# Clark v. Borowiak

> District Court, E.D. Missouri · March 30, 2022

URL: https://www.frixlaw.com/law-library/cases/10236784

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** March 30, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10236784

## How later opinions describe it (automated extraction)

- stating that federal courts are not required to “assume facts that are not alleged, just because an additional factual allegation would have formed a stronger complaint”
- 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”
- stating that the Eighth Circuit “has repeatedly held that both retained and appointed attorneys are not liable for deprivations of constitutional rights under 42 U.S.C. § 1983 for the reason that they do not act under color of state law”
- explaining that, when a prisoner cannot provide the court with a certified copy of his inmate account statement, the court should assess an amount “that is reasonable, based on whatever information the court has about the prisoner’s finances”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

MARCEL CLARK, )
)
Plaintiff(s), )
)
v. ) Case No. 4:22-cv-00006-SRC
)
ZACHARY BOROWIAK, )
)
Defendant(s). )

Memorandum and Order
Plaintiff Marcel Clark (no relation to the undersigned) seeks leave to commence this civil
action without prepayment of the required filing fee. Doc. 3. Having reviewed the motion, the
Court finds that Clark lacks sufficient funds to pay the entire filing fee and assesses an initial
partial filing fee of $1.00. See 28 U.S.C. § 1915(b)(1). Additionally, for the reasons discussed
below, the Court dismisses Clark’s complaint with prejudice. See 28 U.S.C. § 1915(e)(2)(B).
28 U.S.C. § 1915(b)(1)
Pursuant to 28 U.S.C. § 1915(b)(1), a prisoner bringing a civil action in forma pauperis
must pay the full filing fee. If the prisoner has insufficient funds in his prison account to pay the
whole 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-months. After payment of the
initial partial filing fee, the prisoner must 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 forwards these monthly payments to the Clerk of Court
each time the amount in the prisoner’s account exceeds $10.00, until the filing fee is fully paid.
Id.
Clark has not submitted an inmate account statement as required by 28 U.S.C. §
1915(a)(2). Nevertheless, having reviewed the information contained in the motion, the Court

requires plaintiff to pay an initial partial filing fee of $1.00. See Henderson v. Norris, 129 F.3d
481, 484 (8th Cir. 1997) (explaining that, when a prisoner cannot provide the court with a
certified copy of his inmate account statement, the court should assess an amount “that is
reasonable, based on whatever information the court has about the prisoner’s finances”). If Clark
is unable to pay the initial partial filing fee, he must notify the Court and submit a copy of his
inmate account statement in support of his claim.
Legal Standard on Initial Review
Under 28 U.S.C. § 1915(e)(2), the Court must dismiss a complaint filed in forma pauperis
if it is frivolous, malicious, or fails to state a claim upon which relief can be granted. To state a
claim under 42 U.S.C. § 1983, a plaintiff must demonstrate a plausible claim for relief, which is

more than a “mere possibility of misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “A
claim has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678.
Determining whether a complaint states a plausible claim for relief is a context-specific task that
requires the reviewing court to draw upon judicial experience and common sense. Id. at 679.
The court must “accept as true the facts alleged, but not legal conclusions or threadbare recitals
of the elements of a cause of action, supported by mere conclusory statements.” Barton v. Taber,
820 F.3d 958, 964 (8th Cir. 2016); see also Brown v. Green Tree Servicing LLC, 820 F.3d 371,
372–73 (8th Cir. 2016) (stating that the court must accept factual allegations in complaint as true,
but is not required to “accept as true any legal conclusion couched as a factual allegation”).
When reviewing a pro se complaint under 28 U.S.C. § 1915(e)(2), the Court must give it
the benefit of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). A “liberal

construction” means that if the essence of an allegation is discernible, the district court should
construe the plaintiff’s complaint in a way that permits his or her claim to be considered within
the proper legal framework. Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015). However,
even pro se complaints are required to allege facts which, if true, state a claim for relief as a
matter of law. Martin v. Aubuchon, 623 F.2d 1282, 1286 (8th Cir. 1980); see also Stone v.
Harry, 364 F.3d 912, 914–15 (8th Cir. 2004) (stating that federal courts are not required to
“assume facts that are not alleged, just because an additional factual allegation would have
formed a stronger complaint”). In addition, affording a pro se complaint the benefit of a liberal
construction does not mean that procedural rules in ordinary civil litigation must be interpreted
so as to excuse mistakes by those who proceed without counsel. See McNeil v. United States,

