Opinion
Civil No. 04-2666 (PAM/RLE).
April 7, 2005
MEMORANDUM AND ORDER
This matter is before the Court on Defendants' Motion to Dismiss. For the reasons that follow, the Court grants the Motion.
BACKGROUND
Plaintiff Michael Ashby is a former Minnesota state prison inmate. On September 8, 1992, Ashby was convicted of first-degree assault inflicting great bodily harm. Ashby represented himself at trial, although the trial court appointed an attorney to serve as standby counsel. After his conviction, he brought several appeals relating to his conviction and sentence.
Ashby was also convicted of first-degree murder on May 3, 1996. The 1996 conviction is not at issue in this matter.
His first appeal, which he commenced in October 1992, challenged his conviction. State of Minn. v. Ashby, No. C8-92-2133, 1993 WL 276892 (Minn.Ct.App. July 27, 1993). Defendant Lyonel Norris, an Assistant Minnesota State Public Defender, represented Ashby in the appeal. On appeal, Norris argued that the trial court erred in allowing Ashby to represent himself, claiming that his waiver of counsel was neither knowing nor intelligent. Ashby also raised a number of issues in his pro se briefs. The Minnesota Court of Appeals upheld Ashby's conviction on the issue of representation and waiver. The Court of Appeals also found that the issues raised by Ashby in his pro se briefs did not "provide any reasonable basis" to overturn the conviction. Id. at *3.
Ashby also brought post-conviction petitions in September 1993 and October 1994. In those petitions, Ashby advanced several arguments, including that he was incompetent to represent himself at the trial court and that the state suppressed evidence relating to the identity of the shooter. The Minnesota Court of Appeals denied the petitions. See Ashby v. State of Minn., No. C2-01-1679, 2002 WL 977444, at *2 (Minn.Ct.App. May 14, 2002) (discussing procedural history of Ashby's post-conviction petitions).
Ashby brought another appeal in February 1995, challenging Norris's representation on Ashby's appeal. See Ashby v. State of Minn., No. C4-95-412,1995 WL 465542 (Minn.Ct.App. Aug. 8, 1995). The Minnesota Court of Appeals upheld the denial of postconviction relief, concluding that Norris adequately represented Norris. Id. at *1. In addition, the Court of Appeals noted that, although Ashby alleged that his appellate counsel failed to make certain arguments, those arguments were in Ashby's pro se briefs. Id.
In July 2001, Ashby made a final petition for post-conviction relief, arguing that the trial court erred in allowing him to represent himself because he was not mentally competent to do so and by suppressing evidence that another person was the shooter. The Minnesota Court of Appeals again affirmed Ashby's conviction and sentence. Ashby, 2002 WL 977444, at *3-4.
Ashby commenced this action in May 2004. He alleges that Norris inadequately represented him in his 1992 appeal by failing to argue that the trial court erroneously excluded evidence of an on-scene identification of another individual who had been identified as the shooter. Ashby also sues Defendant John Stuart, the Minnesota State Public Defender, claiming that Stuart "failed to train and/or supervise . . . Norris, as a representative of the state public defender's office." (Compl. ¶ 3a.) For relief, Ashby seeks $5 million in damages for the alleged deprivation of his rights and $5 million in punitive damages.
DISCUSSION
Ashby brings this action under 42 U.S.C. § 1983. Defendants move for dismissal on several grounds. Norris argues that he did not act under color of state law when representing Ashby in the state criminal proceedings, and therefore the § 1983 claim against him lacks merit. Stuart argues that vicarious liability based on respondeat superior is not cognizable under § 1983. Finally, both argue that the action is barred by the statute of limitations.
A. Standard of Review
Defendants bring this Motion pursuant to Federal Rule of Civil Procedure 12(b)(6). For the purposes of the Motion to Dismiss, the Court takes all facts alleged in the Complaint as true. See Westcott v. Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990). The Court must construe the allegations in the Complaint and reasonable inferences arising from the Complaint favorably to Ashby. See Morton v. Becker, 793 F.2d 185, 187 (8th Cir. 1986). A motion to dismiss will be granted only if "it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him to relief." Id.; see also Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
B. Color of State Law
Ashby alleges that Norris deprived him of his right to effective assistance of counsel by failing to present certain arguments on appeal. "To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the United States Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under the color of state law." West v. Atkins, 487 U.S. 42, 48 (1988) (citation omitted); see also Chapman v. Musich, 726 F.2d 405, 407 (8th Cir. 1984) (to set forth a claim under § 1983, a plaintiff must establish that the defendant's intentional actions under color of state law deprived the plaintiff of his rights).
