Rudin v. State of Missouri et al

Filing 4

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 the plaintiff shall have thirty (30) days from the date of this Memorandum and Order in which to su bmit his initial partial filing fee of $9.07. 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) th at the remittance is for an original proceeding. IT IS FURTHER ORDERED that this action is DISMISSED without prejudice. IT IS HEREBY CERTIFIED that an appeal from this dismissal would not be taken in good faith.An Order of Dismissal will accompany this Memorandum and Order. 2 Signed by District Judge Jean C. Hamilton on 10/12/17. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
GREGORY RUDIN,

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Plaintiff,
v.
STATE OF MISSOURI, et al.,
Defendants.

No. 4:17-CV-2389 JCH

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Gregory Rudin (registration no.
500843), an inmate at Algoa 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 $9.07. 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

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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 $45.36. Plaintiff has insufficient
funds to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee
of $9.07, 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 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 “it lacks an arguable basis in either law or in fact.” Neitzke v. Williams,
490 U.S. 319, 328 (1989). An action is malicious when it is undertaken for the purpose of
harassing litigants 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
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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 proffered conclusion is the
most plausible or whether it is more likely that no misconduct occurred. Id. at 1950, 1951-52.
The Complaint
Plaintiff brings this action pursuant to 42 U.S.C. § 1983.

Named as defendants are the

State of Missouri, Judge David Lee Vincent, III, Prosecuting Attorneys Edward McSweeney and
Richard Harper, and Missouri Public Defenders Warren Popp and D. Mueller.
defendants in their official and individual capacities.

Plaintiff sues all

Plaintiffs’ allegations arise out of his

Missouri criminal proceedings for stealing.
Briefly, plaintiff alleges that Prosecuting Attorney McSweeney charged him with a crime
and “gave [him] a five year felony sentence for a class A misdemeanor.”

Compl. at ¶ 7.

He

alleges Judge Vincent placed him on probation, and later revoked his probation and sentenced
him to five years imprisonment.
successfully defend him.
excessive sentence.

He states Missouri State Public Defender Popp did not

Prosecutor Harper advocated revoking his probation and gave him an

Finally, plaintiff states that Missouri State Public Defender Mueller

advised him to take the sentence, which plaintiff alleges was excessive. Plaintiff states that the
actions of the various defendants deprived him of his right to due process, equal protection of the
law, and deprived him of life, liberty, and property.

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As relief, plaintiff seeks monetary damages in the amount of $100,000 from each state
actor, $100,000 for constitutional violations, and $700 per day for every day he spent in jail more
than the maximum punishment.1
Discussion
None of plaintiff’s allegations amount to constitutional violations for which plaintiff can
seek relief in this 42 U.S.C. § 1983 action.

The Court will address the claims against each of

the defendants or categories of defendants separately.
Claims Against State of Missouri
Plaintiff’s claims against the State of Missouri will be dismissed because the State of
Missouri is absolutely immune from liability under § 1983. See Will v. Michigan Dept. of State
Police, 491 U.S. 58, 63 (1989). “[N]either a State nor its officials acting in their official capacity
are ‘persons’ under § 1983.” Id. As a result, the complaint is frivolous against the State of
Missouri.
Claims Against Judge Vincent
Absolute judicial immunity protects a judge from “the general costs of subjecting
officials to the risks of trial [to avoid] . . . distraction of officials from the governmental duties,
inhibition of discretionary action, and deterrence of able people from public service.” Mitchell
v. Forsyth, 472 U.S. 511, 526 (1985).

It shields a judge “from suit rather than a mere defense to

liability.” Id.
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Plaintiff does not seek to expunge or vacate his conviction, nor does he seek release from
confinement or any other form of relief that would tend to indicate an intent to proceed under 28
U.S.C. § 2254. There is therefore no basis to construe the instant case as brought pursuant to §
2254. The Court also notes that plaintiff filed this § 1983 action while his motion for
post-conviction relief was pending in the trial court. See Missouri v. Rudin, No.
13SL-CR00437-01 (21st Cir. Ct. filed Jun. 26, 2017).
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To determine whether the doctrine of absolute immunity applies, courts employ a
two-part test.
judicial.

Childs v. Reynolds, 777 F.2d 1305, 1306 (8th Cir. 1985).

First an act must be

Liles v. Reagan, 804 F.2d 493, 495 (8th Cir. 1986). An act is “judicial” if it “is a

function normally performed by a judge, and to the expectations of the parties, i.e., whether they
dealt with the judge in his judicial capacity.”

Mireles v. Waco, 502 U.S. 9, 12 (1991).

Second, the judge must not have acted in the clear absence of all jurisdiction. Liles, 804 F.2d at
495.

The scope of a judge’s jurisdiction is construed broadly where the issue is the immunity of

the judge. Duty v. City of Springdale, Ark., 42 F.3d 460, 463 (8th Cir. 1994) (per curiam).

