Bray v. Page

Full title: KASHMIR LaJUAN BRAY, Plaintiff, v. TERRY EDWARD PAGE, Defendant

Court: United States District Court, N.D. Indiana, Hammond Division

Date published: Nov 2, 2006

Cause No. 2:06-CV-324 AS (N.D. Ind. Nov. 2, 2006)

Opinion

Cause No. 2:06-CV-324 AS.

November 2, 2006

OPINION AND ORDER

ALLEN SHARP, District Judge

Kasmir LaJuan Bray, a pro se prisoner, submitted a complaint under 42 U.S.C. § 1983. Pursuant to 28 U.S.C. § 1915A, the court must review the merits of a prisoner complaint and dismiss it if the action is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. FED. R. CIV. PRO. 12(b)(6) provides for the dismissal of a complaint, or any portion of a complaint, for failure to state a claim upon which relief can be granted. The court will apply the same standard under § 1915A as when addressing a motion under Rule 12(b)(6). Weiss v. Colley, 230 F.3d 1027 (7th Cir. 2000).

A claim may be dismissed only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Allegations of a pro se complaint are held to less stringent standards than formal pleadings drafted by lawyers. Accordingly, pro se complaints are liberally construed.

In order to state a cause of action under 42 U.S.C. § 1983, the Supreme Court requires only two elements: First, the plaintiff must allege that some person has deprived him of a federal right. Second, he must allege that the person who has deprived him of the right acted under color of state law. These elements may be put forth in a short and plain statement of the claim showing that the pleader is entitled to relief. FED. R. CIV. P. 8(a)(2). In reviewing the complaint on a motion to dismiss, no more is required from plaintiff's allegations of intent than what would satisfy Rule 8's notice pleading minimum and Rule 9(b)'s requirement that motive and intent be pleaded generally.

Alvarado v. Litscher, 267 F.3d 648, 651 (7th Cir. 2001) (citations, quotation marks and ellipsis omitted).

Mr. Bray alleges that Terry Edward Page, his public defender, did not properly represent him when Mr. Page told the Plaintiff that he could receive as much as 66 to 75 years in prison if convicted. In addition, Mr. Page asked the court to deny Plaintiff's pro se motion to withdraw his guilty plea. A defense attorney, even an appointed public defender, does not act under color of state law. Polk County v. Dodson, 454 U.S. 312 (1981). Because he did not act under color of state law, he cannot be sued under § 1983 and must be dismissed.

For the foregoing reasons, the court DISMISSES this case pursuant to 28 U.S.C. 1915A.

SO ORDERED.