United States District Court, N.D. Iowa, Eastern Division
matter is before me pursuant to multiple cases filed by or
involving plaintiff/petitioner Yoosuf Moment.
Leonard T. Strand, Chief Judge
October 17, 2019, Moment filed a document that the United
States District Court for the Eastern District of Arkansas
construed as an attempted 42 U.S.C. § 1983 complaint and
transferred to this court. See C19-1029-LTS, Doc.
No. 3. On October 25, 2019, I entered an initial order
finding that, although Moment filed a motion to proceed in
forma pauperis, he had failed to provide a prison account
statement as required by 28 U.S.C. § 1915(a)(2).
Accordingly, I gave Moment thirty days to file an amended in
forma pauperis motion. Doc. No. 5. In that order, I also
noted Moment failed to name any appropriate defendants and
directed him to file an amended complaint. Id.
that time stated Moment has filed several supplements (Doc.
Nos. 6-8), an amended complaint (Doc. No. 9) and an amended
motion to proceed in forma pauperis (Doc. Nos. 10, 11). In
his amended complaint, Moment appears to be making two
general claims. The first, has to do with his state court
criminal case and the second is about medical care he
received at the Dubuque, Iowa, County Jail.
Application to Proceed In Forma Pauperis
did not submit the statutory filing fee. See 28
U.S.C. § 1914(a) (requiring filing fee). In order for a
court to authorize the commencement of an action without the
prepayment of the filing fee, a person must submit an
affidavit that includes a statement of all the assets the
person possesses. See 28 U.S.C. § 1915(a)(1).
In addition, a prisoner must submit a certified copy of the
trust fund account statement (or institutional equivalent)
for the 6-month period immediately preceding the filing of
the complaint, obtained from the appropriate official of each
prison at which the prisoner was or is confined. See
28 U.S.C. § 1915(a)(2).
an inmate at the Dubuque County Jail, has submitted documents
(Doc. Nos. 10, 11) that substantially comply with those
requirements. Because it is clear that he does not have the
assets necessary to pay the filing fee, his application is
even though the court deems it appropriate to grant a
prisoner-plaintiff in forma pauperis status, that plaintiff
is required to pay the full $350.00 filing fee by making
payments on an installment basis. 28 U.S.C. §
1915(b)(1); see also In re Tyler, 110 F.3d 528,
529-30 (8th Cir. 1997) (“[T]he [Prisoner Litigation
Reform Act] makes prisoners responsible for their filing fees
the moment the prisoner brings a civil action or files an
appeal.”). The full filing fee will be collected even
if the court dismisses the case because it is frivolous or
malicious, fails to state a claim on which relief may be
granted, or seeks money damages against a defendant who is
immune from such relief. 28 U.S.C. § 1915(e)(2).
must pay an initial partial filing fee in the amount of
twenty percent of the greater of his average monthly account
balance or average monthly deposits for the six months
preceding the filing of the complaint. 28 U.S.C. §
1915(b)(1). Based on the documents that plaintiff submitted,
the court finds that initial partial filing fee is $73.68.
(See Doc. No. 1 at 3). Plaintiff shall submit $73.68
by no later than thirty days from the date of this order. If
the court does not receive payment by this deadline, the
instant action shall be dismissed pursuant to Fed.R.Civ.P.
41(b) (permitting dismissal when a plaintiff either fails to
prosecute or fails to respond to an order of the court);
Hutchins v. A.G. Edwards & Sons, 116 F.3d 1256,
1259-60 (8th Cir. 1997) (explaining court's power to
dismiss an action). If necessary, plaintiff may request in a
written motion an extension of time to pay the initial
partial filing fee.
addition to the initial partial filing fee, plaintiff 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 statute
places the burden on the prisoner's institution to
collect the additional monthly payments and forward them to
the court. Specifically:
[a]fter payment of the initial partial filing fee, the
prisoner shall be required to make monthly payments of 20
percent of the preceding month's income credited to the
prisoner's account. The agency having custody of the
prisoner shall forward payments from the prisoner's
account to the clerk of the court each time the amount in the
account exceeds $10 until the filing fees are paid.
28 U.S.C. § 1915(b)(2). Therefore, after plaintiff pays
in full the initial partial filing fee, the remaining
installments shall be collected by the institution having
custody of the plaintiff. The clerk's office shall send a
copy of this order and the notice of collection of filing fee
to the appropriate official at the place where plaintiff is
Initial Review Standard
se complaint must be liberally construed. See Hughes v.
