Harris v. Garner (INMATE2)
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)
Page 1 of 3
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
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).
Page 2 of 3
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
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.)
Page 3 of 3
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
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?