Opinion
Case No. 05-73608.
January 24, 2006
OPINION AND ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION
Plaintiff, a state prisoner at the Parnall Correctional Facility in Jackson, Michigan, filed this pro se civil rights complaint for declaratory and injunctive relief pursuant to 42 U.S.C. § 1983. On November 18, 2005, this Court issued an opinion and order dismissing Plaintiff's lawsuit pursuant to 28 U.S.C. § 1915A. The Court concluded that Plaintiff's claims were frivolous or failed to state a claim for which relief may be granted. Presently before the Court is Plaintiff's timely filed motion for reconsideration filed pursuant to Rule 59 of the Federal Rules of Civil Procedure.
Plaintiff named the following individuals or entities as defendants in his complaint: The Michigan Department of Corrections ("MDOC"), the Michigan Parole Board, John Rubitschun, John Remillet, Robert Wilson, Wayne Groat, Robert Owens, and Melissa Redmond. As to the MDOC and Michigan Parole Board, the Court concluded that Plaintiff's claims must be dismissed based on Eleventh Amendment Immunity. See 11/18/05 Order at 4-5. As to John Rubitschun, Robert Wilson, Wayne Groat, and Robert Owens, the Court dismissed Plaintiff's claims because his complaint failed to set forth any allegations against them. See id. at 5 n. 4. With respect to John Remillet, the Court concluded that Plaintiff failed to allege any conduct constituting a violation of Plaintiff's constitutional rights. See id. at 5-7. Finally, as to Melissa Redmond, the Court held that, as a private attorney, she is not a "state actor" and therefore her actions cannot support a violation of Section 1983. See id. at 4.
Further supporting this Court's evaluation of Plaintiff's complaint is the "conclusion" paragraph in which Plaintiff summarizes his complaint. In this section, Plaintiff only refers to the conduct of Remillet and his representation by ineffective assistance of counsel.
In his motion for reconsideration, Plaintiff does not challenge the Court's dismissal of his claims against the MDOC, Michigan Parole Board, Rubitschun, Wilson, Groat, or Owens. With respect to Remillet and Redmond, however, Plaintiff claims the Court has made several palpable errors.
The essence of Plaintiff's complaint against Remillet is his claim that Remillet prepared a report of the preliminary hearing that "was falsified." See Mot. ¶¶ 6-7. The Supreme Court has held that a parolee or probationer is entitled to certain procedural protections pursuant to the Due Process Clause at a preliminary hearing:
At the preliminary hearing, a probationer or parolee is entitled to notice of the alleged violations of probation or parole, an opportunity to appear and to present evidence in his own behalf, a conditional right to confront adverse witnesses, an independent decisionmaker, and a written report of the hearing.Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S. Ct. 1756, 1761 (1973) (citing Morrissey v. Brewer, 408 U.S. 471, 487, 92 S. Ct. 2593, 2603 (1972)). While the Court expects that the written report of the hearing should be accurate, it does not believe that a constitutional violation arises if the report is inaccurate or even false.
The determination of whether to revoke an individual's parole is not based on the evidence or information presented at the preliminary hearing. The issue resolved at the preliminary hearing is whether there is probable cause to hold the parolee for the final parole revocation decision by the parole board. Gagnon, 411 U.S. at 786, 93 S. Ct. at 1761. A separate and independent hearing is required and it is the "evidence" presented at this hearing that is the basis for the ultimate decision whether to revoke parole. Id. Plaintiff acknowledges that a final revocation hearing was held and that the hearing officer at the final revocation hearing decided whether to revoke his parole.
Plaintiff also alleges that he was denied the right to have an attorney represent him at the preliminary hearing. See Mot. ¶ 8. The Supreme Court has refused to find an absolute right to counsel at parole revocation hearings, holding that the need for counsel "must be made on a case-by-case basis in the exercise of sound discretion by the state authority charged with responsibility for administering the probation and parole system." Gagnon, 411 U.S. at 790, 93 S. Ct. at 1763. Based on this holding, the Court cannot find that a parolee has a federal constitutional right to an attorney at a preliminary revocation hearing, particularly where the parolee was represented by an attorney at the final revocation hearing.
Construing the complaint in a light most favorable to Plaintiff — as the Court did in evaluating his complaint — Plaintiff potentially raises a claim that his constitutional rights were violated because he was represented at the final revocation hearing by "[c]ounsel of the Defendant's choice" and that this counsel was "ineffective." There is no allegation in the complaint, however, as to which individual is responsible for this "constitutional violation" — presumably that being the appointment of ineffective counsel. In this Court's view, the only defendants named in the complaint that arguably could be responsible for this conduct are the MDOC or the Michigan Parole Board. As set forth previously, however, both defendants are entitled to Eleventh Amendment immunity.
With respect to Plaintiff's claims against attorney Redmond, the complaint does not contain any allegation that this defendant was a "state actor" subject to suit under Section 1983. Plaintiff simply alleges that Redmond was "Defendant's choice." The fact that the State may have selected Redmond to represent Plaintiff and may have provided compensation for her services, does not make her a "state actor." As one court has stated: "A court-appointed attorney, like any retained counsel, serves his client. Because an attorney represents his client, and not the state, the attorney's action does not constitute `state action' within the meaning of 42 U.S.C. § 1983." Alexander v. Zarrilli, No. 86-4991, 1986 WL 10810 (E.D. Pa. Sept. 29, 1986) (unpublished op.); see also Horton v. Martin, No. 04-1142, 2005 WL 1384306, at *2 (6th Cir. June 7, 2005) (unpublished op.) (upholding the district court's dismissal of the plaintiff's Section 1983 claims against the attorney who represented him at his parole revocation hearing because the attorney was not a state actor subject to liability under Section 1983).
These unpublished opinions are attached as Exhibits 1 and 2 to this Opinion and Order.
For the reasons set forth above,
IT IS ORDERED, that Plaintiff's motion for reconsideration is DENIED.