Smith v. Depriest 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 plaintiffs motion to add three party-defendants [Doc. # 5 ] is GRANTED. IT IS FURTH ER ORDERED that plaintiff shall pay an initial partial filing fee of $12.87 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 in clude 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. See 28 U.S.C. § 1915(e)(2)(B). IT IS FURTHER ORDERED that the Clerk shall docket this case as David E. Smith v. Thomas Depriest, Megan Higg ins Julian, David B. Borgmeyer, Joan M.Gilmer, Ryan Dicherber, Robert P. McCullock, and Timothy Miller. IT IS FURTHER ORDERED that all other pending motions are DENIED as moot. A separate Order of Dismissal shall accompany this Memorandum and Order. Signed by District Judge Jean C. Hamilton on 1/27/15. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DAVID E. SMITH,
Plaintiff,
v.
THOMAS DEPRIEST, et al.,
Defendants.

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No. 4:14-CV-2106-NAB

MEMORANDUM AND ORDER
This matter is before the Court on the application of David E. Smith
(registration no. 190898) 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 therefore, the motion will
be granted and plaintiff will be assessed an initial partial filing fee of $12.87. See
28 U.S.C. § 1915(b)(1). Furthermore, based upon a review of the complaint, the
Court finds that this action 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 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. See 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.

See 28 U.S.C. § 1915(a)(1),(2).

A review of plaintiff's account

statement indicates an average monthly deposit of $64.33, and an average monthly
account balance of $5.65. Plaintiff has insufficient funds to pay the entire filing
fee. Accordingly, the Court will assess an initial partial filing fee of $12.87, which
is 20 percent of plaintiff's average monthly balance.
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
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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 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).

An

action fails to state a claim upon which relief can be granted if it does not plead
Aenough facts to state a claim to relief that is plausible on its face.@ Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007).
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
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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 1950-52.
Moreover, 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 (1992).
The Complaint
Plaintiff, an inmate at the Eastern Reception Diagnostic and Correctional
Center, brings this action pursuant to 42 U.S.C. §§ 1983 and 1985. Named as
defendants are: Thomas Depriest (a judge), Megan Higgins Julian (an assistant
prosecuting attorney), David B. Borgmeyer (an assistant public defender), and Joan
M. Gilmer (a court clerk). In addition, plaintiff has filed a motion to add three new
party-defendants: Ryan Dicherber (a police detective), Robert P. McCulloch (St.
Louis County District Attorney), and Timothy Miller (a police officer).

The

motion will be granted.
Plaintiff alleges that on May 17, 2013, he “was processed into the St. Louis
County Justice Center to await trial for alleged crimes of robbery, assault, and
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armed criminal action.” He states that he appeared in Court on July 8, 2013, but
defendant Depriest “refused [plaintiff] the opportunity to address the public
record.” Plaintiff further states that defendants Julian and Depriest have refused to
respond to various motions plaintiff filed on his own behalf in his criminal case.
Plaintiff states that his appointed attorney, defendant Borgmeyer, unlawfully
waived plaintiff’s right to a speedy trial and that Borgmeyer and Depriest
conspired to deprive plaintiff of his right to a speedy trial. Plaintiff generally
alleges that defendant Julian “did neglect to prevent the deprivation of [plaintiff’s]
rights.” In addition, plaintiff summarily claims that defendant Dicherber “did in
fact commit perjury in St. Louis County Court and public record,” and that plaintiff
“did prove in open court . . . that Ryan Dicherber is a liar.” Plaintiff alleges that
Dicherber, Julian, and Depriest “did conspire too [sic] let a perjured person too
[sic] testify in a jury trial in order too [sic] obtain a guilty verdict.” Plaintiff further
alleges that defendant McCulloch is responsible for the acts of defendant Julian
and that defendant Miller “did conspire too [sic] give false statement on a report
used to obtain a warrant for felony crimes.”
Discussion
Having carefully reviewed plaintiff's allegations, the Court concludes that
the complaint is legally frivolous. Plaintiff’s allegations do not rise to the level of
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a constitutional violation and fail to state a claim or cause of action against any of
the named defendants. More specifically, judges are immune from suit under §
1983. Mireles v. Waco, 502 U.S. 9, 11 (1991) (“Judicial immunity is an immunity
from suit, not just from ultimate assessment of damages.”); see also Robinson v.
Freeze, 15 F.3d 107, 108 (8th Cir. 1994) (“Judges performing judicial functions
enjoy absolute immunity from § 1983 liability.”). “Court clerks have absolute
quasi-judicial immunity from damages for civil rights violations when they
perform tasks that are an integral part of the judicial process unless the clerks acted
in the clear absence of all jurisdiction.” Boyer v. County of Washington, 971 F.2d
100, 101 (8th Cir. 1992) (internal quotation marks and citations omitted). See also
Maness v. District of Logan County, 495 F.3d 943 (8th Cir. 2007) (clerks
absolutely immune for acts that may be seen as discretionary or for acts taken at
the direction of a judge or according to court rule). Similarly, when "a prosecutor
is acting within the scope of his proper prosecutorial capacity, these actions are
cloaked with the same immunity granted to judges." Barnes v. Dorsey, 480 F.2d
1057, 1060 (8th Cir. 1973); Wilhelm v. Turner, 431 F.2d 177, 182-83 (8th Cir.
1981); cf. Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976) (prosecutor absolutely
immune from suit for damages under § 1983 for alleged violations committed in
"initiating a prosecution and in presenting the state's case"); Myers v. Morris, 810

