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

(e)(2)(B). Initial Partial Filing Fee Pursuant to

(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.

(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.

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

(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

, a plaintiff must demonstrate a plausible claim for relief, which is more than a “mere possibility of misconduct.” Ashcroft v. Iqbal,

(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.”

. 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.

. 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

, 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,

, 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

. See Polk Cty. v. Dodson,

(1981) (stating that “a public defender does not act to a defendant in a criminal proceeding”); Myers v. Vogal,

(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

(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

_5-