United States District Court, S.D. Alabama, Southern Division
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
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