508 U.S. 106, 113 (1993).
The Complaint
Representing himself, pretrial detainee Clark filed a complaint on a Court-provided
employment-discrimination form. Because Clark appears to be alleging constitutionally
deficient legal representation—and because the facts allege do not concern employment
whatsoever—the Court construes the complaint as arising under 42 U.S.C. § 1983. Clark names
attorney Zachary Borowiak as the sole defendant and does not indicate the capacity in which
Borowiak is sued. Doc. 1 at p. 2.
The complaint makes allegations regarding Borowiak’s legal representation in Clark’s
state criminal cases: State of Missouri v. Clark, No. 20SL-CR00985 (21st Jud. Cir., St. Louis
County) and State of Missouri v. Clark, No. 20SL-CR00985-01 (21st Jud. Cir., St. Louis
County).1 Doc. 1 at 5–6. Clark asserts that Borowiak became his attorney in “early 2020,” and
remains his attorney to this day.2 Id. at p. 5. During this time, Clark alleges that Borowiak “has

not filed one motion,” has not adequately represented, defended, or advocated for him, and that
Borowiak has “told plaintiff that no one will say or do anything,” even if Clark complains. Id.
More specifically, Clark states that Borowiak has refused to give him his “discovery
package,” but has only provided copies of police reports, “as if hiding something.” Id. at p. 6.
He further asserts that Borowiak has allowed his case to go through “no less” than six judges,
seven prosecutors, “several grand jury hearings, countless preliminary hearings,” and several
settlement conferences. Id. Clark also accuses Borowiak of allowing a preliminary hearing to be
“held over the phone via conference call,” and states that over the course of two years, he and
Borowiak have never “been in [the] same courtroom or Web X screen together.” Id.

Based on alleged deficiencies in Borowiak’s representation, Clark seeks unspecified monetary
relief. Id. at p. 7. He also asks the Court to “look into” Borowiak’s “legal dealings.” Id.
Discussion
The Court has reviewed Clark’s complaint pursuant to 28 U.S.C. § 1915. Based on that
review, the Court dismisses this action with prejudice for failure to state a claim upon which
relief can be granted.

1 The Court reviewed these cases on Case.net, Missouri’s online case management system. The Court takes judicial
notice of these public records. See Levy v. Ohl, 477 F.3d 988, 991 (8th Cir. 2007) (explaining that a district court
may take judicial notice of public records); Stutzka v. McCarville, 420 F.3d 757, 760 n.2 (8th Cir. 2005) (stating
courts “may take judicial notice of judicial opinions and public records”).

2 Borowiak entered his appearance in Clark’s criminal cases on April 15, 2020, pursuant to Mo. Rev. Stat. §§
600.011(1), 600.042.5(1). These sections authorize the state public defender to hire private attorneys.
As noted, the Court construes this case as arising under 42 U.S.C. § 1983. “The essential
elements of a § 1983 claim are (1) that the defendant(s) acted under color of state law, and (2)
that the alleged wrongful conduct deprived the plaintiff of a constitutionally protected federal
right.” Green v. Byrd, 972 F.3d 997, 1000 (8th Cir. 2020). “Generally speaking, a public

employee acts under color of law when he exercises power possessed by virtue of state law and
made possible only because the wrongdoer is clothed with the authority of state law.” Johnson v.
Phillips, 664 F.3d 232, 239–40 (8th Cir. 2011).
On the first element, a defense attorney, whether appointed or retained, does not act
under color of state law, and thus cannot be liable when acting as a defense attorney for an
alleged deprivation of constitutional rights under 42 U.S.C. § 1983. See Polk Cty. v. Dodson,
454 U.S. 312, 325 (1981) ( “[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”);
Myers 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”); Christian v. Crawford, 907 F.2d 808, 810 (8th Cir. 1990)
(stating that the Eighth Circuit “has repeatedly held that both retained and appointed attorneys
are not liable for deprivations of constitutional rights under 42 U.S.C. § 1983 for the reason that
they do not act under color of state law”); 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 defense counsel”).
In this case, the only defendant is Clark’s appointed attorney. Clark’s allegations regard
the actions he claims Borowiak has taken—or failed to take—while performing the traditional
functions of defense counsel. Clark has accused Borowiak of not filing motions, of not
providing Clark complete discovery, and of generally failing to “adequately” represent, defend,
and advocate on Clark’s behalf. As the cases cited above demonstrate, an attorney, whether
appointed or retained, does not act under color of state law for purposes of 42 U.S.C. § 1983
when performing these functions. Because Clark fails to allege any state action, an essential
element of a § 1983 claim, the Court dismisses Clark’s complaint.
Conclusion
Accordingly, the Court grants plaintiffs [3] motion for leave to proceed in forma
pauperis and orders plaintiff to pay an initial partial filing fee of $1.00 no later than April 29,
2022. Plaintiff must make his remittance payable to “Clerk, United States District Court,” and
include on it: (1) his name; (2) his prison registration number; (3) the case number; and (4) the
statement that the remittance 1s for an original proceeding.
The Court dismisses this action with prejudice, see 28 U.S.C. § 1915(e)(2)(B), certifies
that an appeal from this dismissal would not be taken in good faith, and denies as moot plaintiff’s
[2] motion for appointment of counsel. A separate order of dismissal accompanies this order.
So Ordered this 30th day of March 2022.

SLR, CK
STEPHEN R. CLARK me
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10236784. Public record. Not legal advice.