Hernandez v. Boller

          REPORT AND RECOMMENDATION

          P. BRADLEY MURRAY, UNITED STATES MAGISTRATE JUDGE

         Plaintiff, an Alabama prison inmate proceeding pro se and in forma 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 S.D. Ala. GenLR 72(a)(2)(R). 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)(ii) for failure to state a claim upon which relief can be granted.

         I. Complaint.

         Plaintiff Hernandez complains that on December 6, 1982, he received a sentence of life without parole when a nolo contendere conviction from Florida was used.^[1] (Doc. 1 at 4). He maintains that this was contrary to Alabama law and that his criminal defense attorney, Defendant Boller, did not object, which is reflected in the transcript. (Id. at 4, 5). Now, thirty-four years later, Mobile County Circuit Court Judge Jay A. York reversed Plaintiff's sentence on December 21, 2016 and, at a resentencing hearing, imposed a sentence of life imprisonment. (Id. at 4, 6).^[2] For relief, Plaintiff wants $1 million for thirty-four years of incarceration. (Id. at 7).

         II. Standards of Review Under 28 U.S.C. § 1915(e)(2)(B).

         Because Plaintiff is proceeding in forma pauperis, the Court is reviewing his 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, 1831-32, 104 L.Ed.2d 338 (1989).^[3] A claim is frivolous as a matter of law where the claim seeks to enforce a right that clearly does not exist. Id.

         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. Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997). To avoid dismissal for failure to state a claim upon which relief can be granted, the allegations must show plausibility. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 1966, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). That is, “[f]actual allegations must be enough to raise a right to relief above the speculative level” and must be a “‘plain statement' possess[ing] enough heft to ‘sho[w] that the pleader is entitled to relief.'” Twombly, 550 U.S. at 555, 557, 127 S.Ct. at 1965, 1966 (second brackets in original).

         When considering a pro se litigant's allegations, a court gives them a liberal construction holding them to a more lenient standard than those of an attorney. Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). However, a court does not have “license . . . to rewrite an otherwise deficient pleading [by a pro se litigant] in order to sustain an action.” GJR Investments v. County of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998), overruled on other grounds by Iqbal, 556 U.S. 662 (2009). Furthermore, the court treats factual allegations as true, but it does not treat as true conclusory assertions or a recitation of a cause of action's elements. Iqbal, 566 U.S. at 681, 129 S.Ct. at 1951. In addition, a pro se litigant “is subject to the relevant law and rules of court including the Federal Rules of Civil Procedure.” Moon v. Newsome, 863 F.2d 835, 837 (11th Cir.), cert. denied, 493 U.S. 863 (1989).

         III. Analysis.

         “A successful section 1983 action requires a showing that the conduct complained of (1) was committed by a person acting under color of state law and (2) deprived the complainant of rights, privileges, or immunities secured by the Constitution or laws of the United States.” Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir. 1992) (emphasis added). Criminal defense counsel, however, whether retained or court-appointed, is not deemed to be a person who acts under color of state law in a § 1983 action. Polk County v. Dodson, 454 U.S. 312, 325, 102 S.Ct. 445, 453, 70 L.Ed.2d 509 (1981) (public defender); Slavin v. Curry, 574 F.2d 1256, 1264 (5th Cir.) (retained counsel), ^[4] overruled on other grounds by Sparks v. Duval Cty. Ranch Co., 604 F.2d 976 (5th Cir. 1979). Court-appointed, criminal defense counsel is viewed as carrying out the traditional functions of a lawyer representing a criminal defendant, which previously was a private function fulfilled by retained counsel. Polk Cty., 454 U.S. at 319, 325, 102 S.Ct. at 450, 453. “Except for the source of payment, [the] relationship [between criminal defendant and defense counsel is] identical to that existing between any other lawyer and client.” Id. at 318, 102 S.Ct. at 449.

         Thus, when Plaintiff complains about Defendant Boller's failure to represent him effectively by not objecting, Defendant Boller was performing the traditional function as counsel to a criminal defendant. Defendant Boller, therefore, cannot be held to be acting under color of state law. Id. at 325, 102 S.Ct. at 453; Gastine v. Williams, 476 Fed.Appx. 361, 364 (11th Cir. 2012) (unpublished). Accordingly, this action is due to be dismissed without prejudice for failure to state a claim upon which relief can be granted.

         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. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief can be granted.

         NOTICE OF RIGHT ...