Opinion
CASE NO. 03-CV-70679-DT
February 24, 2003
OPINION AND ORDER OF SUMMARY DISMISSAL
I. Introduction
The Court has before it Plaintiff Albert Lawrence Bomer, Jr.'s pro se civil rights complaint filed pursuant to 42 U.S.C. § 1983. This Court has granted Plaintiff's application to proceed without prepayment of the filing fee. See 28 U.S.C. § 1915(a). Plaintiff is a state prisoner currently confined at the Chippewa Correctional Facility in Kincheloe, Michigan. In his complaint, Plaintiff alleges that his appellate defense counsel failed to obtain transcripts and to properly represent him on an appeal in state court thereby violating his constitutional rights. Plaintiff seeks monetary damages. Having reviewed Plaintiff's complaint, the Court now dismisses it pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to state claims upon which relief may be granted.
II. Discussion
Plaintiff has been granted in forma pauperis status. Under the Prison Litigation Reform Act ("PLRA"), the Court is required to sua sponte dismiss an in forma pauperis complaint before service on a defendant if it determines that the action is frivolous or malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief against a defendant who is immune from such relief. 42 U.S.C. § 1997(e)(c); 28 U.S.C. § 1915(e)(2)(B). A complaint is frivolous if it lacks an arguable basis either in law or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke v. Williams, 490 U.S. 319, 325 (1989).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that (1) he was deprived of a right, privilege, or immunity secured by the federal Constitution or laws of the United States, and (2) the deprivation was caused by a person acting under color of state law. Flagg Bros. v. Brooks, 436 U.S. 149, 155-57 (1978); Brock v. McWherter, 94 F.3d 242, 244 (6th Cir. 1996). A pro se civil rights complaint is to be construed liberally. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Jones v. Duncan, 840 F.2d 359, 361 (6th Cir. 1988). Despite the liberal pleading standard accorded pro se plaintiffs, the Court finds that Plaintiff's complaint is subject to dismissal under 28 U.S.C. § 1915(e)(2)(b) for failure to state a claim upon which relief may be granted.
A claim under § 1983 is an appropriate remedy for a state prisoner challenging a condition of his imprisonment. Preiser v. Rodriguez, 411 U.S. 475, 499 (1973). In this case, however, it is clear that Plaintiff is actually seeking habeas corpus relief, inasmuch as his claims address the validity of his imprisonment. Ruling on the claims raised would necessarily imply the invalidity of his continued confinement. Such claims are not properly brought under 42 U.S.C. § 1983. See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) (holding that a state prisoner does not state a cognizable civil rights claim challenging his conviction or imprisonment if a ruling on his claim would necessarily render his continuing confinement invalid, until and unless the reason for his continued confinement has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal, or has been called into question by a federal court's issuance or a writ of habeas corpus under 28 U.S.C. § 2254). This holds true regardless of the relief sought by the plaintiff. Id. at 487-89. Given that Plaintiff challenges his appellate representation and his continued confinement, his § 1983 claims must be dismissed.
Additionally, Plaintiff's appellate attorney is not subject to suit under § 1983 since he is not a state actor. See Polk Co. v. Dodson, 454 U.S. 312, 325 (1981) ("[A] public defender does not act under color of state law when performing a lawyer's traditional functions as counsel to a defendant in a criminal proceeding."). Accordingly, Plaintiff's claim against Mr. Mueckenheim must be dismissed.
III. Conclusion
For the reasons stated, the Court concludes that Plaintiff has failed to state a claim upon which relief may be granted. Accordingly, the Court DISMISSES Plaintiff's complaint pursuant to 28 U.S.C. § 1915(e)(2)(b).
Additionally, the Court concludes that an appeal from this order would be frivolous and therefore cannot be taken in good faith. See 28 U.S.C. § 1915(a)(3); Coppedge v. United States, 369 U.S. 438, 445 (1962); McGore v. Wrigglesworth, 114 F.3d 601, 610-11 (6th Cir. 1997).