Hicks, Jr. v. Clements, No. 3:2017cv00851 - Document 11 (E.D. Va. 2018)
Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 11/1/2018. Copy to Pro Se Plaintiff. (jsmi, )
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Hicks, Jr. v. Clements Doc. 11 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division OZELIA HICKS, JR., Plaintiff, v. Civil Action No. 3:17CV851 DAVIDS. CLEMENTS, Defendant. MEMORANDUM OPINION Ozelia Hicks, in forma pauperis, Jr., a Virginia inmate proceeding prose and has filed this 42 U.S.C. 1983 action. § The matter is before the Court for evaluation pursuant to 28 U.S.C. §§ 1915 (e) (2) and 1915A. I. PRELIMINARY REVIEW Pursuant to the Prison Litigation Reform Act ( "PLRA") this Court must dismiss any action filed by a prisoner if the Court determines the action (1) a relief § claim on 1915 ( e) ( 2) ; which see includes claims theory," or claims baseless." 28 based "is frivolous" or U.S. C. upon where the may § "an be 1915A. The indisputably "factual Williams, 490 U.S. "fails to state first standard meritless contentions 319, u.s.c. 28 granted." Clay v. Yates, 809 F. Supp. 417, (quoting Neitzke v. (2) 427 327 are legal clearly (E.D. Va. 1992) (1989)). The Dockets.Justia.com second standard is the familiar standard for a motion to dismiss under Fed. R. Civ. P. 12 (b) (6). "A motion sufficiency of to a dismiss complaint; contests surrounding the under Rule 12(b) (6) importantly, facts, applicability of defenses." it does tests not the resolve the merits of a claim, or the Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citing SA Charles A. Wright Arthur R. Miller, Federal Practice and Procedure§ 1356 (1990)). & In considering a motion to dismiss for failure to state a claim, a plaintiff's well-pleaded allegations are taken as true and the complaint is plaintiff. Cir. in the light most favorable to the Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th 1993); applies viewed see also Martin, only to factual considering a identifying pleadings conclusions, motion are not 980 F.2d at 952. allegations, to dismiss that, can because entitled to however, choose they the are This principle and "a to begin no court more assumption of by than truth." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The Federal Rules of Civil Procedure "require [ only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, (second alteration in original) 550 U.S. 544, (quoting Conley v. 2 555 (2007) Gibson, 355 U.S. 41, 47 with complaints "formulaic Id. (1957)). Plaintiffs containing recitation of the (citations omitted). sufficient level," "to id. "plausible raise a its "conceivable." Id. elements right to id. standard and conclusions" of a cause of or a action." a plaintiff must allege facts relief omitted), face," satisfy this "labels Instead, (citation on only cannot above stating at 570, the a speculative claim rather that than is merely "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference misconduct alleged." Corp., 550 U.S. that Iqbal, at 556). survive dismissal for the defendant 556 U.S. at 678 is liable for (citing Bell Atl. In order for a claim or complaint to failure to state a claim, the plaintiff must "allege facts sufficient to state all the elements of or] 761, her claim." 765 270, 281 construes 1151 and that DuPont de Nemours & Co., [his 324 F.3d (citing Dickson v. Microsoft Corp., 309 (4th Cir. 2002); Iodice v. United States, 289 F.3d prose develop, complaint. E.I. (4th Cir. 2002)). ( 4th Cir. the Bass v. (4th Cir. 2003) F.3d 193, 213 the complaints, 1978), sua inmate Lastly, Gordon while v. the Court Leeke, 574 liberally F.2d 1147, it will not act as the inmate's advocate sponte, failed See Brock v. to statutory and clearly raise Carroll, 3 107 constitutional on the F.3d 241, face 243 claims of his (4th Cir. 1997) J., concurring); Beaudett v. City of Hampton, 775 (Luttig, F.2d 1274, 1278 (4th Cir. 1985). SUMMARY OF ALLEGATIONS II. In his Complaint, sole defendant. Mr. Mr. during Mr. that, inter alia, Mr. and engaged in rights Hicks's Hicks named David S. Clements state served criminal Clements legal as Mr. trial. Mr. violated his malpractice. Clements as the Hicks's Hicks counsel contends constitutional Mr. Hicks demands millions of dollars in damages. III. ANALYSIS In order to state a viable claim under 42 U.S.C. § 1983, a plaintiff must allege that a person acting under color of state law deprived him or her of a constitutional right or of a right conferred by a law of the United States. Action Against Poverty in Roanoke Valley, Cir. See Dowe 145 F.3d 653, v. Total 658 (4th Private attorneys and public defenders do not act 1998). under color of federal authority when they represent defendants in criminal proceedings. See Polk Cty. v. 325 defender state (1981) (" [A] law counsel when to Hellerstein, attorneys a public performing defendant 685 in F.2d 1098, a does lawyer's a not act 454 U.S. under traditional criminal 1099 Dodson, color of functions as proceeding."); (9th Cir. 1982) Cox v. (holding that do not act under color of state or federal 4 312, law when representing clients, and therefore relief under either section 19 8 3 or Bivens) ; Nos. 89-7102, 89-7103, 1990). Accordingly, § 1983 claim cannot be obtained see Bagguley v. Cogburn, 1990 WL 139323, at *1 Mr. against Hicks has Mr. Clements, (4th Cir. Sept. 26, failed to state and a viable Hicks's Mr. constitutional claims will be dismissed. "To Virginia state a law, plaintiff attorney-client cause of action must relationship for show giving legal {1) the rise to breach of that duty by the attorney; and (3) caused by the breach.u (E.D. Va. Kelly, 2007) P.C., Jones v. (citing 568 Link, Rutter S.E.2d 693 v. (Va. malpractice existence a contends his erroneous conviction or a 493 F. Jones, Supp. (2) "that he (quoting Astrop v. (E.D. Va. omitted) has Taylor obtained v. Brunswick, Apr. 26, ("Virginia postconviction Davis, No. 576 S.E.2d 3:06CV640-HEH, 2007) (alterations requires an inmate 771 Woltz Furthermore, in & a where the resulted in an he must also allege relief." 445, 447 at Id. original) bringing a 769 2003)); (Va. 2 0 0 7 WL 6 0 8 0 4 4 9 , in the 2d 765, Blechman, negligence longer sentence, an damages proximately 2002)). attorney's of duty; legal malpractice action arising from a criminal case, plaintiff under at *2 (citation claim for legal malpractice arising out of his conviction or sentence to 'alleg[e] and prov[e] as a part of his cause of action that he has obtained post-conviction relief."), 5 aff' d, 251 F. App' x 227 (4th Cir. 2007). relief with Mr. Hicks has not obtained any post-conviction respect to his state Clements, No. 3:17CV96, 2017 WL 1963901, at *1 2017) to Hicks v. (E.D. Va. May 11, (dismissing Mr. Hicks's successive, unauthorized challenge his state (4th Cir. for See conviction. conviction), 2017). legal Thus, Mr. malpractice. appeal dismissed, 699 F. App' x 199 Hicks has failed to state a claim Accordingly, Mr. legal Hicks's malpractice claim will be dismissed. The action will be dismissed for failure to state a claim and as legally frivolous. the disposition of the The Clerk will be directed to note action for the purposes of 28 U.S.C. § 1915(g). The Clerk is directed to send a copy of the Memorandum Opinion to Mr. Hicks. tJ'~{ Date: J '),A)l8 Richmond, Virginia Isl Robert E. Payne Senior United States District Judge 6
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