Opinion
No. 3:16-CV-1953-G
09-06-2016
RODERICK DION ROBINSON, Plaintiff, v. NIGEL HOWARD REDMON and ANTHONY PARGAS, Defendants.
FINDINGS CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b) and an order of the District Court, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge follow: I. Background
Plaintiff filed this complaint pursuant to 42 U.S.C. § 1983. He is proceeding pro se and the Court has granted him leave to proceed in forma pauperis. Defendants are defense attorney Nigel Howard Redmond and Home Depot security officer Anthony Pargas. Process has not issued pending preliminary screening.
Plaintiff states he was falsely convicted of robbery. He claims defense attorney Redmond told him that if he did not plead guilty he would receive a 99-year sentence at trial. Plaintiff also states that Defendant Anthony Pargas assaulted him when Pargas detained him for robbery. Plaintiff seeks money damages. II. Screening
Plaintiff's complaint is subject to preliminary screening under 28 U.S.C. § 1915A. That section provides in pertinent part:
The court shall review . . . as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity [and] [o]n review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from suit.28 U.S.C. § 1915A(a) and (b).
Under 28 U.S.C. § 1915(e), a district court may also summarily dismiss a complaint filed in forma pauperis if it concludes the action is : (1) frivolous or malicious; (2) fails to state a claim on which relief may be granted; or (3) seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). To state a claim upon which relief may be granted, a plaintiff must 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), and must plead those facts with enough specificity "to raise a right to relief above the speculative level . . . ." Id. at 555. "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, 129 S.Ct. 1937, 1949 (2009). III. Discussion
1. Anthony Pargas
To obtain relief under 42 U.S.C. § 1983, a plaintiff must prove two elements: (1) a deprivation of a right secured by the Constitution and laws of the United States; and (2) a deprivation of that right by a defendant acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155 (1978). The Fourteenth Amendment of the Constitution provides in part that "[n]o State shall . . . deprive any person of life, liberty, or property without due process of law." The Fourteenth Amendment prohibits only that action which may be fairly attributed to the States. Shelley v. Kramer, 334 U.S. 1, 13 (1948). The Fourteenth Amendment does not shield purely private conduct, however discriminatory or wrongful. Id.; see also Jackson v. Metropolitan Edison Co., 419 U.S. 345, 349 (1974); Adickes v. S.H. Kress & Co., 398 U.S. 144, 169 (1970). In this case, Plaintiff has failed to show that Anthony Pargas acted under color of state law. Plaintiff's § 1983 claims against this defendant should be dismissed.
Additionally, to the extent Plaintiff raises a state law claim against Pargas for assault, Plaintiff has failed to show the Court has jurisdiction over this claim. Plaintiff has failed to allege that the parties are residents of different states for the purpose of diversity jurisdiction under 28 U.S.C. § 1332. See Stafford v. Mobil Oil Corp., 945 F.2d 803, 804 (5 Cir. 1991) (holding that "[t]he burden of proving that complete diversity exists rests upon the party who seeks to invoke the court's diversity jurisdiction."). Plaintiff's claims against Pargas should be dismissed.
2. Nigel Howard Redmon
Plaintiff states his defense attorney, Redmon, forced him to plead guilty to the robbery charge by telling him he would receive a 99-year sentence if he proceeded to trial. Defense attorneys, however, are not "state actors" and cannot be sued under 42 U.S.C. § 1983. See Mills v. Criminal Dist. Court. No. 3, 837 F.2d 677, 679 (5 Cir. 1988); Eaves v. Texas, 427 Fed. Appx. 378, 379 (5 Cir. 2011). Plaintiff's claims against Defendant Redmon should be summarily dismissed. 3. Heck v. Humphrey
Plaintiff's claims that he was unlawfully arrested and convicted are barred by the Supreme Court's decision in Heck v. Humphrey, 512 U.S. 477 (1994). Heck holds that a prisoner cannot bring a § 1983 action challenging his conviction or confinement unless and until the reason for his continued detention has been reversed on direct appeal, expunged by executive order, or otherwise declared invalid by a state tribunal or federal court. Heck also bars damage claims, which, if successful, would necessarily imply the invalidity of a conviction or pending charge. Hamilton v. Lyons, 74 F.3d 99, 103 (5 Cir. 1996).
Plaintiff's claims that he was unlawfully arrested and convicted necessarily implies the invalidity of Plaintiff's conviction. Plaintiff, however, states the conviction has not been declared invalid. (Magistrate Judge's Questionnaire, Answer No. 2.) Hence, no § 1983 cause of action has yet accrued and these claims should be dismissed with prejudice until the Heck conditions are met. See Johnson v. McElveen, 101 F.3d 423, 424 (5 Cir. 1996) (stating dismissal should be with prejudice until Heck conditions are met). IV. Recommendation
The Court recommends that the complaint be dismissed pursuant to 28 U.S.C. §§ 1915A and 1915(e).
Signed this 6 day of September, 2016.
/s/_________
PAUL D. STICKNEY
UNITED STATES MAGISTRATE JUDGE
INSTRUCTIONS FOR SERVICE AND
NOTICE OF RIGHT TO APPEAL/OBJECT
A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of this report and recommendation must file specific written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge's report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).