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Smith v. Depriest

United States District Court, E.D. Missouri, Eastern Division

January 27, 2015

DAVID E. SMITH, Plaintiff,
THOMAS DEPRIEST, et al., Defendants.


JEAN C. HAMILTON, District Judge.

This matter is before the Court on the application of David E. Smith (registration no. 190898) 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 therefore, the motion will be granted and plaintiff will be assessed an initial partial filing fee of $12.87. See 28 U.S.C. § 1915(b)(1). Furthermore, based upon a review of the complaint, the Court finds that this action 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 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. See 28 U.S.C. § 1915(b)(1). 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 account. See 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. See 28 U.S.C. § 1915(a)(1), (2). A review of plaintiff's account statement indicates an average monthly deposit of $64.33, and an average monthly account balance of $5.65. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee of $12.87, which is 20 percent of plaintiff's average monthly balance.

28 U.S.C. § 1915(e)

Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court must 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 from a defendant who is immune from such relief. An action is frivolous if it "lacks an arguable basis in either law or fact." Neitzke v. Williams, 490 U.S. 319, 328 (1989). An action is malicious if it is undertaken for the purpose of harassing the named defendants 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). An action fails to state a claim upon which relief can be granted if it does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

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 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 conclusion is the most plausible or whether it is more likely that no misconduct occurred. Id. at 1950-52.

Moreover, 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 (1992).

The Complaint

Plaintiff, an inmate at the Eastern Reception Diagnostic and Correctional Center, brings this action pursuant to 42 U.S.C. §§ 1983 and 1985. Named as defendants are: Thomas Depriest (a judge), Megan Higgins Julian (an assistant prosecuting attorney), David B. Borgmeyer (an assistant public defender), and Joan M. Gilmer (a court clerk). In addition, plaintiff has filed a motion to add three new party-defendants: Ryan Dicherber (a police detective), Robert P. McCulloch (St. Louis County District Attorney), and Timothy Miller (a police officer). The motion will be granted.

Plaintiff alleges that on May 17, 2013, he "was processed into the St. Louis County Justice Center to await trial for alleged crimes of robbery, assault, and armed criminal action." He states that he appeared in Court on July 8, 2013, but defendant Depriest "refused [plaintiff] the opportunity to address the public record." Plaintiff further states that defendants Julian and Depriest have refused to respond to various motions plaintiff filed on his own behalf in his criminal case. Plaintiff states that his appointed attorney, defendant Borgmeyer, unlawfully waived plaintiff's right to a speedy trial and that Borgmeyer and Depriest conspired to deprive plaintiff of his right to a speedy trial. Plaintiff generally alleges that defendant Julian "did neglect to prevent the deprivation of [plaintiff's] rights." In addition, plaintiff summarily claims that defendant Dicherber "did in fact commit perjury in St. Louis County Court and public record, " and that plaintiff "did prove in open court... that Ryan Dicherber is a liar." Plaintiff alleges that Dicherber, Julian, and Depriest "did conspire too [sic] let a perjured person too [sic] testify in a jury trial in order too [sic] obtain a guilty verdict." Plaintiff further alleges that defendant McCulloch is responsible for the acts of defendant Julian and that defendant Miller "did conspire too [sic] give false statement on a report used to obtain a warrant for felony crimes."


Having carefully reviewed plaintiff's allegations, the Court concludes that the complaint is legally frivolous. Plaintiff's allegations do not rise to the level of a constitutional violation and fail to state a claim or cause of action against any of the named defendants. More specifically, judges are immune from suit under § 1983. Mireles v. Waco, 502 U.S. 9, 11 (1991) ("Judicial immunity is an immunity from suit, not just from ultimate assessment of damages."); see also Robinson v. Freeze, 15 F.3d 107, 108 (8th Cir. 1994) ("Judges performing judicial functions enjoy absolute immunity from § 1983 liability."). "Court clerks have absolute quasi-judicial immunity from damages for civil rights violations when they perform tasks that are an integral part of the judicial process unless the clerks acted in the clear absence of all jurisdiction." Boyer v. County of Washington, 971 F.2d 100, 101 (8th Cir. 1992) (internal quotation marks and citations omitted). See also Maness v. District of Logan County, 495 F.3d 943 (8th Cir. 2007) (clerks absolutely immune for acts that may be seen as discretionary or for acts taken at the direction of a judge or according to court rule). Similarly, when "a prosecutor is acting within the scope of his proper prosecutorial capacity, these actions are cloaked with the same immunity granted to judges." Barnes v. Dorsey, 480 F.2d 1057, 1060 (8th Cir. 1973); Wilhelm v. Turner, 431 F.2d 177, 182-83 (8th Cir. 1981); cf. Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976) (prosecutor absolutely immune from suit for damages under § 1983 for alleged violations committed in "initiating a prosecution and in presenting the state's case"); Myers v. Morris, 810 F.2d 1437, 1446-48 (8th Cir. 1987) (immunity extends to allegations of vindictive prosecution). Public defenders performing lawyers' traditional functions do not act under color of state law for purposes of § 1983. Polk County v. Dodson, 454 U.S. 312, 325 (1981). The Court also notes that supervisors cannot be held vicariously liable under § 1983 for the actions of a subordinate. See Ashcroft v. Iqbal, 129 S.Ct. ...

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