Strickland v. Missouri State Public Defender System et al

Filing 5

MEMORANDUM AND ORDER. (see order for details) 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 shall pay an initial filing fee of $1.75 within thi rty (30) days of the date of this Order. 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 accompany this Memorandum and Order. Signed by District Judge E. Richard Webber on 03/13/2014. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CARLTON STRICKLAND,
Plaintiff,
v.
MISSOURI STATE PUBLIC
DEFENDER SYSTEM, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

No. 4:13CV02232 TCM

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff (registration no.
190776), 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 $1.75. 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
$8.75, and an average monthly balance of $0. Plaintiff has insufficient funds to pay the
entire filing fee. Accordingly, the Court will assess an initial partial filing fee of $1.75,
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.”
-2-

Neitzke v. Williams, 490 U.S. 319, 328 (1989). 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).
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 “context-specific
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.
-3-

The Complaint
Plaintiff brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his
civil rights. Named as defendants are the Missouri State Public Defender System,
Cathy Kelly, Director of the State Public Defender System and Ellen Blau, Division
Director at the Missouri Public Defender System.
Plaintiff asserts generally that there has been wrongdoing by the Missouri State
Public Defender System. He states that he “seeks justice under the 6th and 14th
Amendments and damages that the public defender has cause and all other relief.”
Plaintiff requests $175 million dollars in monetary relief.1
Discussion
Plaintiff’s complaint is completely lacking in any factual assertions whatsoever,
let alone a link between said factual assertions and the alleged defendants in this action.
“Liability under § 1983 requires a causal link to, and direct responsibility for, the
alleged deprivation of rights.” Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir.
1

The plaintiff requests that the Court take judicial notice of a “class action
complaint” filed in a prior case in this Court in which he was a “party.” He asks that
the Court incorporate the allegations asserted in the joint complaint filed in the prior
case into his present complaint. See LeBon v. Missouri State Public Defender
System, 4:13CV1834 SPM (E.D. Mo.). The Court declines to do so, as plaintiff
was explicitly told in that action that he could not proceed under a class action
theory and would have to file an entirely new complaint in a new action. See
Docket No. 11 in that case. Thus, for the purposes of § 1915 review, the only
complaint this Court will review will be the one filed by plaintiff in this case.
-4-

1990); see also 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). In the instant action, plaintiff has not set forth any facts indicating that any of
the named defendants were directly involved in or personally responsible for the
alleged violations of his constitutional rights. As a result, the complaint fails to state
a claim upon which relief can be granted.
Moreover, to the extent that the complaint could be said to include any facts
whatsoever, the complaint fails to state a claim upon which relief can be granted against
defendants 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 must be dismissed.
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 shall pay an initial filing fee of
$1.75 within thirty (30) days of the date of this Order. Plaintiff is instructed to make
-5-

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.
An Order of Dismissal will accompany this Memorandum and Order.
So Ordered this 13th day of March, 2014.

_______________________________________
E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

-6-