Opinion
No. 19-1257-JDT-cgc
01-08-2020
MARK TAYLOR, Plaintiff, v. JOHN MILES, Defendant.
ORDER DISMISSING CASE, DENYING AS MOOT MOTION TO PROCEED IN FORMA PAUPERIS, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
On November 4, 2019, Plaintiff Mark Taylor, who at the time of filing was incarcerated at the Madison County Criminal Justice Complex in Jackson, Tennessee, filed a pro se complaint pursuant to 42 U.S.C. § 1983 and a motion to proceed in forma pauperis. (ECF Nos. 1 & 2.) After Taylor submitted the necessary documents, the Court issued an order granting leave to proceed in forma pauperis and assessing the civil filing fee pursuant to the Prison Litigation Reform Act (PLRA), 28 U.S.C. §§ 1915(a)-(b). (ECF No. 8.) Taylor sues attorney John Miles.
On December 16, 2019, Taylor notified the Court that he had been released from custody and provided his new address. (ECF No. 9.) Taylor also filed another motion to proceed in forma pauperis on December 20, 2019, using the longer form required of non-prisoners. (ECF No. 11.) Because this case is being dismissed, that motion is DENIED as moot.
Taylor alleges that he hired Miles to represent him in a state-court criminal matter, in which he was charged with unlawfully possessing a firearm, vandalism, and reckless endangerment. (ECF No. 1 at PageID 2.) Taylor paid Miles $3,500 but alleges that Miles did nothing, and he never heard from Miles after paying him. (Id.) In an attachment to the complaint, Taylor details some of the work Miles did as his attorney, including appearing at his second court appearance and advising him to accept a blind plea agreement. (ECF No. 1-1 at PageID 4-5.) Taylor asserts that Miles "never did anything to get me a plea deal," and Taylor was forced to represent himself at trial. (Id. at PageID 6.)
Taylor seeks $25,000 as a "full refund" from Miles's representation and as compensatory damages. (ECF No. 1 at PageID 3; ECF No. 1-1 at PageID 6.)
The Court is required to screen prisoner complaints and to dismiss any complaint, or any portion thereof, if the complaint
(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or28 U.S.C. § 1915A(b); see also 28 U.S.C. § 1915(e)(2)(B).
(2) seeks monetary relief from a defendant who is immune from such relief.
In assessing whether the complaint in this case states a claim on which relief may be granted, the standards under Fed. R. Civ. P. 12(b)(6), as stated in Ashcroft v. Iqbal, 556 U.S. 662, 677-79 (2009), and in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007), are applied. Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). The Court accepts the complaint's "well-pleaded" factual allegations as true and then determines whether the allegations "plausibly suggest an entitlement to relief.'" Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011) (quoting Iqbal, 556 U.S. at 681). Conclusory allegations "are not entitled to the assumption of truth," and legal conclusions "must be supported by factual allegations." Iqbal, 556 U.S. at 679. Although a complaint need only contain "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), Rule 8 nevertheless requires factual allegations to make a "'showing,' rather than a blanket assertion, of entitlement to relief." Twombly, 550 U.S. at 555 n.3.
"Pro se complaints are to be held 'to less stringent standards than formal pleadings drafted by lawyers,' and should therefore be liberally construed." Williams, 631 F.3d at 383 (quoting Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004)). Pro se litigants, however, are not exempt from the requirements of the Federal Rules of Civil Procedure. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989); see also Brown v. Matauszak, 415 F. App'x 608, 612, 613 (6th Cir. Jan. 31, 2011) (affirming dismissal of pro se complaint for failure to comply with "unique pleading requirements" and stating "a court cannot 'create a claim which [a plaintiff] has not spelled out in his pleading'" (quoting Clark v. Nat'l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975))).
Taylor filed his complaint pursuant to 42 U.S.C. § 1983, which provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .To state a claim under § 1983, a plaintiff must allege two elements: (1) a deprivation of rights secured by the "Constitution and laws" of the United States (2) committed by a defendant acting under color of state law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150 (1970).
