Roundtree v. Davis, No. 1:2013cv02975 - Document 8 (N.D. Ga. 2014)
Court Description: OPINION AND ORDER ADOPTING the 6 Final Report and Recommendation and DISMISSING this action. Signed by Judge William S. Duffey, Jr on 11/14/2013. (anc)
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FRANKLIN ROUNDTREE, Plaintiff, v. 1:13-cv-2975-WSD SHAREE DAVIS, Defendant. OPINION AND ORDER This matter is before the Court on Magistrate Judge J. Clay Fuller s Final Report and Recommendation ( R&R ) [6] on Plaintiff Franklin Roundtree s civil rights claims under 42 U.S.C. § 1983. I. BACKGROUND Plaintiff Franklin Roundtree ( Plaintiff ), proceeding pro se, submitted an undated letter to the Court, which was docketed on September 4, 2013, as a 28 U.S.C. § 2241 habeas corpus petition. Plaintiff alleged that Defendant Sharee Davis ( Defendant ) committed fraud in connection with a plea Plaintiff entered in a criminal action. On September 11, 2013, the Magistrate Judge ordered the Clerk to convert Plaintiff s case into a 42 U.S.C. § 1983 civil rights complaint and conducted a frivolity review under 28 U.S.C. § 1915A. In a separate action, filed on September 3, 2013, Plaintiff identifies Defendant as his public defender. See Roundtree v. Hill, 1:13-cv-2953-WSD (N.D. Ga., docketed Sept. 3, 2013). Plaintiff demands his immediate release. He states that Defendant committed fraud by failing to secure for Plaintiff a satisfactory bond for his release. Plaintiff also alleges that Defendant has refused to answer his calls. The Magistrate Judge thus construed Plaintiff s allegations against Defendant as a civil rights action under 42 U.S.C. § 1983. On October 30, 2013, the Magistrate Judge concluded that Plaintiff failed to state a claim on which relief can be granted because Defendant, as Plaintiff s public defender, has immunity under 42 U.S.C. § 1983 for issues related to her performance as an attorney. The Magistrate Judge further concluded that Plaintiff s demand to be released is required to be addressed through a habeas corpus petition under 28 U.S.C. § 2241. Plaintiff has filed a separate habeas petition, see Roundtree v. Hill, 1:13-cv-2953-WSD (N.D. Ga., docketed Sept. 3, 2013). The Magistrate Judge therefore concluded that Plaintiff s demand for release in this action should be dismissed. On October 30, 2013, a copy of the R&R was mailed to Plaintiff. Plaintiff did not object to the R&R. 2 II. DISCUSSION A. Legal Standard After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject, or modify a magistrate judge s report and recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Crim. P. 59; Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982) (per curiam), cert. denied, 459 U.S. 1112 (1983). A district judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. 28 U.S.C. § 636(b)(1). With respect to those findings and recommendations to which a party has not asserted objections, the Court must conduct a plain error review of the record. United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983), cert. denied, 464 U.S. 1050 (1984). Because Plaintiff did not object to the R&R, the Court reviews it for plain error. B. Analysis The Supreme Court noted that a public defender does not act under color of state law when performing a lawyer s traditional functions as counsel to a defendant in a criminal proceeding. Polk County v. Dodson, 454 U.S. 312, 325 (1981) (ordering the dismissal of respondent s § 1983 complaint against his public 3 defender); see also Burns v. Jorandby, 332 F. App x 602, 603 (11th Cir. 2009) (citing Dodson and affirming dismissal of complaint against plaintiff s former public defender: [N]either defendant was acting under color of state law, and neither may be sued under section 1983 ). Because Plaintiff s claim relates to Defendant s performance as Plaintiff s public defender, Defendant may not be held liable under 42 U.S.C. §1983. The Court finds no plain error with the Magistrate Judge s conclusion that Plaintiff failed to state a claim. Plaintiff s action is thus required to be dismissed. A plaintiff s demand to be released may only asserted in a federal habeas petition. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (holding that when a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus ). Plaintiff has filed a separate habeas corpus action under 28 U.S.C. § 2241. See Roundtree v. Hill, 1:13-cv-2953-WSD (N.D. Ga., docketed Sept. 3, 2013). Plaintiff s release demand for release in this action is improper. III. CONCLUSION Accordingly, for the foregoing reasons, IT IS HEREBY ORDERED that Magistrate Judge J. Clay Fuller s Final 4 Report and Recommendation [6] is ADOPTED, and this action is DISMISSED. SO ORDERED this 14th day of January, 2014. 5
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