Opinion
Civil Action No. 3:06-CV-0333-D.
January 29, 2008
ORDER
After making an independent review of the pleadings, files, and records in this case, the February 26, 2007 findings, conclusions, and recommendation of the magistrate judge, the November 15, 2007 supplemental findings, conclusions, and recommendation of the magistrate judge, and the objections of plaintiff William Stephen Solesbee ("Solesbee"), the court concludes that the findings and conclusions, as supplemented, are correct. It is therefore ordered that the findings, conclusions, and recommendation of the magistrate judge are adopted.
Although the magistrate judge's original and supplemental findings, conclusions, and recommendations do not require elaboration, it bears emphasizing that Solesbee's lawsuit is of necessity a Bivens action. The Constitution does not itself provide a private civil remedy for a person whose constitutional rights have been violated. When a state actor is involved, 42 U.S.C. § 1983 provides the remedial mechanism. When a federal actor is involved, a Bivens action provides such a remedy in limited circumstances. But Solesbee cannot obtain Bivens relief because none of the defendants is a federal actor or has allegedly engaged in conduct that would subject the person to liability as a coconspirator with a federal actor. Regarding Solesbee's criminal lawyer (a criminal lawyer is rarely considered a federal actor due to his role as defense counsel), the usual remedy is through a suit for legal malpractice. That is a claim that is based on state law, not federal law, and is litigated in state court unless, unlike here, there is diversity jurisdiction. And with respect to the several defendants who are sued based on their conduct as trial witnesses, even if they did qualify as federal actors, they are entitled absolute immunity from liability.
In sum, the magistrate judge correctly recommends that this lawsuit be dismissed under 28 U.S.C. § 1915(e)(2)(B).
SO ORDERED.