Taylor may not sue his attorney under § 1983. Courts have uniformly held that private attorneys are not state actors who can be sued under § 1983. See Polk County v. Dodson, 454 U.S. 312, 318 (1981) ("[A] lawyer representing a client is not, by virtue of being an officer of the court, a state actor 'under color of state law' within the meaning of § 1983."); Mulligan v. Schlachter, 389 F.2d 231, 233 (6th Cir. 1968) (private attorney who is appointed by the court does not act under color of state law); Deas v. Potts, 547 F.2d 800 (4th Cir. 1976) ("A private attorney who is retained to represent a criminal defendant is not acting under color of state law, and therefore is not amendable to suit under § 1983.").
The same analysis applies if Miles was appointed as Taylor's public defender. See Powers v. Hamilton Cnty. Public Defender Comm'n, 501 F.3d 592, 611 (6th Cir. 2007) (quoting Polk Cnty., 454 U.S. at 325 ("[P]ublic defenders do not 'act under color of state law when performing a lawyer's traditional functions as counsel to a defendant in a criminal proceeding.'")).
To the extent Taylor is attempting to assert a claim of ineffective assistance of counsel, that claim is misplaced. Claims of ineffective assistance must be brought in a habeas petition under 28 U.S.C. § 2254 and not in an action under § 1983. See Preiser v. Rodriguez, 411 U.S. 475, 488-90 (1973); Moran v. Sondalle, 218 F.3d 647, 650-51 (7th Cir. 2000).
Furthermore, to the extent Taylor seeks to assert a claim of legal malpractice under Tennessee state law, the Court declines to exercise supplemental jurisdiction under 28 U.S.C. § 1367(c)(3). The Court also does not have independent diversity jurisdiction under 28 U.S.C. § 1332. Taylor does not allege that he and Defendant Miles are citizens of different states; nor does he meet the amount in controversy requirement, as he seeks compensation of only $25,000.
For these reasons, Taylor's complaint must be dismissed in its entirety for failure to state a claim on which relief may be granted.
The Sixth Circuit has held that a district court may allow a prisoner to amend his complaint to avoid a sua sponte dismissal under the PLRA. LaFountain v. Harry, 716 F.3d 944, 951 (6th Cir. 2013); see also Brown v. R.I., 511 F. App'x 4, 5 (1st Cir. 2013) (per curiam) ("Ordinarily, before dismissal for failure to state a claim is ordered, some form of notice and an opportunity to cure the deficiencies in the complaint must be afforded."). Leave to amend is not required where a deficiency cannot be cured. Gonzalez-Gonzalez v. United States, 257 F.3d 31, 37 (1st Cir. 2001) ("This does not mean, of course, that every sua sponte dismissal entered without prior notice to the plaintiff automatically must be reversed. If it is crystal clear that . . . amending the complaint would be futile, then a sua sponte dismissal may stand."); Curley v. Perry, 246 F.3d 1278, 1284 (10th Cir. 2001) ("We agree with the majority view that sua sponte dismissal of a meritless complaint that cannot be salvaged by amendment comports with due process and does not infringe the right of access to the courts."). In this case, the Court concludes that leave to amend is not warranted.
In conclusion, the Court DISMISSES this case in its entirety for failure to state a claim on which relief can be granted, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). Leave to amend is DENIED.
Pursuant to 28 U.S.C. § 1915(a)(3) and Federal Rule of Appellate Procedure 24(a)(3), the Court must also consider whether an appeal by Taylor in this case would be taken in good faith. The good faith standard is an objective one. Coppedge v. United States, 369 U.S. 438, 445 (1962). It would be inconsistent for a district court to determine that a complaint should be dismissed prior to service on the Defendants but has sufficient merit to support an appeal in forma pauperis. See Williams v. Kullman, 722 F.2d 1048, 1050 n.1 (2d Cir. 1983). The same considerations that lead the Court to dismiss this case for failure to state a claim also compel the conclusion that an appeal would not be taken in good faith. Therefore, leave to appeal in forma pauperis is DENIED.
For analysis under 28 U.S.C. § 1915(g) of future filings, if any, by Taylor, this is the second dismissal of one of his cases as frivolous or for failure to state a claim. This strike shall take effect when judgment is entered. See Coleman v. Tollefson, 135 S. Ct. 1759, 1763-64 (2015).
Taylor previously filed Taylor v. State of Tenn., et al., No. 1:19-cv-1248-JDT-cgc (W.D. Tenn. Jan. 7, 2020) (dismissed for failure to state a claim).
The Clerk is directed to prepare a judgment. IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE