Harris v. Garner (INMATE2)

Filing 3

REPORT AND RECOMMENDATIONS that 1 Inmate 1983 Complaint filed by Timmy T. Harris be dismissed with prejudice prior to service of process pursuant to 28 U.S.C. 1915(e)(2)(B)(i) ; Objections to R&R due by 1/25/2006. Signed by Judge Vanzetta P. McPherson on 1/11/2006. (ag, )

Harris v. Garner (INMATE2)

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Case 1:06-cv-00011-MEF-VPM

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Filed 01/11/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA S O U T H E R N DIVISION _______________________________ T IM M Y T. HARRIS Plaintiff, v. W . STANLEY GARNER, JR. D e fe n d a n t. _______________________________ * * * CIVIL ACTION NO. 1:06-CV-11-F (WO) * *

R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE P la in tiff is currently incarcerated in the Dale County Jail. Disgruntled by actions ta k e n by his former court-appointed counsel, he filed this 42 U.S.C. § 1983 action against h im seeking a "declaratory judgment of $100,000.00" and $20,000.00 in damages for mental a n g u is h . Upon review of the complaint, the court concludes that dismissal of this case prior to service of process is appropriate under 28 U.S.C. § 1915(e)(2)(B).1

I. DISCUSSION P la in tiff seeks to challenge the actions of his former court-appointed counsel by e ss e n tia lly alleging that he provided ineffective assistance during Plaintiff's criminal

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A prisoner who is allowed to proceed in forma pauperis in this court will have his complaint

s c r e e n e d in accordance with the provisions of 28 U.S.C. § 1915(e)(2)(B). This screening procedure requires t h e court to dismiss a prisoner's civil action prior to service of process if it determines that the complaint is f r iv o lo u s , malicious, fails to state a claim upon which relief may be granted, or seeks monetary damages from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).

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Case 1:06-cv-00011-MEF-VPM

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Filed 01/11/2006

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p ro c e ed in g s on a misdemeanor charge.2 Plaintiff maintains that Defendant Garner uncovered p e rs o n a l information about him in order to avoid providing him with legal representation. T h e claims presented by Plaintiff against his former court-appointed attorney provide no b a s is for relief in the instant cause of action. An essential element of a 42 U.S.C. § 1983 action is that the conduct complained of w a s committed by a person acting under color of state law. Parratt v. Taylor, 451 U.S. 527 (1 9 8 1 ). An attorney who represents a defendant in criminal proceedings does not act under c o lo r of state law. Polk County v. Dodson, 454 U.S. 312 (1981); Mills v. Criminal District C o u r t No. 3, 837 F.2d 677, 679 (5 th Cir. 1988) ("[P]rivate attorneys, even court-appointed atto rne y s, are not official state actors and . . . are not subject to suit under section 1983."). A c c o rd in g ly , Plaintiff's complaint against Defendant Garner is due to be dismissed under § 1915(e)(2)(B)(i).

I I . CONCLUSION A cc o rd in g ly , it is the RECOMMENDATION of the Magistrate Judge that Plaintiff's c o m p la in t be DISMISSED with prejudice prior to service of process pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). It is further O R D E R E D that the parties are DIRECTED to file any objections to the said

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Defendant Garner is no longer representing Plaintiff. His motion to withdraw as Plaintiff's court-

a p p o i n t e d counsel was granted by court order dated December 22, 2005. (Doc. No. 1, Exh. 7.)

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Case 1:06-cv-00011-MEF-VPM

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Filed 01/11/2006

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R e c o m m e n d a tio n on or before January 25, 2006. Any objections filed must specifically id e n tif y the findings in the Magistrate Judge's Recommendation objected to. Frivolous, co n clus ive or general objections will not be considered by the District Court. The parties are a d v is e d that this Recommendation is not a final order of the court and, therefore, it is not a p p e a la b le . F a ilu re to file written objections to the proposed findings and recommendations in the M a g is tra te Judge's report shall bar the party from a de novo determination by the District C o u rt of issues covered in the report and shall bar the party from attacking on appeal factual fin d in g s in the report accepted or adopted by the District Court except upon grounds of plain e rr o r or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5 th Cir. 1982). See Stein v . Reynolds Securities, Inc., 667 F.2d 33 (11 th Cir. 1982). See also Bonner v. City of P r ic h a r d , 661 F.2d 1206 (11 th Cir. 1981, en banc), adopting as binding precedent all of the d e c is io n s of the former Fifth Circuit handed down prior to the close of business on S e p te m b e r 30, 1981. D o n e this 11 th day of January 2006.

/s / Vanzetta Penn McPherson V A N Z E T T A PENN MCPHERSON U N IT E D STATES MAGISTRATE JUDGE

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