Opinion
Civil Action No. 5:02-CV-070-C
April 22, 2002
ORDER
On April 11, 2002, Plaintiff Steve McNeal, acting pro se, filed a complaint pursuant to 42 U.S.C. § 1983, complaining that Quinton Dwight McDonald, Robert Vincent Martinez, and Joseph W. Kline, attorneys-at-law in Lubbock County, Texas, wrongfully deprived him of access to the courts by ineffectively representing him at various stages in state criminal proceedings. He seeks relief in the form of a declaratory judgment and monetary damages. Plaintiff has filed an Application to Proceed In Forma Pauperis and a certified copy of his certificate of inmate trust account. Pie Defendants have not answered.
When a prisoner seeks to proceed in forma pauperis, "[n]otwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines" that the complaint is frivolous, malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C.A. § 1915(e)(2)(B) (West 1994 and Supp. 2000). See 28 U.S.C.A. § 1915A (West 1994 and Supp. 2000) (stating that when a prisoner seeks redress from a governmental entity or one of its employees, the court shall review the complaint as soon as practicable and dismiss it if the court finds the complaint frivolous, malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief); 42 U.S.C.A. § 1997e(c) (West 1994 and Supp. 2000) (providing that a district court shall on its own motion or the motion of any party dismiss a complaint by a prisoner regarding prison conditions if the court is satisfied the complaint is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from an immune defendant).
A claim is frivolous if it has no arguable basis in law or fact. Nietzke v. Williams, 490 U.S. 319 (1989). A claim has no arguable basis in law if it is based on an indisputably meritless legal theory, "such as if the complaint alleges the violation of a legal interest which clearly does not exist." Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998) (quotation omitted). A claim has no arguable basis in fact if "after providing the Plaintiff the opportunity to present additional facts when necessary, the facts alleged are clearly baseless." Talib v. Gilley, 138 F.3d 211, 213 (5th Cir. 1998).
District courts must construe in forma pauperis complaints liberally, particularly in the context of dismissals under § 1915(e)(2)(B), but are given broad discretion in determining when such complaints are frivolous. Macias v. Raul A. (Unknown) Badge No. 153, 23 F.3d 94, 97 (5th Cir. 1994). A complaint may not be dismissed under § 1915(d)(2)(B) "simply because the court finds the plaintiff's allegations unlikely." Jolly v. Klein, 923 F. Supp. 931, 942-43 (S.D. Tex. 1996). A civil rights plaintiff must support his claim(s) with specific facts demonstrating a constitutional deprivation and may not simply rely on conclusory allegations. Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir. 1995). See Wesson v. Ogleby, 910 F.2d 278, 281 (5th Cir. 1990) ("An IFP complaint that recites hare legal conclusions, with no suggestion of supporting facts, or that postulates facts of an entirely fanciful nature, is a prime candidate for dismissal under [§ 1915(d)(2)(B)]."). Nevertheless, a district court is bound by the allegations in a plaintiffs complaint and is "not free to speculate that the plaintiff `might' be able to state a claim if given yet another opportunity to add more facts to the complaint." Macias v. Raul A. (Unknown) Badge No. 153, 23 F.3d at 97.
"To state a claim under § 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 (1988). A defense attorney, whether appointed or retained, does not act under color of law. Polk County v. Dodson, 454 U.S. 312 (1981).
The Court therefore finds that:
(1) Plaintiff's complaint is frivolous and fails to state a claim on which relief can be granted, and should be dismissed with prejudice.
(2) This dismissal shall count as a qualifying dismissal under 28 U.S.C. § 1915 and Adepegba v. Hammons, 103 F.3d 383 (5th Cir. 1996).
(3) Pursuant to 28 U.S.C. § 1915(b) and Williams v. Roberts, 116 F.3d 1126 (5th Cir. 1997), the full filing fee of $150.00 is assessed against Plaintiff and shall be paid by the agency having custody of Plaintiff in monthly installments as provided in 28 U.S.C. § 1915(b)(2). The agency having custody of Plaintiff shall deduct 20% of each deposit made to Plaintiff's inmate trust account and forward payments to the Court on a regular basis provided the account exceeds $10.00.
Judgment shall be entered accordingly.
All Pending motions are hereby denied.
Plaintiff is advised that if he appeals this Order, he will be required to pay the appeal fee of $105.00 pursuant to the PLRA, and he must submit an application to proceed in forma pauperis and a 6-month Certificate of Inmate Trust Account at the same time he files his notice of appeal.
A copy of this Order shall be mailed to the Office of General Counsel, TDCJ-ID Litigation Support, P.O. Box 13084, Austin, Texas, 78711 and to TDCJ Local Funds Division, P.O. Box 629, Huntsville, Texas 77342-0629.