United States District Court, E.D. Missouri, Eastern Division
CEDRIC L. WINTERS, Plaintiff,
RICHARD J. BASCOM, et al., Defendants.
MEMORANDUM AND ORDER
CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE
matter is before the Court upon the motion of plaintiff
Cedric L. Winters (registration no. 1016301), an inmate at
Eastern, Reception and Diagnostic Center
(“ERDCC”), 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 $.35. 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 $1.79. Plaintiff has insufficient funds to pay the entire
filing fee. Accordingly, the Court will assess an initial
partial filing fee of $.35.
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 ERDCC, brings this action asserting violations
of his civil rights pursuant to 42 U.S.C. § 1983.
Plaintiff brings this action against defendant Richard J.
Bascom and The Bascom Law Firm.
asserts that Attorney Richard Bascom and his law firm
“showed unprofessional conduct” when representing
him in a criminal matter in January of 2019. Plaintiff claims
that he was an inmate in Pemiscot County Jail at the time. He
asserts that Mr. Bascom indicated that he would no longer be
able to render counsel to plaintiff in his criminal
proceedings, and this made plaintiff's mental problems
worsen. Plaintiff believes that Mr. Bascom's withdrawal
as criminal counsel resulted in his wrongful conviction.
cannot maintain an action against his attorney, Richard
Bascom or his law firm, 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
853, 856 (8th Cir. 1988) (“Public defenders
do not act under color of state law for purposes of 42 U.S.C.
§ 1983 when performing the traditional functions of
holds true even if the attorney works for the public
defender's office or is appointed by the court.
Therefore, plaintiff has failed to state a claim against Mr.
Bascom and his law firm. See Zutz v. Nelson, 601
F.3d 842, 848 (8th Cir. 2010) (explaining that to
state a § 1983 claim, “a plaintiff must allege
sufficient facts to show (1) that the defendant(s) acted
under color of state law, and ...