plaintiff says that
defendant deceived him, betrayed him, and failed to protect his rights.
To state a claim under § 1983, a plaintiff must establish that a person acting
under color of state law committed the acts which form the basis of the complaint.
Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds, Daniels v.
Williams, 474 U.S. 327, 328 (1986). Mr. Shaughnessy was not alleged to be
employed by the State or other government agency at the time plaintiff retained him.
As a result, he was not acting under color of law, and plaintiff has not stated a prima
facie case under § 1983. The case is therefore frivolous and must be dismissed under
28 U.S.C. § 1915(e).
Additionally, while “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.” Myers v. Vogal, 960
F.2d 750, 751 (8th Cir. 1992). 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); Mo. Rev. Stat. § 516.120(4). In
this action, the statute of limitations expired in 2008. As a result, the Court will
alternatively dismiss this action as untimely.
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 $19.54 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 plaintiff’s motion for stay to put law suits
on hold until release [Doc. 3] is DENIED as moot.
An Order of Dismissal will accompany this Memorandum and Order.
Dated this 8th day of March, 2013.
Audrey G. Fleissig
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
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