UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION
DEWEY AUSTIN BARNETT II, ) ) Plaintiff, ) ) v. ) Case No. 4:25-cv-01206-JSD ) ANDREW FOX, ) ) Defendant. )
MEMORANDUM AND ORDER This matter is before the Court on the motion of Plaintiff Dewey Austin Barnett II, an inmate at Southeast Correctional Center (SECC), for leave to commence this civil action without prepaying fees or costs. (ECF No. 3). The Court will grant the motion and assess an initial partial filing fee of $1.00. Furthermore, after reviewing the pleadings in this matter, the Court will dismiss this action for failure to state a claim. See 28 U.S.C. § 1915(e)(2)(B). Plaintiff’s motion to appoint counsel will be denied as moot. (ECF No. 2). 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 is required to pay the full amount of the filing fee. If the prisoner has insufficient funds in his 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 period. After payment of the initial partial filing fee, the prisoner is required to make monthly payments of 20 percent of the preceding month’s income credited to his 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 account exceeds $10, until the filing fee is fully paid. Id. Plaintiff has not submitted a prison account statement. As a result, the Court will require Plaintiff to pay an initial partial filing fee of $1.00. See Henderson v. Norris, 129 F.3d 481, 484
(8th Cir. 1997) (when a prisoner is unable to provide the Court with a certified copy of his prison account statement, the Court should assess an amount “that is reasonable, based on whatever information the court has about the prisoner’s finances.”). If Plaintiff is unable to pay the initial partial filing fee, he must submit a copy of his prison account statement in support of his claim. Legal Standard on Initial Review Under 28 U.S.C. § 1915(e)(2), the Court is required to dismiss a complaint filed in forma pauperis if it is frivolous, malicious, or fails to state a claim upon which relief may be granted. An action is frivolous if it “lacks an arguable basis in either law or fact.” Neitzke v. Williams, 490 U.S. 319, 328 (1989). An action fails to state a claim upon which relief may be granted if it does not plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570 (2007). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 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 assume the veracity of well-pleaded facts but need not accept as true “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Id. at 678 (citing Twombly, 550 U.S. at 555). This Court must liberally construe complaints filed by laypeople. Estelle v. Gamble, 429 U.S. 97, 106 (1976). This means that “if the essence of an allegation is discernible,” the court should “construe the complaint in a way that permits the layperson’s claim to be considered within the proper legal framework.” Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015)
(quoting Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004)). However, even self-represented complaints must 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). Federal courts are not required to assume facts that are not alleged, Stone, 364 F.3d at 914-15, nor are they required to interpret procedural rules to excuse mistakes by those who proceed without counsel. See McNeil v. United States, 508 U.S. 106, 113 (1993). The Complaint Plaintiff Dewey Barnett, II, brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his civil rights. (ECF No. 1). He names his state public defender, Andrew Fox, as the sole Defendant in this action. (Id.)
Plaintiff accuses Defendant of failing to provide “a fair proceeding,” failing to have documents struck from the record, and violating rules of professional conduct. (Id. at 3-4). He also complains that Defendant failed to “state claims in a civil action for where relief could be granted.” (Id. at 3). Plaintiff does not state which criminal or civil matter his accusations relate to. Based on a review of Case.net, Missouri’s online case management system, Plaintiff represented himself at a criminal trial in which he was found guilty of Assault in the First Degree and Armed Criminal Action. State v. Barnett, 18JE-CR03039-01 (Jefferson County). Defendant, a state public defender, was appointed to represent Plaintiff in his post-conviction relief proceedings for approximately four months. Plaintiff voluntarily dismissed his post-conviction relief proceedings on May 23, 2025. Plaintiff claims several injuries including extended incarceration, defamation of character, loss of property, and loss of family members, among others. (Id. at 4). He seeks all
remedies this Court thinks proper, including a writ of habeas corpus to issue “sua sponte.” (Id.). Discussion Plaintiff is a self-represented litigant currently incarcerated at SECC who brings this civil action pursuant to 42 U.S.C. § 1983. Because he is proceeding in forma pauperis, the Court has reviewed his complaint under 28 U.S.C. § 1915. Based on that review, and for the reasons discussed below, the Court will dismiss Plaintiff’s complaint. 1 Plaintiff accuses Defendant of failing to properly represent him in his prior proceedings. Because Plaintiff’s defense attorney did not act under of color of state law, he cannot be liable for any violation of Plaintiff’s constitutional rights under § 1983.
