United States District Court, D. Kansas
MEMORANDUM AND ORDER
CROW U.S. SENIOR DISTRICT JUDGE
matter is a civil rights action filed pursuant to 42 U.S.C.
§ 1983. Plaintiff, a person held at the Johnson County
Adult Detention Center, proceeds pro se and seeks leave to
proceed in forma pauperis.
complaint names as the sole defendant the public defender who
represented plaintiff in a 2017 criminal action. Plaintiff
claims the defendant failed to provide adequate
representation and seeks punitive damages for mental anguish,
emotional distress, and pain and suffering.
motion to proceed in forma pauperis
motion is governed by 28 U.S.C. § 1915(b). Because
plaintiff is a prisoner, he must pay the full filing fee in
installment payments taken from his prison trust account when
he “brings a civil action or files an appeal in forma
pauperis[.]” § 1915(b)(1). Pursuant to §
1915(b)(1), the court must assess, and collect when funds
exist, an initial partial filing fee calculated upon the
greater of (1) the average monthly deposit in his account or
(2) the average monthly balance in the account for the
six-month period preceding the filing of the complaint.
Thereafter, the plaintiff must make monthly payments of
twenty percent of the preceding month's income in his
institutional account. § 1915(b)(2). However, a prisoner
shall not be prohibited from bringing a civil action or
appeal because he has no means to pay the initial partial
filing fee. § 1915(b)(4).
the certified financial statement submitted by plaintiff
shows that he does not have the financial means to pay an
initial installment payment, the Court grants leave to
proceed in forma pauperis and does not impose an initial
filing fee. Plaintiff remains obligated to pay the $350.00
filing fee in installments, and his custodian will be advised
of that obligation by a copy of this order.
federal court must conduct a preliminary review of any case
in which a prisoner seeks relief against a governmental
entity or an officer or employee of such an entity.
See 28 U.S.C. §1915A(a). Following this review,
the court must dismiss any portion of the complaint that is
frivolous, malicious, fails to state a claim upon which
relief may be granted, or seeks monetary damages from a
defendant who is immune from that relief. See 28
U.S.C. § 1915A(b).
screening, a court liberally construes pleadings filed by a
party proceeding pro se and applies “less stringent
standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
state a claim for relief under Section 1983, a plaintiff must
allege the violation of a right secured by the Constitution
and laws of the United States and must show that the alleged
deprivation was committed by a person acting under color of
state law.” West v. Atkins, 487 U.S. 42, 48-49
United States Supreme Court “has stated 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.'” Garza
v. Bandy, 293 Fed.Appx. 565, 566 (10th Cir.
2008)(unpublished)(quoting Polk County v. Dodson,
454 U.S. 312, 325 (1981)). Therefore, “‘even
though the defective performance of defense counsel may cause
the trial process to deprive an accused person of his liberty
in an unconstitutional manner, the lawyer who may be
responsible for the unconstitutional state action does not
himself act under color of state law within the meaning of
§ 1983.'” Id. (quoting Briscoe v.
LaHue, 460 U.S. 325, 320 n. 6 (1983)).
while plaintiff may challenge his incarceration in a petition
for habeas corpus, his claim against the defendant public
defender under § 1983 is barred by the holding in
THEREFORE, BY THE COURT ORDERED plaintiff's motion for
leave to proceed in forma pauperis (Doc. 2) is granted.
Collection action shall proceed under 28 U.S.C. §
1915(b)(2) until plaintiff satisfies the $350.00 filing fee.
A copy of this ...