United States District Court, M.D. Alabama, Eastern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
SUSAN
RUSS WALKER UNITED STATES MAGISTRATE JUDGE
I.
INTRODUCTION
Plaintiff
Michael Dorsey is an inmate incarcerated at the Covington
County Jail in Andalusia, Alabama. He brings this pro
se 42 U.S.C. § 1983 action against attorney Larry
Grissett. Dorsey seeks to challenge acts of the named
defendant during his representation of Dorsey in state court
criminal proceedings that Dorsey claims violated his Fourth,
Sixth, and Fourteenth Amendment rights. For relief, Dorsey
requests damages of $30, 000. Doc. 1.
Upon
review, the court concludes dismissal of this case prior to
service of process is appropriate under 28 U.S.C. §
1915(e)(2)(B).[1]
II.
DISCUSSION
A.
Standard of Review
Because
Dorsey is proceeding in forma pauperis, the court
reviews his complaint under 28 U.S.C. §
1915(e)(2)(B).[2] Under § 1915(e)(2)(B), a court must
dismiss a complaint proceeding in forma pauperis if
it determines that an action is frivolous, malicious, fails
to state a claim upon which relief may be granted, or seeks
monetary relief against a defendant immune from such relief.
A claim is frivolous when it “has little or no chance
of success”-that is, when it appears “from the
face of the complaint that the factual allegations are
clearly baseless or that the legal theories are indisputably
meritless.” Carroll v. Gross, 984 F.2d 392,
393 (11th Cir. 1993). A claim is frivolous if it “lacks
an arguable basis in law or fact.” Neitzke v.
Williams, 490 U.S. 319, 325 (1989). It is frivolous as a
matter of law where, among other things, the defendants are
immune from suit, id. at 327, the claim seeks to
enforce a right that clearly does not exist, id., or
there is an affirmative defense that would defeat the claim,
such as the statute of limitations. Clark v. Georgia
Pardons & Paroles Bd., 915 F.2d 636, 640 n.2 (11th
Cir. 1990). Courts are accorded “not only the authority
to dismiss [as frivolous] a claim based on indisputably
meritless legal theory, but also the unusual power to pierce
the veil of the complaint's factual allegations and
dismiss those claims whose factual contentions are clearly
baseless.” Neitzke, 490 U.S. at 327.
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 “only if it is clear that no
relief could be granted under any set of facts that could be
proved consistent with the allegations.” Hishon v.
King & Spalding, 467 U.S. 69, 73 (1984) (citing
Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). Review on
this ground is governed by the same standards as for
dismissals for failure to state a claim under Rule 12(b)(6)
of the Federal Rules of Civil Procedure. See Jones v.
Bock, 549 U.S. 199, 215 (2007). To state a claim upon
which relief may be granted, “a complaint must contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation
marks omitted). To state a claim to relief that is plausible,
the plaintiff must plead factual content that “allows
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Id. The
allegations should present a “‘plain
statement' possess[ing] enough heft to ‘show that
the pleader is entitled to relief.'” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 557 (2007).
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678. When a
successful affirmative defense, such as a statute of
limitations, appears on the face of a complaint, dismissal
for failure to state a claim is also warranted.
Jones, 549 U.S. at 215.
Pro
se pleadings “are held to a less stringent
standard than pleadings drafted by attorneys” and are
liberally construed. Boxer X v. Harris, 437 F.3d
1107, 1110 (11th Cir. 2006). However, they “must be
enough to raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555. And 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). While, the court treats factual allegations as true,
it does not treat as true conclusory assertions or a
recitation of a cause of action's elements.
Iqbal, 566 U.S. at 681. Finally, 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. 1989).
B.
Defendant Larry Grissett
Dorsey
challenges the conduct of Defendant Larry Grissett, his
court-appointed attorney, alleging that counsel performed
deficiently during Dorsey's criminal trial. An essential
element of a 42 U.S.C. §1983 action is that a person
acting under color of state law committed the constitutional
violation about which the plaintiff complains. American
Manufacturers Mutual Ins. Co. v. Sullivan, 526 U.S. 40
(1999); Parratt v. Taylor, 451 U.S. 527 (1981);
Willis v. University Health Services, Inc., 993 F.2d
837, 840 (11th Cir. 1993); Harvey v. Harvey, 949
F.2d 1127 (11th Cir. 1992). To state a viable claim for
relief 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.” American
Manufacturers, 526 U.S. at 50 (internal quotation marks
omitted). 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 (1981); Mills v.
Criminal District Court No. 3, 837 F.2d 677, 679 (5th
Cir. 1988) (“[P]rivate attorneys, even court-appointed
attorneys, are not official state actors and . . . are not
subject to suit under section 1983.”). 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. Dodson, 454 U.S. at 319, 325.
“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.
Dorsey's
claims against Grissett are based on allegations that during
his representation of Dorsey during his criminal proceedings,
Grissett failed to provide competent assistance, failed to
advise Dorsey of any effective defense strategies, and failed
to review discovery. Dorsey's allegations against
Grissett fail to allege he did anything other than perform
the traditional function as counsel to a criminal defendant.
Grissett, therefore, cannot be held to be acting under color
of state law. Dodson, at 325; Pearson v.
Myles, 189 Fed. App'x 865, 866 (11th Cir. 2006)
(holding that the public defender did not act under color of
state law for purposes of § 1983 claim, where she
performed only “traditional lawyer functions in her
representation of [plaintiff]”). In light of the
foregoing, the complaint against Defendant Grissett is due to
be dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii).
See Neitzke, 490 U.S. at 327.
C.
The Challenge to Plaintiff's Conviction
If
Dorsey seeks to challenge the validity of a criminal
conviction and/or sentence imposed upon him by the Circuit
Court for Covington County, Alabama, such claims go to the
fundamental legality of his confinement and provide no basis
for relief at this time. Edwards v. Balisok, 520
U.S. 641, 646 (1997); Heck v. Humphrey, 512 U.S. 477
(1994); Preiser v. Rodriguez, 411 U.S. 475, 500
(1973). In Heck, the Supreme Court held that a claim
for damages challenging the legality of a prisoner's
conviction or confinement is not cognizable in a 42 U.S.C.
§ 1983 action “unless and until the [order
requiring such confinement] is reversed, expunged,
invalidated, or impugned by the grant of a writ of habeas
corpus” and complaints containing such claims must
therefore be dismissed. 512 U.S. at 483-489. The Court
emphasized that “habeas corpus is the exclusive remedy
for a [confined individual] who challenges the fact or
duration of his confinement and seeks immediate or speedier
release, even though such a claim may come within the literal
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