Opinion
CASE NO. 1:14 CV 1359
11-07-2014
MAURICE SINKFIELD, Plaintiff, v. JOHN D. MIZANIN, JR., Defendant.
MEMORANDUM OF OPINION AND ORDER
On June 23, 2014, Plaintiff pro se Maurice Sinkfield filed this in forma pauperis action under 42 U.S.C. § 1983 against Defendant John D. Mizanin, Jr., an attorney who represented him in his criminal case in the Ohio Court of Common Pleas. Plaintiff alleges Defendant did not provide him with information concerning the case. He further alleges, in essence, that Defendant was not diligent in his representation of Plaintiff. Plaintiff seeks "return of bonds and money created and profited," and his immediate release from custody.
Plaintiff was convicted of Robbery with a Firearm Specification pursuant to a Guilty Plea in November 2012. State v. Sinkfield, Cuy. Cty. Comm. Pls. No. CR-12-564071-A; http://cpdocket.cp.cuyahogacounty.us/CR_CaseInformation_Docket.
Although pro se pleadings are liberally construed, Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam), the district court is required to dismiss an action under 28 U.S.C. § 1915(e) if it fails to state a claim upon which relief can be granted, or if it lacks an arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319 (1989); Hill v. Lappin, 630 F.3d 468, 470 (6th Cir. 2010).
An in forma pauperis claim may be dismissed sua sponte, without prior notice to the plaintiff and without service of process on the defendant, if the court explicitly states that it is invoking section 1915(e) [formerly 28 U.S.C. § 1915(d)] and is dismissing the claim for one of the reasons set forth in the statute. Chase Manhattan Mortg. Corp. v. Smith, 507 F.3d 910,915 (6th Cir. 2007); Gibson v. R.G. Smith Co., 915 F.2d 260, 261 (6th Cir. 1990); Harris v. Johnson, 784 F.2d 222, 224 (6th Cir. 1986).
The gist of the Complaint appears to be an assertion that Plaintiff was denied effective assistance of counsel in his criminal case. As such, he is implicitly challenging the validity of his conviction and resulting confinement in an Ohio penal institution. The Supreme Court has held that, when a prisoner challenges "the very fact or duration of his physical imprisonment, [ ... ] his sole federal remedy is a writ of habeas corpus." Preiser v. Rodriguez, 411 U.S. 475, 501 (1973). In other words, a complaint seeking relief under 42 U.S.C. § 1983 is not a permissible alternative to a petition for writ of habeas corpus if the Plaintiff essentially challenges the legality of his confinement. Id. Further, a criminal defense attorney who acts in that capacity on behalf of a criminal defendant does not act under color of stale law for purposes of a 42 U.S.C. § 1983 action. Polk County v. Dodson, 454 U.S. 312 (1981); Deas v. Potts, 547 F.2d 800 (4th Cir. 1976).
Accordingly, this action is dismissed under 28 U.S.C. § 1915(e), without prejudice to any valid state law claim Plaintiff may have under the facts alleged. The Court certifies, pursuant to 28 U.S.C. § 1915(e), that an appeal from this decision could not be taken in good faith.
IT IS SO ORDERED.
/s/_________
DONALD C. NUGENT
UNITED STATES DISTRICT JUDGE
JUDGMENT ENTRY
This Court having contemporaneously filed its Memorandum of Opinion in this case, it is therefore ORDERED that this action is dismissed. Further, the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith.
/s/Donald C. Nugent
DONALD C. NUGENT
UNITED STATES DISTRICT JUDGE
ORDER
Pursuant to 28 U.S.C. § 1915(b), the request to proceed in forma pauperis is granted and the total filing fee in the amount of $350 is due. Further, an initial partial fee in the amount of $5.60 is due and should be deducted from plaintiff's prisoner account, when funds are available therein, until the initial partial fee is paid. Thereafter, the prison cashier's office shall deduct, and forward to the Court. 20% of the preceding month's income credited to the prisoner's account each time the amount in the account exceeds $10.00 until the full fee has been paid. The Clerk is directed to issue a copy of this order and the attached instructions, which are hereby incorporated herein, to the plaintiff and the prison cashier's office. The Clerk is further directed to forward a copy of this order to the Court's financial office.
The prison cashier's office shall not send payments aggregating more than the amount of the full fee.
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IT IS SO ORDERED.
/s/_________
DONALD C. NUGENT
UNITED STATES DISTRICT JUDGE
STAPLE CHECK HERE
INSTRUCTIONS FOR PAYMENT OF PRISONER FILING FEE AND SUBSEQUENT INSTALLMENT PAYMENTS
The prisoner shown as the plaintiff on the attached order has filed a civil action in forma pauperis in this court and owes the court a filing fee. Pursuant to 28 U.S.C. § 1915, the fee is to be paid as follows:
The initial partial fee listed on the attached order, IF ANY, should be deducted by the prison cashier's office from the prisoner's account, when funds are available therein, until the initial partial fee is paid. A check (or checks) in the appropriate amount(s) should be attached to a form like that accompanying these instructions and sent to the address indicated below.If the prisoner has filed more than one complaint in this district, (s)he is required to pay a fee in each case. The prison cashier's office shall make the monthly calculations and payments for each case in which it receives an order granting in forma pauperis status and these instructions. The prisoner's name and case number must be noted on each remittance. Checks are to be made payable to:
Following the payment of the initial partial fee, IF ANY, and continuing thereafter until the full fee has been paid, monthly payments of 20% of the preceding month's income credited to the prisoner's account should be deducted and forwarded to the court each time the amount in the account exceeds $10.
Clerk, U.S. District Court Checks are to be sent to:
Prisoner Accounts Receivable
Carl B. Stokes U.S. Courthouse
801 W. Superior Avenue
Cleveland, Ohio 44113-1830