Westbrook v. Patel

Filing 3

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiff's motion for leave to proceed in forma pauperis [ECF No. 2 ] is GRANTED, and the filing fee is waived. See 28 U.S.C. § 1915(a)(1). IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the complaint because the complaint fails to state a claim upon which relief can be granted. Plaintiff's claims against defendant Bhumi Patel are DISMISSED without prejudice. See 28 U.S.C. § 1915 (e)(2)(B). 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. SEE ORDER FOR DETAILS. Signed by Sr. District Judge Audrey G. Fleissig on 6/3/2024. (CLT)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
FREDERICK WESTBROOK,
Plaintiff,
v.
BHUMI PATEL,
Defendant.

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Case No. 4:24-cv-00272 AGF

MEMORANDUM AND ORDER
Self-represented Plaintiff Frederick Westbrook brings this action under 42 U.S.C. §
1983 against his public defender, for alleged violations of his civil rights. The matter is
now before the Court upon the motion of Plaintiff for leave to proceed in forma pauperis,
or without prepayment of the required filing fees and costs. ECF No. 2. Having reviewed
the motion and the financial information submitted in support, the Court will grant the
motion and waive the filing fee. See 28 U.S.C. § 1915(a)(1). As Plaintiff is now
proceeding in forma pauperis, the Court must review his complaint under 28 U.S.C. §
1915. Based on such review, the Court will dismiss the complaint for failure to state a
claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B).
Legal Standard on Initial Review
Under 28 U.S.C. § 1915(e)(2), the Court may dismiss a complaint filed in forma
pauperis if the action is frivolous or 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.
When reviewing a complaint filed by a self-represented person under 28 U.S.C. § 1915,

the Court accepts the well-pleaded facts as true, White v. Clark, 750 F.2d 721, 722 (8th Cir.
1984), and it liberally construes the complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007);
Haines v. Kerner, 404 U.S. 519, 520 (1972). A “liberal construction” means that if the
essence of an allegation is discernible, the district court should construe the plaintiff’s
complaint in a way that permits the claim to be considered within the proper legal
framework. Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015). However, even selfrepresented plaintiffs are required to allege facts which, if true, state a claim for relief as a
matter of law. Martin v. Aubuchon, 623 F.2d 1282, 1286 (8th Cir. 1980); see also Stone v.
Harry, 364 F.3d 912, 914-15 (8th Cir. 2004) (refusing to supply additional facts or to
construct a legal theory for the self-represented plaintiff).
To state a claim for relief, 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.

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Plaintiff’s Background
I.

State Court Litigation
Plaintiff was charged in St. Louis County court with second-degree sodomy and

rape in August 2021. See State v. Westbrook, No. 21SL-CR02804-01 (21st Jud. Cir.,
2021). Four months later, the state court ordered an evaluation of Plaintiff’s mental
condition by the Missouri Department of Mental Health. In April 2022, the Department of
Mental Health found Plaintiff competent to stand trial.
After firing two private attorneys, Plaintiff sought representation from the public
defender’s office for counsel to assist in his defense against the pending state-court charges.
In November 2022, defendant public defender Bhumi Patel took over as Plaintiff’s counsel
in his pending criminal case. A year after the Department of Mental Health found Plaintiff
competent to stand trial, Patel filed a motion in the state court seeking to continue the May
2023 trial date so that a private mental health professional could do a second competency
evaluation of Plaintiff. The state court granted the trial continuance.
In October 2023, Plaintiff informed the state court that he was suing his attorney,
Patel, for ineffective assistance of counsel and requested a change of counsel from the
public defender’s office. However, before the state court ruled on Plaintiff’s change-ofcounsel request, the court found Plaintiff lacked the mental fitness to proceed to trial based
on the results of the private competency evaluation. As a result, in November 2023, the
criminal proceedings against Plaintiff were suspended, and Plaintiff was committed to the
custody of the Director of the Missouri Department of Mental Health.

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Just recently, on May 16, 2024, the Director of the Department of Mental Health
informed the state court that a recent examination of Plaintiff found no change to his mental
status or his lack of competency to stand trial. The report also acknowledged that Plaintiff
is still awaiting admission to a Department of Mental Health facility due to a severe
shortage in staffing and bed space. Therefore, Plaintiff is still being held at the St. Louis
County Justice Center in Clayton, Missouri.
II.

Prior Case in this Court
This is not the first civil action that Plaintiff has filed against his state-assigned

public defender, Bhumi Patel, in this Court. See Westbrook v. Patel, No. 4:23-cv-1200SRC (E.D. Mo. 2023). In September 2023, Plaintiff filed a § 1983 complaint against four
defendants including Patel. Id. at ECF No. 1. After reviewing his complaint under 28
U.S.C. § 1915(e)(2)(B), this Court found that Plaintiff’s complaint failed to state a claim
upon which relief could be granted; however, the Court allowed Plaintiff a chance to amend
his pleadings. Id. at ECF No. 4. In his amended complaint, Plaintiff named only one
defendant, Patel, in both her individual and official capacities. Id. at ECF No. 6. Upon
review of Plaintiff’s amended pleading, this Court found that Plaintiff failed to state a claim
for relief because a defense attorney – whether appointed or retained – does not act under
color of state law and therefore cannot be liable for any alleged deprivation of constitutional
rights under § 1983. Id. at ECF No. 8. As a result, the case was dismissed on February 16,
2024, without prejudice. Id. at ECF No. 9.

