Opinion
Civil Action 00-574-RV-L
April 12, 2001
REPORT AND RECOMMENDATION
Plaintiff, an Alabama prison inmate proceeding pro se and informa pauperis, filed a complaint under 42 U.S.C. § 1983. This action has been referred to the undersigned for appropriate action pursuant to 28 U.S.C. § 636 (b)(1)(B) and Local Rule 72.2(c)(4). It is recommended that this action be dismissed without prejudice, prior to service of process, pursuant to 28 U.S.C. § 1915 (e)(2)(B)(i) as frivolous.
I. Complaint (Doc. 6) .
Plaintiff named as the sole defendant, Cindy Powell, his criminal defense counsel.
Plaintiffs allegations against defendant Powell are:
Ineffective of Counsel Assitiants I hired her on 1-4-99 until 11-15-99 She wouldn't come and see for 8 months I then had to pay her $500.00 Dollars before she did come! My life was in Danger and she miss Lead me and wouldn't answer me nor my family Call or Letters! (sic)
For relief, plaintiff seeks $35,000. II. Standards of Review Under 28 U.S.C. § 1915 (e)(2)(B) .
The complaint before the Court is plaintiffs first amended complaint. The Court ordered plaintiff to amend his initial complaint because his initial complaint was not an original (Doc. 3). Plaintiff was advised that his amended complaint would supersede his initial complaint (Doc. 3). Notwithstanding, due to the brevity of the amended complaint, the Court has examined plaintiffs initial complaint to determine if it contains additional information.
In the initial complaint, plaintiff also complains that his eyewitness was never subpoenaed and his case was never investigated. Plaintiff further asserts that two weeks before trial, defendant Powell along with another attorney approached plaintiff with a plea bargain for a 25-year sentence. Plaintiff maintains that on the day of trial, defendant Powell told plaintiffs 73-year-old mother, who previously had a heart attack, that if plaintiff did not accept the plea bargain, the next time she would see plaintiff would be at her funeral. Plaintiff contends because his mother would not stop crying, he signed the papers. Plaintiff avers that his motion to withdraw his plea was denied and his direct appeal was denied because he was late in filing it. Lastly, plaintiff claims to have paid $2000.
Because plaintiff is proceeding informa pauperis, the Court has reviewed plaintiffs complaint under 28 U.S.C. § 1915 (e)(2)(B). Under § 1915(e)(2)(B)(i), a claim may be dismissed as "frivolous where it lacks an arguable basis in law or fact." Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 183 1-32, 104 L.Ed.2d 338 (1989). A claim is frivolous as a matter of law where, inter alia, the defendants are immune from suit, id. at 327, 109 S.Ct. at 1833, the claim seeks to enforce a right which clearly does not exist, id., or there is an affirmative defense that would defeat the claim, such as the statute of limitations, Clark v. Georgia Pardons Paroles Bd., 915 F.2d 636, 640 n. 2 (11th Cir. 1990). Judges are accorded "not only the authority to dismiss [as frivolous] a claim based on indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless." Neitzke, 490 U.S. at 327, 109 S.Ct. at 1833. Moreover, a complaint may be dismissed under 28 U.S.C. § 1915 (e)(2)(B)(ii) for failure to state a claim upon which relief may be granted "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)).
The predecessor to this section was 28 U.S.C. § 19 15(d). Even though Congress made many substantive changes to § 19 15(d) when it enacted 28 U.S.C. § 191 5(b)(2)(B), the frivolity and the failure to state a claim analysis contained in Neitzke v. Williams, 490 U.S. 319, 109 S.Ct.1827, 104 L.Ed.2d 338 (1989), was unaltered. See Brown v. Bargery, 207 F.3d 863, 866 n. 4 (6th Cir. 2000).
III. Discussion .
In order to state a claim under 42 U.S.C. § 1983, a plaintiff must establish: "(1) . . . the conduct complained of was committed by a person acting under color of state law; and (2) . . . this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States." Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1913, 68 L.Ed.2d 420 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 330-31, 106 S.Ct. 662, 664, 88 L.Ed.2d 662 (1986). Criminal defense counsel, court-appointed or retained, do not act under color of state law in a § 1983 action in the absence of a conspiracy. Polk County v. Dodson, 454 U.S. 312, 325, 102 S.Ct. 445, 453, 70 L.Ed.2d 509 (1981) (court-appointed counsel); Slavin v. Curry, 574 F.2d 1256, 1265 (5th Cir.) (retained counsel), modified on other grounds, 583 F.2d 779 (5th Cir. 1978), overruled on other grounds, Sparks v. Duval County Ranch Co., 604 F.2d 976 (5th Cir. 1979), aff'd, Dennis v. Sparks, 449 U.S. 24, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980). Only when a conspiracy exists between criminal defense counsel and a state actor may criminal defense counsel be found to be acting under color of state law. Tower v. Glover, 467 U.S. 914, 923, 104 S.Ct. 2820, 2826, 81 L.Ed.2d 758 (1984). In the present action, based on the allegations, it is clear that defendant Powell did not act under color of state law. Accordingly, plaintiff does not have a claim against defendant Powell that arises under § 1983.
IV. Conclusion .
Based upon the foregoing reason, it is recommended that this action be dismissed without prejudice, prior to service of process, pursuant to 28 U.S.C. § 191 5(e)(2)(B)(i) as frivolous.
The attached sheet contains important information regarding objections to the Report and Recommendation.