Johnson v. Barnhart et al

Filing 5

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis is GRANTED and an initial partial filing fee will not be assessed. [Doc. 2 ] 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 can be granted. See 28 U.S.C. 1915(e)(2)(B). A separate Order of Dismissal shall accompany this Memorandum and Order. Signed by District Judge Charles A. Shaw on 4/10/15. (KXS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
SEAN M. JOHNSON,

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Plaintiff,
v.
ERIC V. BARNHART, et al.,
Defendants.

No. 4:15-CV-286 CAS

MEMORANDUM AND ORDER
This matter is before the Court on the motion of Sean M. Johnson for leave to commence
this action without payment of the required filing fee. Plaintiff states that he is unable to obtain
a certified inmate account statement, and he has submitted a copy of his commissary receipt;
however, this receipt cannot be used to calculate plaintiff’s initial partial filing fee.

Under these

circumstances, the Court will grant plaintiff’s motion and will not assess an initial partial filing
fee.

In addition, and for the reasons set forth below, the Court will dismiss this action as legally

frivolous.
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 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 Ait lacks an arguable basis in either law or in fact.@ Neitzke v. Williams,
490 U.S. 319, 328 (1989). 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).

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, 32-33 (1992).
The Complaint
Plaintiff, an inmate at the Potosi Correctional Center, seeks monetary relief in this action
for the violation of his constitutional rights under 42 U.S.C. ' 1983.

Named as defendants are

Eric Barnhart (attorney), Rick Scott, and The Law Office of Eric V. Barnhart, LLC.
alleges that Eric Barnhart was his attorney in a state criminal matter.

Plaintiff

Plaintiff claims that

Barnhart committed “malpractice for improper treatment and negligent treatment received.” In
addition, he claims that he was “supposed to receive a psch [sic] exam from a man Rick Scott,”
but he was lied to and the exam never took place.
Discussion
Having carefully reviewed plaintiff=s allegations, the Court finds that the complaint is
legally frivolous as to all defendants.

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). The actions of defendant Eric Barnhart and his law firm in
providing legal representation for plaintiff does not constitute action under color of state law for
purposes of ' 1983.

See 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
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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).

Similarly, plaintiff does not allege, and there is no indication, that

Rick Scott is a state actor for purposes of ' 1983, and therefore, this action will be dismissed
pursuant to 28 U.S.C. ' 1915(e)(2)(B).
Accordingly,
IT IS HEREBY ORDERED that plaintiff=s motion to proceed in forma pauperis is
GRANTED and an initial partial filing fee will not be assessed.

[Doc. 2]

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 can be granted.

See 28 U.S.C. ' 1915(e)(2)(B).

A separate Order of Dismissal shall accompany this Memorandum and Order.

CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE

Dated this 10th day of April, 2015.

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