Opinion
No. 01 C 8003
October 24, 2001
MEMORANDUM OPINION AND ORDER
Joseph Fleming ("Fleming") has tendered a self-prepared Complaint, seeking to invoke federal jurisdiction under 42 U.S.C. § 1983 against two public defenders who represented him on a burglary charge. Because Fleming was convicted and is now serving time at Sheridan Correctional Center ("Sheridan"), this opinion must first address questions regarding his entitlement to proceed without prepayment of the filing fee pursuant to 28 U.S.C. § 1915 ("Section 1915"). When that has been done, this opinion will turn to the substance of Fleming's claim.
To support his effort to justify in forma pauperis status, Fleming has accompanied his Complaint with a partially-filled-out form of Application To Proceed Without Prepayment of Fees ("Application") and a printout of transactions in his trust fund account at Sheridan. Although the Application is incomplete (Fleming not having answered several of the questions there), this Court will presume that he qualifies for such relief from (1) the minimal initial balance in the trust fund account and (2) the fact that the only deposits to the account stemmed from prison payroll payments and from some money orders sent in by Fleming's family members. As for the printout, it does not cover a full six-month period (see Section 1915(a)(2)), so that this Court has made the calculation called for under Section 1915(b)(1) in terms of the average monthly deposits for the lesser period covered by the report. That monthly average comes to $54.27, so that the initial partial filing fee of 20% required by Section 1915(b)(1) comes to $10.87. Accordingly, Fleming is assessed an initial partial filing fee of $10.87, and the Sheridan trust fund officer is ordered to collect that partial filing fee from Fleming's trust fund account there and to pay it directly to the Clerk of Court ("Clerk").
After such payment, the trust fund officer at Sheridan or any other correctional facility where Fleming is confined is authorized to collect monthly payments from his trust fund account in an amount equal to 20% of preceding month's income credited to the account. Monthly payments collected from the trust fund account shall be forwarded to the Clerk each time the amount in the account exceeds $10 until the full $150 filing fee is paid. Both the initial payment and all future payments shall be sent to the Clerk, United States District Court, 219 South Dearborn Street, Chicago, Illinois 60604, attention: Fiscal Department, and shall clearly identify Fleming's name and the 01 C 8003 case number assigned to this action. To implement these requirements, the Clerk shall send a copy of this order to the Sheridan trust fund officer.
As for Fleming's substantive claim, it has been clear for fully two decades that a public defender, even though paid with public funds, isnot a state actor suable under Section 1983 for asserted misconduct in the course of his or her lawyering efforts (Polk County v. Dodson, 454 U.S. 312 (1981)). That being so, Fleming's effort to hold his two lawyers liable under Section 1983 is "frivolous" in the legal sense defined by Neitzke v. Williams, 490 U.S. 319, 325 (1989) and further refined in Denton v. Hernandez, 504 U.S. 25, 32-33 (1992). Hence both Fleming's Complaint and this action are dismissed sua sponte, although such dismissal does not excuse Fleming's earlier-defined obligation to pay the entire $150 filing fee in appropriate installments.