Blakes v. Duke, No. 2:2015cv13013 - Document 7 (E.D. Mich. 2015)

Court Description: MEMORANDUM OPINION and ORDER of Summary Dismissal re: 1 Complaint. Signed by District Judge Arthur J. Tarnow. (CPic)

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Blakes v. Duke Doc. 7 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION DESRIK BLAKES, Case Number: 2:15-CV-13013 HONORABLE ARTHUR J. TARNOW Plaintiff, v. DANIEL J. DUKE, Defendant. / OPINION AND ORDER OF SUMMARY DISMISSAL I. Pending before the Court is Plaintiff Desrik Blakes’ pro se civil rights complaint filed under 42 U.S.C. § 1983. Plaintiff is proceeding without prepayment of the filing fee in this action under 28 U.S.C. § 1915(a)(1). Plaintiff’s claims relate to criminal proceedings in Midland County Circuit Court. According to Plaintiff, he is awaiting trial on several felony charges. Plaintiff names a single defendant, Daniel J. Duke, his criminal defense attorney, and seeks monetary relief. For the reasons which follow, the complaint is dismissed for failure to state a claim upon which relief may be granted. II. Federal Rule of Civil Procedure 8(a) requires that a complaint set forth “a short and plain statement of the claim showing that the pleader is entitled to relief,” as well as “a demand for the relief sought.” Fed. R. Civ. P. 8(a)(2), (3). The purpose of this rule is to “give the defendant fair notice of what the . . . claim is and the grounds upon which it Dockets.Justia.com rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957) and Fed. R. Civ. P. 8(a)(2)). While this notice pleading standard does not require “detailed” factual allegations, Twombly, 550 U.S. at 555, it does require more than the bare assertion of legal conclusions or “an unadorned, thedefendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Id. (quoting Twombly, 550 U.S. at 555). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557). Plaintiff has been granted leave to proceed without prepayment of the filing fee for this action. Under the Prison Litigation Reform Act (“PLRA”), the court is required to sua sponte dismiss an in forma pauperis complaint before service on a defendant if it determines that the action is frivolous or malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief against a defendant who is immune from such relief. See 42 U.S.C. § 1997e(c); 28 U.S.C. § 1915(e)(2)(B). A complaint is frivolous if it lacks an arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). To state a federal civil rights claim, a plaintiff must allege that: (1) he was deprived of a right, privilege, or immunity secured by the federal Constitution or laws of the United States, and (2) the deprivation was caused by a person acting under color of state law. Flagg Bros. v. Brooks, 436 U.S. 149, 155-57 (1978). A pro se civil rights complaint is to be construed liberally. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). 2 III. In his complaint, Plaintiff alleges that defense attorney Daniel J. Duke rendered ineffective assistance in his representation of Plaintiff during pre-trial proceedings. As stated, one of the essential elements of a claim under 42 U.S.C. § 1983 is that the conduct complained of was committed by a person acting under color of state law. Parratt v. Taylor, 451 U.S. 527, 535 (1981). To be a “state actor,” a party’s actions must be “‘fairly attributable to the state.’” Ellison v. Garbarino, 48 F.3d 192, 195 (6th Cir. 1995), quoting Lugar v. Edmundson Oil Co., 457 U.S. 922, 937 (1982). Attorneys representing clients in criminal actions do not act under color of law for § 1983 purposes, even where such attorneys are appointed by the government to represent the criminal defendant. Polk County v. Dodson, 454 U.S. 312 (1981). Thus, defendant Duke was not acting under color of state law in acting as Plaintiff’s defense attorney. Accordingly, the complaint is DISMISSED pursuant to 28 U.S.C. § 1915(e), for failure to state a claim upon which relief may be granted. SO ORDERED. S/Arthur J. Tarnow Arthur J. Tarnow Senior United States District Judge Dated: September 29, 2015 I hereby certify that a copy of the foregoing document was served upon parties/counsel of record on September 29, 2015, by electronic and/or ordinary mail. S/Catherine A. Pickles Judicial Assistant 3

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