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The Complaint
Five days 1 after the dismissal of Plaintiff’s prior § 1983 case against Patel, the Court
received the complaint for this matter. 2 Similar to Plaintiff’s amended complaint in his
previously filed case, Plaintiff brings this case against his public defender, Bhumi Patel, in
her individual and official capacities. ECF No. 1 at 1-2. Plaintiff’s ‘Statement of Claim’
makes essentially the same claims against Patel as the amended complaint in his dismissed
case. In his own words, Plaintiff alleges as follows:
• Plaintiff was harassed & exploited by defendant by way of mentioning names
of relatives & family members through legal documentation.
• Defendant claimed she found mitigating evidence against Plaintiff. Plaintiff
requesting that evidence but never received it, while still receiving other legal
documents from the defendant.
• Between March 2023 & September 2023 Plaintiff noticed in court documents
that he was being harassed by either alleged victim or acquaintance(s). When
the Plaintiff requested to speak with a Detective or FBI, Defendant stated it
was not her job to get him in contact & if he would stop requesting that he
might get let go.
• Defendant hired an examiner to help her deem the Plaintiff incapable of
assisting with his defense by misdiagnosing him with another specified
schizophrenia and psychopath, and misinterpreting what Plaintiff was saying
to make him seem unstable.
It is unclear exactly when Plaintiff’s pleadings were placed in the mail because the complaint is dated October 30,
2023, but it was not received by the Court until February 21, 2024. See ECF No. 1 at 1 & 10. It is unreasonable to
believe that the mail delivery took almost four months.

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When the Court received Plaintiff’s complaint in this matter, it considered the possibility that Plaintiff was
attempting to file another amended pleading for his other case against Patel that had been recently dismissed.
However, the complaint that initiated this matter contained no case number and was received with a new motion to
proceed in forma pauperis. See ECF Nos. 1 & 2. Plaintiff had already been granted in forma pauperis status in his
prior case on September 26, 2023, so there would have been no reason to file another motion seeking such status.
And Plaintiff did not label the complaint as an amended pleading, nor did he put the case number for his prior case
on the pleading. For these reasons, the Court construed Plaintiff’s filings as initiating a new § 1983 action, despite
the similarity of the allegations with his prior case.

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• Defendant also allowed the Judge and prosecution to use a statute
(566.010(7)) from 2003 (566.010(4)) that has been revised since 2018.
With this, defendant has failed to present significant mitigating evidence to
and for Plaintiff, violating his right to effective counsel.
Id. at 3-4.
In terms of injuries, Plaintiff asserts that Patel’s ineffective assistance of counsel
has resulted in an “extended stay” in jail. This increased incarceration time has caused
Plaintiff to not receive proper medical and dental care, resulting in “infections.” Id. at 4.
For relief, Plaintiff seeks 5.5 million dollars. Id. at 5.
Discussion
Plaintiff brings this civil action under 42 U.S.C. § 1983, which was designed to
provide a “broad remedy for violations of federally protected civil rights.” Monell v. Dep’t
of Soc. Servs., 436 U.S. 658, 685 (1978). “The essential elements of a § 1983 claim are (1)
that the defendant(s) acted under color of state law, and (2) that the alleged wrongful
conduct deprived the plaintiff of a constitutionally protected federal right.” Green v. Byrd,
972 F.3d 997, 1000 (8th Cir. 2020) (citation omitted). To that end, only state actors can be
held liable under § 1983. Carlson v. Roetzel & Andress, 552 F.3d 648, 650 (8th Cir. 2008);
see also Sanders v. Sears, Roebuck & Co., 984 F.2d 972, 975 (8th Cir. 1993) (citing
Jackson v. Metro. Edison Co., 419 U.S. 345, 349 (1974)) (stating that § 1983 secures
constitutional rights from government infringement, not infringement by private parties).
Plaintiff names as defendant only Bhumi Patel, who is a Missouri state public
defender. But a defense attorney, whether appointed or retained, does not act under color
of state law when performing an attorney’s traditional functions, and thus cannot be liable

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for any alleged deprivation of constitutional rights under § 1983. See Polk Cnty. v. Dodson,
454 U.S. 312, 325 (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”); Christian v. Crawford, 907 F.2d 808, 810 (8th Cir. 1990) (“This circuit has
repeatedly held that both retained and appointed attorneys are not liable for deprivations of
constitutional rights under 42 U.S.C. § 1983 for the reason that they do not act under color
of state law”) (citation omitted).
In this case, Plaintiff alleges that Patel violated his rights by failing “to present
significant mitigating evidence,” hiring a medical examiner, and referencing a revised state
statute. ECF No. 1 at 4. All these allegations pertain to traditional functions of an attorney.
Therefore, Patel was not acting under color of state law. As such, Plaintiff has failed to
state a § 1983 claim upon which relief can be granted, and the Court therefore dismisses
his case without prejudice.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s motion for leave to proceed in forma
pauperis [ECF No. 2] is GRANTED, and the filing fee is waived. See 28 U.S.C. §
1915(a)(1).
IT IS FURTHER ORDERED that the Clerk shall not issue process or cause
process to issue upon the complaint because the complaint fails to state a claim upon which
relief can be granted. Plaintiff’s claims against defendant Bhumi Patel are DISMISSED
without prejudice. See 28 U.S.C. § 1915(e)(2)(B).

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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 3rd day of June, 2024.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE

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