United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
RICHARD WEBBER UNITED STATES DISTRICT JUDGE
matter is before the Court upon the motion of Sean Maurice
Johnson, an inmate at Potosi 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 $37.42. 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).
U.S.C. § 1915(b)(1)
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 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.
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 $187.12. Plaintiff has insufficient funds to pay the
entire filing fee. Accordingly, the Court will assess an
initial partial filing fee of $37.42, which is 20 percent of
plaintiff's average monthly deposit.
U.S.C. § 1915(e)
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=d826 F.2d 1059
(4th Cir. 1987).
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 proffered conclusion is the most plausible or
whether it is more likely that no misconduct occurred.
Id. at 1950, 1951-52.
seeks monetary relief in this action for the violation of his
constitutional rights under 42 U.S.C. § 1983. Plaintiff
names as defendants Eric Barnhart, his attorney in an
underlying criminal matter from 2013, and Dr. Rick Scott. Dr.
Rick Scott was retained by defendant Barnhart to conduct a
psychological evaluation of plaintiff to determine if he was
competent to stand trial on a charge of first degree assault.
Plaintiff states that Dr. Scott was required by a Missouri
statute to file a written report of his psychological
examination of plaintiff, which he did not do. Plaintiff
alleges a breach of duty and medical malpractice against Dr.
Scott. He also allege legal malpractice against Eric Barnhart
for not filing a motion to rely on the defense of mental
disease or defect.
carefully reviewed and liberally construed plaintiff's
allegations, the Court finds that the complaint is largely
duplicative of plaintiff's complaint filed in Johnson
v. Barnhart, No. 4:15-CV-286 CAS (E.D. Mo. filed Feb.
12, 2015) and, like his prior case, is legally frivolous as
to the defendants.
state a claim under § 1983, a plaintiff must establish
that a person acting under color of state law committed the
acts that form the basis of the complaint. See Parratt v.
Taylor, 451 U.S. 527, 535 (1981), overruled on other
grounds, Daniels v. Williams, 474 U.S. 327, 328
(1986). The allegations against defendant Eric Barnhart for
legal malpractice do not constitute action under color of
state law for purposes of § 1983. See Polk Cty. v.
Dodson, 454 U.S. 312 (1981) (actions of public defender
performing traditional functions of attorney do not
constitute action under color of state law); Myers v.
Vogal, 960 F.2d 750, 750 (8th Cir. 1992) (attorneys,
whether appointed or retained, who represented plaintiff in
criminal proceedings did not act under color of state law and
were not subject to suit under § 1983); Harkins v.
Eldredge, 505 F.3d 802, 803 (8th Cir. 1974) (conduct of
counsel, either retained or appointed, in representing client
does not constitute action under color of state law).
Similarly, plaintiff does not allege, and there is no
indication, that Dr. Rick Scott is a state actor for purposes
of § 1983, and therefore, this action will be dismissed
under 28 U.S.C. § 1915(e)(2)(B).
IT IS HEREBY ORDERED that plaintiffs motion
to proceed in forma ...