Generally, a public employee acts under color of state law while acting in his official capacity or while exercising his responsibilities pursuant to state law. West, 487 U.S. at 50. However, a public defender does not act under color of state law when performing traditional functions as counsel. Polk County v. Dodson, 454 U.S. 312, 324-25 (1981). In Polk County, the United States Supreme Court distinguished a public defender from the typical government employee and state actor. It noted that while performing his duties, the public defender retains all the essential attributes of a private attorney, including his "professional independence," which the state is constitutionally obliged to respect. Id. at 321-22. Thus, unlike most government employees, a public defender operates within a sphere of independence allowing him to function not as the state's emissary — but as its opponent. Id. at 318-19.
In Polk County, a prisoner brought a § 1983 claim, alleging that his public defender failed to adequately represent him in an appeal to the state supreme court. After inquiring into the case, the public defender moved for permission to withdraw as counsel on the ground that the appeal was wholly frivolous. The state supreme court granted the motion and dismissed the appeal. The prisoner claimed that the public defender's actions deprived him of his right to counsel, subjected him to cruel and unusual punishment, and denied him due process of law. 454 U.S. at 314-15.
In representing Ashby, Norris was acting as counsel and therefore was not acting under color of state law. Moreover, his decision not to advance frivolous arguments on appeal (i.e., that another shooter had been identified) does not violate the Constitution. Id. at 326 (a policy of not pursuing frivolous cases is constitutional).
C. Vicarious Liability
Ashby claims that Stuart is vicariously liable for Norris' allegedly ineffective representation and because Stuart failed to supervise and train Norris. This claim also fails as a matter of law for two reasons. First, § 1983 does not support a claim based on respondeat superior. Id. at 325 (citing Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 694 (1978)); see also Willis-Bey v. Brummer, 577 F. Supp. 881, 882 (E.D. Mo. 1984) (state public defender commission director not vicariously liable for public defender's alleged ineffective representation) (citing Ronnei v. Butler, 597 F.2d 564, 566 (8th Cir. 1979)).
Second, Ashby has not alleged any facts to support a finding of deliberate indifference. To establish liability under § 1983, a claimant must establish that official policy is "the moving force of the constitutional violation." Polk County, 436 U.S. at 325 (citing Monell, 436 U.S. 694). Thus, to establish liability under a failure to train or supervise claim, there must be deliberate indifference in establishing the policy. City of Canton v. Harris, 489 U.S. 378, 392 (1989). Ashby now claims that the lack of training and supervision constitutes deliberate indifference. However, the Complaint contains no such allegations. Moreover, the Complaint also fails to allege that the Board of Public Defense has an official policy relating to training or supervising. Finally, Ashby has not alleged any facts indicating that Stuart was deliberately indifferent. Thus, his claim that Stuart failed to supervise and train Norris is equivalent to a respondeat superior theory of liability, which does not create a cause of action. See City of Canton, 489 U.S. at 390-91 (alleging that an employee was "unsatisfactorily trained will not alone suffice to fasten liability on the [state], for the [employee's] shortcomings may have resulted from factors other than a faulty training program.") (citation omitted).
D. Statute of Limitations
Defendants also argue that this action is barred by the statute of limitations. Courts refer to the appropriate state statute of limitations to determine the limitation period in a § 1983 action. Hardin v. Straub, 490 U.S. 536, 539 (1989). Thus, the six-year limitations period under Minn. Stat. § 541.05 applies to this action. Egerdahl v. Hibbing Cmty. Coll., 72 F.3d 616, 618 n. 3 (8th Cir. 1995). Ashby knew of the alleged inadequate representation when Ashby represented him on appeal to the Minnesota Court of Appeals. Thus, the statute of limitations began to accrue on July 27, 1993, when the Minnesota Court of Appeals denied the appeal. He commenced this action on May 11, 2004 — five years too late.
Ashby argues that he is not time barred because the statute of limitations was tolled while he was incarcerated. He relies onHardin v. Straub, 490 U.S. 536 (1989), where the United States Supreme Court held that the statute of limitations period in § 1983 actions are to be determined by referring to the state statute of limitations and tolling rules. As a result, theHardin court found that an inmate's claims were not barred by Michigan's three-year statute of limitations because Michigan law provided a tolling period for prisoners. Id. at 542-44.
Unlike Michigan, Minnesota law does not toll claims for prisoners. Minn. Stat. § 541.05, which governs the statute of limitations for § 1983 claims in Minnesota, contains no tolling provisions. Thus, it is irrelevant that Ashby was incarcerated for eleven years. His claims are barred by the six-year statute of limitations.
CONCLUSION
Plaintiff Michael Ashby's claims under 42 U.S.C. § 1983 are not cognizable against either Defendant. Moreover, his claims are barred by the statute of limitations. Accordingly, based on all files, records, and proceeding herein, IT IS HEREBY ORDERED that Defendants' Motion to Dismiss (Clerk Doc. No. 10) is GRANTED.
LET JUDGMENT BE ENTERED ACCORDINGLY.