Bumpas v. Rogers et al

Filing 3

MEMORANDUM AND ORDER: Plaintiff's application to proceed in forma pauperis (Docket Entry No. 2) is GRANTED and the plaintiff is herewith ASSESSED the civil filing fee of $350.00. There are no allegations in the complaint from which the Cour t could infer an actual conspiracy between the defendants and the prosecutor. The plaintiff, therefore, has failed to state a claim against the defendants. In the absence of an actionable claim, the Court is obliged to DISMISS the instant action. Signed by District Judge Aleta A. Trauger on 8/23/2017. (xc:Pro se party by regular mail; xc: Warden ) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(ab) Modified on 8/23/2017 (ab).

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

DARRELL W. BUMPAS
Plaintiff,
v.
JON DAVID ROGERS, et al.
Defendants.

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No. 3:17-cv-01102
Judge Trauger

MEMORANDUM AND ORDER

The Court has before it a pro se prisoner complaint (Docket Entry No. 1) under 42 U.S.C.
§ 1983 and an application to proceed in forma pauperis (Docket Entry No. 2).
The plaintiff is an inmate at the Northwest Correctional Complex in Tiptonville, Tennessee.
It appears from the application that the plaintiff lacks sufficient financial resources from which to
pay the fee required to file the complaint. Accordingly, the application is GRANTED. The Clerk
shall file the complaint in forma pauperis. 28 U.S.C. § 1915(a).
The plaintiff is herewith ASSESSED the civil filing fee of $350.00. Pursuant to 28 U.S.C.
§ 1915(b)(1)(A) and (B), the custodian of the plaintiff's inmate trust account at the institution where
he now resides is directed to submit to the Clerk of Court, as an initial partial payment, whichever
is greater of:
(a) twenty percent (20%) of the average monthly deposits to the plaintiff's inmate trust
account; or

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(b) twenty percent (20%) of the average monthly balance in the plaintiff's inmate trust
account for the prior six (6) months.
Thereafter, the custodian shall submit twenty percent (20%) of the plaintiff's preceding
monthly income (or income credited to the plaintiff's trust account for the preceding month), but only
when such monthly income exceeds ten dollars ($10.00), until the full filing fee of three hundred
fifty dollars ($350.00) as authorized under 28 U.S.C. § 1914(a) has been paid to the Clerk of Court.
28 U.S.C. § 1915(b)(2).
On December 1, 2014, the plaintiff hired Bernard McEvoy, a Nashville attorney, to represent
him in a criminal matter. Docket Entry No. 1 at 6. Before trial, McEvoy withdrew from the case and
refused to refund any of the plaintiff’s retainer. Id. Eventually, the plaintiff replaced McEvoy with
Jon Rogers, an attorney from Hendersonville. Id. at 7.
Following a bench trial, the plaintiff was found guilty of forgery, theft, criminal simulation
and identity theft (2 counts). Id. at 9. The plaintiff asked Rogers to withdraw but Rogers would
neither withdraw nor refund part of his retainer. Id. The plaintiff is dissatisfied with the legal
representation he received from McEvoy and Rogers and has named both as defendants. He claims
that McEvoy assisted the district attorney “in working out a conviction against me.” Id. at 6. The
plaintiff also claims that Rogers assisted the prosecutor “to work out a conviction(s) against me by
just not defending me, or my rights.” Id. at 11.
To establish a claim for § 1983 relief, the plaintiff must plead and prove that the defendants,
while acting under color of state law, deprived him of a right or privilege guaranteed by the
Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535 (1981).
It is well settled that attorneys, even those appointed by the courts, do not act “under color
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of state law” within the meaning of § 1983 when representing a client. Polk County v. Dodson, 454
U.S. 312, 325 (1981); Mulligan v. Schlachter, 389 F.2d 231, 233 (6th Cir.1968). Counsel, however,
are viewed as acting “under color of state law” when they are engaged in a conspiracy with state
officials to deprive another of his federal rights. Tower v. Glover, 467 U.S. 914, 920 (1984).
In this regard, the plaintiff has alleged that the defendants “assisted” the prosecutor in
obtaining his convictions. That is sufficient to state a colorable claim for relief if the plaintiff has
offered factual allegations from which the Court could infer the existence of an actual conspiracy
between the defendants and the prosecutor. A conspiracy, though, must be pled with specificity;
vague and conclusory allegations that not are supported with material facts are not sufficient to state
a § 1983 claim. Farhat v. Jopke, 370 F.3d 580, 599 (6th Cir. 2004).
There are no such allegations in the complaint from which the Court could infer an actual
conspiracy between the defendants and the prosecutor. The plaintiff, therefore, has failed to state a
claim against the defendants. In the absence of an actionable claim, the Court is obliged to DISMISS
the instant action sua sponte. 28 U.S.C. § 1915(e)(2).
An appeal of the judgment rendered herein would not be taken in good faith. Coppedge v.
United States, 369 U.S. 438, 445-446 (1962). Therefore, the plaintiff is NOT certified to pursue an
appeal of this judgment in forma pauperis. 28 U.S.C. § 1915(a)(3).
Nevertheless, should the plaintiff decide to file a notice of appeal, he must either pay the
Clerk of Court the full appellate filing fee of five hundred five dollars ($505) or submit a new
application to proceed in forma pauperis with a certified copy of his inmate trust account statement
for the previous six month period. 28 U.S.C. § 1915(a)(1); McGore v. Wrigglesworth, 114 F.3d 601,
609 (6th Cir. 1997), abrogated on other grounds, LaFountain v. Harry, 716 F.3d 944, 951 (6th Cir.

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2013).1
The Clerk is directed to send a copy of this order to the Warden of the Northwest
Correctional Complex to ensure that the custodian of plaintiff's inmate trust account complies with
that portion of the Prison Litigation Reform Act relating to the payment of the filing fee.
Entry of this order shall constitute the judgment in this action.
It is so ORDERED.
ENTER this 23rd day of August 2017.

____________________________
Aleta A. Trauger
United States District Judge

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In a departure from former practice, an individual or prisoner granted pauper status
before the district court is no longer automatically entitled to pauper status on appeal. McGore, at
610.
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