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”
How later courts described this case
- 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”
Written by the judges who cited it.
The opinion
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
TONY R. BROWN, SR., )
)
Plaintiff, )
)
v. ) No. 4:25-cv-01285-RHH
)
GREGORY N. SMITH, )
)
Defendant. )
OPINION, MEMORANDUM AND ORDER
This matter is before the Court on the self-represented Plaintiff Tony R.
Brown, Sr.’s application to proceed in district court without prepaying fees and
costs. The Court will grant the application and assess an initial partial filing fee of
$66.00. Furthermore, for the following reasons, the Court will dismiss Plaintiff’s
complaint for failure to state a claim upon which relief may be granted. See 28 U.S.C.
§ 1915(e)(2)(B).
Initial Partial Filing Fee
Pursuant to 28 U.S.C. § 1915(b)(1), a prisoner bringing a civil action without
prepayment of fees and costs 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
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.
Plaintiff has not submitted a copy of his prison account statement. In his
application, however, he states that he receives $330.00 per month in retirement
benefits from the Navy. Based on this information, the Court assesses a $66.00
initial partial filing fee, which is twenty percent of his average monthly deposit.
Legal Standard on Initial Review
Under 28 U.S.C. § 1915(e)(2), the Court is required to dismiss a complaint
filed without full payment of the filing fee 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
964 (8th Cir. 2016).
The Complaint
Plaintiff brings this civil rights action pursuant to 42 U.S.C. § 1983, alleging
his attorney in his underlying state court criminal case was ineffective and seeking
compensation for the time he has spent in jail. Plaintiff names as Defendant his
private defense attorney, Gregory N. Smith. Plaintiff has not indicated on the form
complaint whether he sues Defendant in his individual or official capacity.
Plaintiff states Defendant was ineffective in presenting his criminal defense
during his trial December 4 through December 8, 2023, resulting in his criminal
conviction. Specifically, Plaintiff alleges his attorney did not subpoena witnesses
who would have testified on his behalf and challenged the victim’s testimony. For
relief, Plaintiff seeks $500,000 to compensate him for the time he has spent in jail.
Discussion
“The essential elements of a [42 U.S.C.] § 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). However, a defense attorney, whether appointed
or retained, does not act under color of state law, and thus cannot be liable for the
alleged deprivation of constitutional rights 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
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”).
Because Plaintiff’s criminal defense attorney did not act under color of state
law and cannot be liable under § 1983, the Court will dismiss this action for failure
to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B).
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s application to proceed in the
district court without prepaying fees and costs is GRANTED. [ECF No. 2]
IT IS FURTHER ORDERED that Plaintiff must pay an initial partial filing
fee of $66.00 within thirty (30) days of the date of this order. Plaintiff is instructed
to make his remittance payable to “Clerk, United States District Court,” and to
include upon it: (1) his name; (2) his prison registration number; (3) the case number;
and (4) the statement that the remittance is for an original proceeding.
IT IS FURTHER ORDERED that Plaintiff’s motion to exclude evidence of
prior bad acts is DENIED as moot. [ECF No. 3]
An Order of Dismissal will accompany Memorandum and Order.
Dated this 2" day of October, 2025.
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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