A

judge is immune from liability “if he had jurisdiction over the subject matter and if he acted in
his judicial capacity.” Billingsley v. Kyser, 691 F.2d 388, 389 (8th Cir. 1982).
In this case, plaintiff alleges Judge Vincent violated his constitutional rights when he
sentenced plaintiff to a five year felony sentence for a class A misdemeanor statute. “[T]his
manifest injustice is plain error and it denied me the right to due process of law and equal
protection of the law depriving me of life, liberty, and property.”

Compl. at ¶ 8.

Plaintiff also

alleges Judge Vincent sentenced him twice for the same crime, which he states is another
violation of due process and equal protection of the law. Id. at ¶ 11.
The doctrine of absolute judicial immunity bars plaintiff’s claims against Judge Vincent.
First, Judge Vincent’s sentencing of plaintiff at his initial sentencing and again at his probation
revocation hearing were judicial acts. These are functions performed by a judge and within the
expectation of the parties.

Whether Judge Vincent “was right or wrong in his ruling, he was

acting within his judicial authority in making his decision.” Conrad v. Wangelin, 441 F. Supp.
345 (E.D. Mo. 1977). Second, Judge Vincent did not act in the absence of jurisdiction.

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Judge

Vincent, acting as an Circuit Judge in the 21st Circuit Court in St. Louis County, took judicial
action pursuant to that court’s jurisdiction granted to it by the Missouri Constitution. See Mo.
Const. art V, § 17.
Because Judge Vincent acted within his judicial capacity and within his court’s proper
jurisdiction, he is granted absolute immunity from civil suit as to plaintiff’s claims against him.
As such, plaintiff’s claims against Judge Vincent are frivolous, fail to state a claim upon which
relief can be granted, and seek relief from a defendant who is immune.
Claims Against the Prosecuting Attorneys
Just as absolute immunity protects judicial officers, absolute immunity also protects
prosecutors against claims arising from their initiation of a prosecution and presenting a criminal
case.

Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976) (holding that prosecutors are absolutely

immune from civil rights claims based on actions taken while initiating and pursuing a criminal
prosecution); see also Brodnicki v. City of Omaha, 75 F.3d 1261, 1266 (8th Cir. 1996) (“Absolute
immunity covers prosecutorial functions such as the initiation and pursuit of a criminal
prosecution, the presentation of the state’s case at trial, and other conduct that is intimately
associated with the judicial process”); Sample v. City of Woodbury, 836 F.3d 913, 916 (8th Cir.
2016) (same).
Here, Prosecutors McSweeney and Harper’s allegedly unconstitutional conduct falls
within the scope of initiating and pursuing a criminal prosecution. They are therefore immune
from suit.

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Claims Against the Missouri State Public Defenders
A § 1983 claim must allege that a defendant, acting under color of state law, deprived the
plaintiff of rights, privileges, or immunities secured by the Constitution and the laws of the
United States. 42 U.S.C. § 1983; Neitzke, 490 U.S. at 325. Generally, a public defender does
not act under color of state law while representing a defendant in a criminal proceeding. Polk
County v. Dodson, 454 U.S. 312, 324-25 (1981) (“[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.”)

Plaintiff’s allegations against public defenders Warren Popp and D.

Mueller are based on their counsel to defendant in his criminal proceedings, and therefore the
complaint against these defendants must be dismissed.
As an alternate basis for dismissal, the Court notes that plaintiff’s civil rights action for
money damages would call into question his criminal conviction, which subjects the case to
dismissal pursuant to Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). Heck provides that a
prisoner cannot bring a civil rights action for money damages that would effectively “call into
question the lawfulness of [his] conviction or confinement.”

A prisoner 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.

Id.; see also Edwards

v. Balisok, 520 U.S. 641, 648 (1997) (applying rule in § 1983 suit seeking declaratory relief);
Schafer v. Moore, 46 F.3d 43, 45 (8th Cir. 1995).
Finally, because plaintiff is very clear about the claims he wishes to bring and the
defendants he wishes to sue, allowing him leave to submit an amended complaint would be

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futile.

For the foregoing reasons, plaintiff’s case will therefore 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 [ECF
No. 2] is GRANTED.
IT IS FURTHER ORDERED that the plaintiff shall have thirty (30) days from the date
of this Memorandum and Order in which to submit his initial partial filing fee of $9.07.
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 this action is DISMISSED without prejudice.
IT IS HEREBY CERTIFIED that an appeal from this dismissal would not be taken in
good faith.
An Order of Dismissal will accompany this Memorandum and Order.

Dated this 12th day of October, 2017.

\s\ Jean C. Hamilton
JEAN C. HAMILTON
UNITED STATES DISTRICT JUDGE

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