United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
W. SIPPEL, UNITED STATES DISTRICT JUDGE
matter is before the Court upon the motion of plaintiff
Deparis Townsend (registration no. 1212707), an inmate at
Algoa Correctional Center (“ACC”), 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
$1.00. 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.
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 not submitted a prison account statement. As a result,
the Court will require plaintiff to pay an initial partial
filing fee of $1.00. See Henderson v. Norris, 129
F.3d 481, 484 (8th Cir. 1997) (when a prisoner is unable to
provide the Court with a certified copy of his prison account
statement, the Court should assess an amount “that is
reasonable, based on whatever information the court has about
the prisoner's finances.”). If plaintiff is unable
to pay the initial partial filing fee, he must submit a copy
of his prison account statement in support of his claim.
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'd 826 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.
an inmate at Algoa Correctional Center, brings this action
asserting violations of his civil rights pursuant to 42
U.S.C. § 1983. Plaintiff brings this action against the
Missouri Public Defender's Office and his former public
defender, Kerina Ibarra.
asserts that he was denied adequate counsel in his criminal
action in Mississippi County, Missouri, when his Missouri
Public Defender, Kerina Ibarra, was not ready for trial on
the trial date. He believes this was a violation of his
criminal action, plaintiff was charged with driving while his
license was suspended or revoked as well as resisting arrest.
His case was set for jury trial on July 10, after he waived
indictment. See State v. Townsend, No. 18MI-CR81-01
(33rd Judicial Circuit, Mississippi County Court).
After a capias warrant was issued as to plaintiff, a no bond
order was issued by the Court. As part of the Order of the
Court, defendant was to remain in custody “until such
time as his attorney could meet with him and file a statement
that defense was ready for trial.” Plaintiff then
waived his right to counsel, pled guilty to the charges and
was sentenced to the Missouri Department of Corrections for
three years on August 13, 2019.
cannot maintain an action against the Missouri Public
Defender's Office or his attorney Kerina Ibarra because a
criminal defense attorney is not suable under 42 U.S.C.
§ 1983. See Polk Cty. v. Dodson, 454 U.S. 312,
325 (1981) (stating that “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”); Meyers v. Vogal, 960 F.2d 750,
750 (8th Cir. 1992) (stating that attorneys who
represented plaintiff, “whether appointed or retained,
did not act under color of state law and, thus, are not
subject to suit under section 1983”); and Rogers v.
Bruntrager, 841 F.2d ...