Dalton v. Mitchell, No. 3:2018cv00412 - Document 4 (M.D. Tenn. 2018)
Court Description: MEMORANDUM OPINION OF THE COURT & ORDER Assessing Filing Fee for Bryan K. Dalton $350. This action is DISMISSED for failure to state a claim upon which relief can be granted. 28 U.S.C. §§ 1915(e)(2)(B) and 1915A. Any appeal of this Order would not be in good faith as required by 28 U.S.C. § 1915(a)(3). Signed by Chief Judge Waverly D. Crenshaw, Jr on 5/14/2018. (xc:Pro se party by regular mail. ) (Administrator of Rutherford County Detention Center sent copy of the order by regular mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(am)
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Dalton v. Mitchell Doc. 4 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION BRYAN K. DALTON #375315, Plaintiff, v. JOHN MITCHELL, III, Defendant ) ) ) ) ) ) ) ) ) NO. 3:18-cv-00412 CHIEF JUDGE CRENSHAW MEMORANDUM OPINION AND ORDER Bryan K. Dalton, an inmate of the Rutherford County Adult Detention Center in Murfreesboro, Tennessee, has filed this pro se civil rights action under 42 U.S.C. § 1983 (Doc. No. 1), along with an application to proceed in district court without prepaying fees and costs. (Doc. No. 2.) The case is before the Court for a ruling on the application and for an initial review pursuant to the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. §§ 1915(e)(2) and 1915A, and 42 U.S.C. § 1997e. A. Application to Proceed as a Pauper Under the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(a), a prisoner bringing a civil action may be permitted to file suit without prepaying the filing fee of $350 required by 28 U.S.C. § 1914(a). Because it is apparent from Plaintiff’s submission that he lacks the funds to pay the entire filing fee in advance, his application to proceed as a pauper is GRANTED. Pursuant to 28 U.S.C. §§ 1915(b) and 1914(a), Plaintiff is nonetheless assessed the $350.00 civil filing fee. The administrator of the facility in which Plaintiff is currently housed, as custodian of Plaintiff’s trust account, is DIRECTED to submit to the Clerk of Court, as an initial payment, Dockets.Justia.com the greater of: (a) 20% of the average monthly deposits to Plaintiff’s credit at the jail; or (b) 20% of the average monthly balance to Plaintiff’s credit for the six-month period immediately preceding the filing of the complaint. 28 U.S.C. § 1915(b)(1). Thereafter, the custodian shall submit 20% of the Plaintiff’s preceding monthly income (or income credited to Plaintiff for the preceding month), but only when the balance in his account exceeds $10.00. 28 U.S.C. § 1915(b)(2). Payments shall continue until the $350.00 filing fee has been paid in full to the Clerk of Court. 28 U.S.C. § 1915(b)(3). The Clerk of Court MUST send a copy of this Order to the administrator of the Rutherford County Adult Detention Center to ensure compliance with that portion of 28 U.S.C. § 1915 pertaining to the payment of the filing fee. If Plaintiff is transferred from his present place of confinement before the fee is paid in full, the custodian must ensure that a copy of this Order follows Plaintiff to his new place of confinement, for continued compliance with the Order. All payments made pursuant to this Order must be submitted to the Clerk of Court for the United States District Court for the Middle District of Tennessee, 801 Broadway, Nashville, TN 37203. B. Initial Review of the Complaint Pursuant to 28 U.S.C. § 1915(e)(2), the Court is required to conduct an initial review of any complaint filed in forma pauperis, and to dismiss the complaint if it is facially frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief against a defendant who is immune from such relief. In reviewing the complaint to determine whether it states a plausible claim, “a district court must (1) view the complaint in the light most favorable to the plaintiff and (2) take all well-pleaded factual allegations as true.” Tackett v. M & G Polymers, USA, LLC, 561F.3d 478, 488 (6th Cir. 2009) (citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009) (citations omitted)). A pro se pleading must be liberally construed and 2 “held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Plaintiff seeks to vindicate alleged violations of his federal constitutional rights under 42 U.S.C. § 1983. Section 1983 confers a private federal right of action against any person who, acting under color of state law, deprives an individual of any right, privilege or immunity secured by the Constitution or federal laws. Wurzelbacher v. Jones-Kelley, 675 F.3d 580, 583 (6th Cir. 2012). Thus, to state a § 1983 claim, a plaintiff must allege two elements: (1) a deprivation of rights secured by the Constitution and laws of the United States, and (2) that “the deprivation was caused by a person acting under color of state law.” Tahfs v. Proctor, 316 F. 3d 584, 590 (6th Cir. 2003) (citations omitted); 42 U.S.C. § 1983. Plaintiff complains that his defense attorney in a state criminal proceeding denied him effective assistance of counsel, discriminated against and defamed him, and violated attorneyclient confidentiality. (Doc. No. 1 at 5.) He seeks $60,000 in damages. (Id.) But the law is clear that an attorney representing a defendant in his criminal case is not acting under color of state law, regardless of whether he is retained or appointed. Polk County v. Dodson, 454 U.S. 312, 325 (1981) (attorney “does not act under color of state law when performing a lawyer’s traditional functions as counsel to a defendant in a criminal proceeding”); Harmon v. Hamilton Cty. Court of Common Pleas, 83 F. App’x 766, 767 (6th Cir. 2003) (“Here, the defendant attorneys did not act under color of state law as privately retained attorneys, although the acts alleged related to state court litigation.”); Whisnant v. Stokes, No. 1:08-CV-229, 2008 WL 4763853, at *5 (E.D. Tenn. Oct. 28, 2008) (“[C]ourts have uniformly held an attorney, whether appointed or retained, whether in state court or federal court, is not acting under color of law.”). complaint against his attorney fails to state a claim under § 1983. 3 Accordingly, Plaintiff’s C. CONCLUSION This action is DISMISSED for failure to state a claim upon which relief can be granted. 28 U.S.C. §§ 1915(e)(2)(B) and 1915A. Any appeal of this Order would not be in good faith as required by 28 U.S.C. § 1915(a)(3). IT IS SO ORDERED. ____________________________________ WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE 4
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