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION
DEWEY AUSTIN BARNETT II, ) ) Plaintiff, ) ) v. ) Case No. 4:25-cv-01206-JSD ) ANDREW FOX, ) ) Defendant. )
MEMORANDUM AND ORDER This matter is before the Court on the motion of Plaintiff Dewey Austin Barnett II, an inmate at Southeast Correctional Center (SECC), for leave to commence this civil action without prepaying fees or costs. (ECF No. 3). The Court will grant the motion and assess an initial partial filing fee of $1.00. Furthermore, after reviewing the pleadings in this matter, the Court will dismiss this action for failure to state a claim. See 28 U.S.C. § 1915(e)(2)(B). Plaintiff’s motion to appoint counsel will be denied as moot. (ECF No. 2). 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 is required to pay the full amount of the filing fee. If the prisoner has insufficient funds in his 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 period. After payment of the initial partial filing fee, the prisoner is required to make monthly payments of 20 percent of the preceding month’s income credited to his 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 account exceeds $10, until the filing fee is fully paid. Id. Plaintiff has not submitted a prison account statement. As a result, the Court will require Plaintiff to pay an initial partial filing fee of $1.00. See Henderson v. Norris, 129 F.3d 481, 484
(8th Cir. 1997) (when a prisoner is unable to provide the Court with a certified copy of his prison account statement, the Court should assess an amount “that is reasonable, based on whatever information the court has about the prisoner’s finances.”). If Plaintiff is unable to pay the initial partial filing fee, he must submit a copy of his prison account statement in support of his claim. Legal Standard on Initial Review Under 28 U.S.C. § 1915(e)(2), the Court is required to dismiss a complaint filed in forma pauperis if it is frivolous, malicious, or fails to state a claim upon which relief may be granted. An action is frivolous if it “lacks an arguable basis in either law or fact.” Neitzke v. Williams, 490 U.S. 319, 328 (1989). An action fails to state a claim upon which relief may be granted if it does not plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570 (2007). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 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 assume the veracity of well-pleaded facts but need not accept as true “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Id. at 678 (citing Twombly, 550 U.S. at 555). This Court must liberally construe complaints filed by laypeople. Estelle v. Gamble, 429 U.S. 97, 106 (1976). This means that “if the essence of an allegation is discernible,” the court should “construe the complaint in a way that permits the layperson’s claim to be considered within the proper legal framework.” Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015)
(quoting Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004)). However, even self-represented complaints must 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). Federal courts are not required to assume facts that are not alleged, Stone, 364 F.3d at 914-15, nor are they required to interpret procedural rules to excuse mistakes by those who proceed without counsel. See McNeil v. United States, 508 U.S. 106, 113 (1993). The Complaint Plaintiff Dewey Barnett, II, brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his civil rights. (ECF No. 1). He names his state public defender, Andrew Fox, as the sole Defendant in this action. (Id.)
Plaintiff accuses Defendant of failing to provide “a fair proceeding,” failing to have documents struck from the record, and violating rules of professional conduct. (Id. at 3-4). He also complains that Defendant failed to “state claims in a civil action for where relief could be granted.” (Id. at 3). Plaintiff does not state which criminal or civil matter his accusations relate to. Based on a review of Case.net, Missouri’s online case management system, Plaintiff represented himself at a criminal trial in which he was found guilty of Assault in the First Degree and Armed Criminal Action. State v. Barnett, 18JE-CR03039-01 (Jefferson County). Defendant, a state public defender, was appointed to represent Plaintiff in his post-conviction relief proceedings for approximately four months. Plaintiff voluntarily dismissed his post-conviction relief proceedings on May 23, 2025. Plaintiff claims several injuries including extended incarceration, defamation of character, loss of property, and loss of family members, among others. (Id. at 4). He seeks all
remedies this Court thinks proper, including a writ of habeas corpus to issue “sua sponte.” (Id.). Discussion Plaintiff is a self-represented litigant currently incarcerated at SECC who brings this civil action pursuant to 42 U.S.C. § 1983. Because he is proceeding in forma pauperis, the Court has reviewed his complaint under 28 U.S.C. § 1915. Based on that review, and for the reasons discussed below, the Court will dismiss Plaintiff’s complaint. 1 Plaintiff accuses Defendant of failing to properly represent him in his prior proceedings. Because Plaintiff’s defense attorney did not act under of color of state law, he cannot be liable for any violation of Plaintiff’s constitutional rights under § 1983. “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 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 (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
1 The Court notes that this action is virtually identical to another case Plaintiff filed, 4:25-cv-00307-SPM, which was dismissed on May 13, 2025, for failure to state a claim. suit under section 1983”). For these reasons, Plaintiffs allegations against Defendant are subject to dismissal. Accordingly, IT IS HEREBY ORDERED that Plaintiff's motion seeking leave to commence this action without prepaying fees or costs [ECF No. 3] is GRANTED. IT IS FURTHER ORDERED that, within thirty (30) days of the date of this Order, Plaintiff must pay an initial filing fee of $1.00. 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 appoint counsel [ECF No. 2] is DENIED as moot. IT IS FURTHER ORDERED that Plaintiff's claims in this action are DISMISSED without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B). A separate Order of Dismissal shall accompany this Memorandum and Order. Dated this 27" day of August, 2025.
LE q Lf | LftnaA fea 7. STEPHEN N. LIMBAUGH, JR. SENIOR UNITED STATES DISTRICT JUDGE