Givins Jr. v. Burke, Wulff, Flacher, Luder, Briscoe LLP

Filing 7

OPINION MEMORANDUM AND ORDER IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [ECF No. 2] is GRANTED. IT IS FURTHER ORDERED that this action is DISMISSED without prejudice. 2 Signed by District Judge Henry Edward Autrey on 5/4/16. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ABE GIVINS, JR.,
Plaintiff,
v.
BURKE, WULFF, FLATCHER, LUDER,
BRISCOE, LLP,
Defendant.

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No. 4:16CV351 HEA

OPINION, MEMORANDUM AND ORDER
Plaintiff seeks leave to proceed in forma pauperis in this civil action under 42 U.S.C.
§§ 1983, 1985 and state law. The motion is granted. Furthermore, this action is dismissed.
Standard of Review
Under 28 U.S.C. § 1915(e), the Court is required to dismiss a complaint filed in forma
pauperis if it is frivolous, malicious, or fails to state a claim upon which relief can be granted.
To state a claim for relief under § 1983, a complaint must plead more than “legal conclusions”
and “[t]hreadbare recitals of the elements of a cause of action [that are] supported by mere
conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

A plaintiff must

demonstrate a plausible claim for relief, which is more than a “mere possibility of misconduct.”
Id. at 679. “A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. at 678. Determining whether a complaint states a plausible claim for relief [is] a
context-specific task that requires the reviewing court to draw on its judicial experience and
common sense. Id. at 679.

The Complaint
Plaintiff challenges the validity of a state court conviction for felony driving while
intoxicated (DWI). Missouri v. Givins, No. 2100R-01435-01 (St. Louis County). He pled guilty
to the charge on September 8, 2000, and the court sentenced him to five years’ imprisonment.
According to the docket sheet, plaintiff was represented by James Joseph Briscoe, who
presumably is a partner with the law firm named in the caption of the complaint. Plaintiff says
that Briscoe had a conflict of interest because he had been a prosecutor for St. Louis County.
Plaintiff alleges that Briscoe failed to disclose material evidence favorable to his defense, which
resulted in an unknowing guilty plea. Plaintiff claims that his professional licenses were revoked
because of the conviction and that he was not aware of these collateral consequences.
Discussion
Section 1983 confers liability on state actors acting “under color of law” who violate
citizen’s constitutional rights. Plaintiff’s section 1983 claims fail because Briscoe was not a state
actor acting under color of law when he represented plaintiff. Additionally, defendant’s alleged
actions did not violate any rights cognizable under § 1983. Plaintiff’s only challenge to a
conviction for ineffective assistance of counsel lies in habeas relief pursuant to 28 U.S.C. § 2254.
Moreover, a plaintiff may not recover damages in a § 1983 suit where the judgment
would necessarily imply the invalidity of his conviction, continued imprisonment, or sentence
unless the conviction or sentence is reversed, expunged, or called into question by issuance of a
writ of habeas corpus. Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). In this case, plaintiff’s
claims necessarily imply the invalidity of his DWI conviction, and therefore, he is not entitled to
relief.

2

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, 834-39 (1983); Griffin v. Breckenridge, 403 U.S. 88, 102
(1971) (plaintiff must allege these two elements to state ' 1985(3) claim). Nothing in the
complaint indicates that plaintiff is a member of a protected class or that defendant was
motivated by purposeful, class-based discrimination. As a result, plaintiff’s § 1985(3) claim will
be dismissed as legally frivolous.
The remainder of plaintiff’s claims, for legal malpractice and breach of fiduciary duty,
arise under state law and are dismissed.
Finally, the Court has reviewed plaintiff’s motions for leave to amend and finds them to
be frivolous.
Accordingly,
IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [ECF
No. 2] is GRANTED.
IT IS FURTHER ORDERED that this action is DISMISSED without prejudice.
Dated this 4th day of May, 2016

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HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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