United States District Court, S.D. Alabama, Southern Division
JUSTIN J. DEES, AIS #10042003, Plaintiff,
ASHLEY MOONEY RICH, et al., Defendants.
REPORT AND RECOMMENDATION
BERT W. MILLING, Jr., Magistrate Judge.
This action under 42 U.S.C. § 1983 brought by a pretrial detainee, Justin J. Dees, proceeding pro se and in forma pauperis, was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2(c)(4), and is now before the Court on Plaintiff's Complaint. (Doc. 12). After careful consideration of the record, it is recommended that this action be dismissed without prejudice prior to service of process as frivolous pursuant to 28 U.S.C. §§ 1915A and 1915(e)(2)(B(i).
I. Facts and Proceedings
Plaintiff is a pretrial detainee housed at Mobile County Metro Jail based on the charge of murder. (Doc. 12 at 4, 12). He originally commenced this § 1983 action on June 13, 2014, alleging constitutional violations such as willful and knowing violations of the Fifth, Sixth, Eighth and Fourteenth Amendments, against Mobile County District Attorney Ashley Rich, and Mobile County Circuit Clerk JoJo Schwarzauer, and an ineffective assistance of counsel claim against his then attorney Claude Patton. (Doc. 1). In conjunction with his original Complaint, Plaintiff filed a Motion for Leave to Proceed Without Prepayment of Fees (Doc. 4), which was ultimately granted. (Doc. 5). On July 11, 2014, Plaintiff filed a Motion to Amend Complaint (Doc. 7), seeking to add as a Defendant, Detective Victor E. Myles, who gave a statement against Plaintiff regarding his underlying murder charge and/or indictment. Plaintiff was allowed to amend his Complaint and was cautioned that he should not rely on his original Complaint because the Amended Complaint will supersede the previous one. (Doc. 10).
Plaintiff filed his Amended Complaint naming as Defendants, Mobile County District Attorney Ashley Mooney Rich, Mobile County Circuit Clerk JoJo Schwarzauer, and Prichard Police Officer Victor E. Myles. (Doc. 12). Plaintiff alleges that the Defendants knowingly, intentionally, deliberately and willfully violated Plaintiff's constitutional rights under the Fifth, Eighth, and Fourteenth Amendments. (Doc. 12 at 5-6). Plaintiff does not specifically name Attorney Claude Patton in the Amended Complaint, though he does seemingly re-allege an ineffective assistance of counsel claim with Claude Patton's name written in the bottom right corner of the "memorandum." (Doc. 12 at 9). Though Plaintiff was cautioned that the Amended Complaint supersedes the previous one, the Court will liberally construe his Amended Complaint as naming attorney Claude Patton as a Defendant who allegedly violated his right to effective assistance of counsel.
By way of the alleged general Fifth, Eighth, and Fourteenth Amendments claims, Plaintiff attempts to attack the evidence on which he was indicted. Specifically, he claims Officer Myles is "corrupt... [and] used a previous charge to create a more serious charge on the Plaintiff." (Doc. 12 at 12). Plaintiff claims that he was then indicted "with a more serious charge murder (sic} [by] the state... without any evidence know [sic] eye witness[, ] know [sic] gun[, ] nothing[, ] just a crazy ex girlfriend Rose Lee King and a corrupt police officer Victor E. Myles. Officer prejudice [sic]." ( Id. ). Lastly, Plaintiff submits a "memorandum" contesting his right to bail and stating that bail cannot be used as a device to keep a plaintiff in custody before trial, that to do so violates the excessive bail clause of the Eighth Amendemnt. (Doc. 12 at 8).
For relief, Plaintiff "ask [sic] that the Court dismiss charge [sic] with prejudice and order release of Plaintiff from custody." (Doc. 12 at 7).
Because Plaintiff was granted in forma pauperis status, the Court is required to engage in an ongoing review process to determine if the Amended Complaint is frivolous, malicious, or fails to state a claim upon which relief may be granted. 28. U.S.C. § 1915A. Based on this ongoing review, the Court finds that Plaintiff's Amended Complaint is due to be dismissed without prejudice as frivolous pursuant to § 1915(e)(2)(B)(i).
The federal statutes authorizing incarcerated plaintiffs to file complaints as paupers provide for dismissal of such complaints if they are found to be frivolous. See § 1915(e)(2)(B)(i)("Notwithstanding any filing fee, or any portion thereof that may have been paid, the court shall dismiss the case at any time if the court determines that-... the action... is frivolous or malicious;....")(emphasis added); 1915A(b)(1)("On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint-(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted;..."). 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 (1989). A claim is frivolous as a matter of law where it seeks to enforce a right that clearly does not exist, as is the situation in the present case. Id.; § 1915(e)(2)(B).
a. Claims for Relief Against Defense Counsel
An essential element of a § 1983 action requires a person acting under color state law committed the constitutional violation about which Plaintiff complains. Miles v. Freeman, 2014 WL 3767549, at *2 (M.D.Ala. July 31, 2014)( citing Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 (1999); Parratt v. Taylor, 451 U.S. 528 (1981); Willis v. Univ. Health Servs., Inc., 993 F.2d 837, 840 (11th Cir. 1993). "To state a claim for relief which is viable under § 1983, a plaintiff must assert both an alleged constitutional deprivation  and that the party charged with the deprivation is a person who may fairly be said to be a state actor." Id. (emphasis in original)(quotation marks omitted). An attorney who represents a defendant in criminal proceedings does not act under color of state law. Polk Cnty. v. Dodson, 454 U.S. 312 (1981); see also Mills v. Criminal Dis.t Court No. 3, 837 F.2d 677, 679 (5th Cir. 1988)("Private attorneys, even court-appointed attorneys, are not official state actors and... are not subject to suit under section 1983"). The claims asserted by Plaintiff against attorney Claude Patton therefore lack an arguable basis in law and seeks to enforce a right that clearly does not exist; therefore, Plaintiff's ineffective assistance of counsel claim is due to be summarily dismissed as frivolous under § 1915(e)(2)(B)(i). Miles, 2014 WL 3767549, at *2 ( citing Neitzke v. Williams, 490 U.S. 319, 327 (1989).
In the alternative, the Court finds Plaintiff's claims against attorney Claude Patton to be moot as a search of the docket sheet in Plaintiff's state court murder case indicates that attorney Claude Patton no longer represents Plaintiff, and Plaintiff was appointed a new defense attorney. See Alacourt docket entry dated June 17, 2014 setting Motion to Withdraw for hearing, said Motion disposed of by separate order dated June 17, 2014, and entry dated June 19, 2014, stating "Attorney for Defendant: ...