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F.2d 1437, 1446-48 (8th Cir. 1987) (immunity extends to allegations of vindictive
prosecution). Public defenders performing lawyers' traditional functions do not act
under color of state law for purposes of § 1983. Polk County v. Dodson, 454 U.S.
312, 325 (1981). The Court also notes that supervisors cannot be held vicariously
liable under ' 1983 for the actions of a subordinate. See Ashcroft v. Iqbal, 129 S.
Ct. 1937, 1948 (2009); see also Madewell v. Roberts, 909 F.2d 1203, 1208 (8th
Cir. 1990) (liability under ' 1983 requires a causal link to, and direct responsibility
for, the alleged deprivation of rights); 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 addition, plaintiff’s conclusory allegations are simply not entitled to the
assumption of truth. See Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (legal
conclusions and threadbare recitals of the elements of a cause of action that are
supported by mere conclusory statements are not entitled to the assumption of
truth). Moreover, to properly plead a claim for civil conspiracy under § 1983, a
plaintiff must include factual allegations showing a “meeting of the minds”
concerning unconstitutional conduct; although an express agreement between the
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purported conspirators need not be alleged, there must be something more than the
summary allegation of a conspiracy. See Mershon v. Beasely, 994 F.2d 449, 451
(8th Cir. 1993).

Plaintiff's summary allegations are insufficient to support a

conspiracy claim.
As additional grounds for dismissing this action, the Court notes that
plaintiff is suing defendants in their official capacities. See Egerdahl v. Hibbing
Community College, 72 F.3d 615, 619 (8th Cir. 1995) (where a complaint is silent
about defendant=s capacity, Court must interpret the complaint as including only
official-capacity claims); Nix v. Norman, 879 F.2d 429, 431 (8th Cir. 1989).
Naming a government official in his or her official capacity is the equivalent of
naming the government entity that employs the official, in this case the State of
Missouri and St. Louis County. See Will v. Michigan Dep=t of State Police, 491
U.S. 58, 71 (1989). A[N]either a State nor its officials acting in their official
capacity are >persons= under ' 1983.@ Id. Moreover, to state a claim against a
municipality or a government official in his official capacity, a plaintiff must allege
that a policy or custom of the government entity is responsible for the alleged
constitutional violation. Monell v. Dep=t of Social Services, 436 U.S. 658, 690-91
(1978). The instant complaint does not contain any allegations that a policy or
custom of a government entity was responsible for the alleged violations of

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plaintiff=s constitutional rights. As a result, the complaint is legally frivolous and
fails to state a claim upon which relief can be granted.
Last, the Court will also dismiss plaintiff’s ' 1985 claims. Title 42 U.S.C. '
1985 concerns conspiracies to interfere with civil rights. Although plaintiff does
not specify under which subsection of ' 1985 he is proceeding, the Court will
liberally construe the allegations under ' 1985(3), which provides in pertinent part:
If two or more persons . . . conspire . . . for the purposes
of depriving, either directly or indirectly, any person or
class of persons of the equal protection of the laws, or of
equal privileges and immunities under the laws . . . the
party so injured or deprived may have an action for the
recovery of damages occasioned by such injury or
deprivation, against any one or more of the conspirators.
Thus, to state a claim under ' 1985(3), a plaintiff must establish that (1) he is
a member of a class suffering from invidious discrimination; and (2) defendants=
actions were motivated by racial animus or some other type of class-based
discrimination. United Bhd. of Carpenters, Local 610 v. Scott, 463 U.S. 825, 83439 (1983); Griffin v. Breckenridge, 403 U.S. 88, 102-03 (1971) (plaintiff must
allege these two elements to state ' 1985(3) claim). In the instant action, nothing
in the complaint indicates that plaintiff is a member of a protected class or that
defendants were motivated by purposeful discrimination. As such, plaintiff=s '
1985(3) claims will also be dismissed as legally frivolous.
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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’s motion to add three partydefendants [Doc. #5] is GRANTED.
IT IS FURTHER ORDERED that plaintiff shall pay an initial partial filing
fee of $12.87 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 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. See 28
U.S.C. § 1915(e)(2)(B).
IT IS FURTHER ORDERED that the Clerk shall docket this case as David
E. Smith v. Thomas Depriest, Megan Higgins Julian, David B. Borgmeyer, Joan
M.Gilmer, Ryan Dicherber, Robert P. McCullock, and Timothy Miller.
IT IS FURTHER ORDERED that all other pending motions are DENIED
as moot.

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A separate Order of Dismissal shall accompany this Memorandum and
Order.
Dated this 27th day of January, 2015.

/s/ Jean C. Hamilton
UNITED STATES DISTRICT JUDGE

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