Rowe, 449 U.S. 5, 9 (1980); Haines v. Kerner,
404 U.S. 519, 520 (1972) (per curiam); Smith v. St.
Bernards Reg'l Med. Ctr., 19 F.3d 1254, 1255 (8th
Cir. 1994); see also Stone v. Harry, 364 F.3d 912,
914 (8th Cir. 2004) (explaining that, although pro se
complaints must be liberally construed, they must allege
sufficient facts to support the claims that are advanced). In
addition, unless the facts alleged are clearly baseless, they
must be weighed in favor of the plaintiff. See Denton v.
Hernandez, 504 U.S. 25, 32-33 (1992). A court, however,
can dismiss at any time a complaint filed in forma pauperis
if 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.
See 28 U.S.C. § 1915(e)(2); 28 U.S.C. §
is “frivolous” if it “lacks an arguable
basis in law or in fact.” Neitzke v. Williams,
490 U.S. 319, 325 (1989); accord Cokeley v. Endell,
27 F.3d 331, 332 (8th Cir. 1994). An action fails to state a
claim upon which relief can be granted if it does not plead
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). Accordingly, a court
may review the complaint and dismiss sua sponte those claims
that fail “‘to raise a right to relief above the
speculative level. . . .'”, Parkhurst v.
Tabor, 569 F.3d 861, 865 (8th Cir. 2009) (quoting
Bell Atl., 550 U.S. at 555), or that are premised on
meritless legal theories or clearly lack any factual basis,
see Neitzke, 490 U.S. at 325. See, e.g., Denton
v. Hernandez, 504 U.S. at 27 (considering
frivolousness); Myers v. Vogal, 960 F.2d 750, 751
(8th Cir. 1992) (concluding that a district court may dismiss
an action if an affirmative defense exists).
Initial Review Analysis
§ 1983 Standard
U.S.C. § 1983 provides, in relevant part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory . . .
subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the
party injured in an action at law, suit in equity, or other
proper proceeding for redress . . .
§ 1983 was designed to provide a “broad remedy for
violations of federally protected civil rights.”
Monell v. Dep't of Soc. Servs., 436 U.S. 658,
685 (1978). However, 42 U.S.C. § 1983 provides no
substantive rights. See Albright v. Oliver, 510 U.S.
266, 271 (1994); Graham v. Conner, 490 U.S. 386,
393-94 (1989); Chapman v. Houston Welfare Rights
Org., 441 U.S. 600, 617 (1979). “One cannot go
into court and claim a ‘violation of [42 U.S.C.] §
1983' - for [42 U.S.C.] § 1983 by itself does not
protect anyone against anything.” Chapman, 441
U.S. at 617. Rather, 42 U.S.C. § 1983 provides a remedy
for violations of all “rights, privileges, or
immunities secured by the Constitution and laws [of the
United States].” 42 U.S.C. § 1983; see also
Albright, 510 U.S. at 271 (42 U.S.C. § 1983
“merely provides a method for vindicating federal
rights elsewhere conferred.”); Graham, 490
U.S. at 393-94 (same); Maine v. Thiboutot, 448 U.S.
1, 4 (1980) (“Constitution and laws” means 42
U.S.C. § 1983 provides remedies for violations of rights
created by federal statute, as well as those created by the
Constitution.). To state a claim under 42 U.S.C. § 1983,
a plaintiff must establish: (1) the violation of a right
secured by the Constitution or laws of the United States and
(2) the alleged deprivation of that right was committed by a
person acting under color of state law. See West v.
Atkins, 487 U.S. 42, 48 (1988).
claims are contained primarily in his amended complaint (Doc.
No. 9), although he has also filed a number of
supplements/exhibits (Doc. Nos. 6-8). As noted above, Moment
appears to be making two general claims. The first relates to
the state court criminal case against him and the second is a
State Court Prosecution
first claim is that Scott Nelson, his state public defender
“commit[ted] treason” in his case. Moment also
claims that several state court judges acted inappropriately
in his case.
purposes of § 1983, the Supreme Court has held 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.”
Polk Cty. v. Dodson, 454 U.S. 312, 325 (1981).
See also 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”); and Rogers v. Bruntrager, 841 F.2d
853, 856 (8th Cir. 1988) (“[p]ublic 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”). However, defense attorneys do not enjoy
absolute immunity and an allegation of wrong doing outside
traditional attorney functions, such as a conspiracy, can
state a claim pursuant to § 1983. Smith v.
Bacon, 699 F.2d 434, 436 (8th Cir. 1983). In this case
it seems Moment is alleging, ...