Young v. Teague (INMATE 2)

Filing 9

ORDER: Plaintiff's 6 Objection to the Recommendation of the Magistrate Judge filed on 4/15/2009 is overruled. The 5 RECOMMENDATION of the Magistrate Judge filed on 4/2/2009 is adopted. Plaintiff's complaint is DISMISSED with prejudice prior to service of process pursuant to 28 U.S.C. 1915(e)(2)(B)(i). Signed by Honorable Truman M. Hobbs on 4/27/2009. (dmn)

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION TAVARIOUS YOUNG, #203 891 P l a in tif f , v. M A T T H E W TEAGUE, D e f e n d a n t. ) ) ) ) ) ) ) ) )

CASE NO. 2:09-CV-211-TMH (WO)

ORDER T h is cause is before the court on a Recommendation (Doc. No. 5) filed by the M a g i str a te Judge, which recommends dismissal of the complaint with prejudice prior to s e rv ic e of process pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). On April 15, 2009 Plaintiff f ile d an Objection. (Doc. No. 6.) Because Plaintiff has objected to the Recommendation, th e court engages in a de novo review of the record. Plaintiff files this complaint against attorney Matthew Teague. Plaintiff had

p re v io u s ly retained Mr. Teague's father to represent him in a matter before the parole board. The elder Mr. Teague passed away and Defendant Teague, who took over the family law f irm , agreed to continue representation of Plaintiff in the parole board matter. According to th e complaint, Plaintiff contacted Defendant Teague concerning the matter of his continued re p re se n ta tio n of Plaintiff in the parole board case but complains that Defendant has and c o n tin u e s to be non-responsive. In filing this case, Plaintiff seeks return of the retainer paid to Defendant's law firm to represent him before the parole board.

Plaintiff argues in his objection that Defendant Teague should not be "removed from th e purview of 42 U.S.C. § 1983" simply because he does not act under color of state law and re q u e sts dismissal of the complaint without prejudice. The court finds, however, that the M a g is tra te Judge correctly dismissed this matter with prejudice under 28 U.S.C. § 1 9 1 5 (e )( 2 )( B )( i) . Under § 1915(e)(2)(B)(i), a claim may be dismissed as "frivolous where it lacks an a rg u a b le basis in law or fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). A claim is f riv o lo u s as a matter of law where, inter alia, the claim seeks to enforce a right which clearly d o e s not exist. Id. at 327. In a § 1983 action, a retained attorney does not act under color of s ta te law, see Slavin v. Curry, 574 F.2d 1256, 1264 (5 th Cir. 1979), overruled on other g r o u n d s by Sparks v. Duval County Ranch Co., 604 F.2d 976 (5 th Cir. 1979), a necessary e le m e n t to state a claim under § 1983. Parratt v. Taylor, 451 U.S. 527, 535 (1981), o v e r r u le d on other grounds by Daniels v. Williams, 474 U.S. 327, 330-31 (1986). Thus, a lt h o u g h Plaintiff has not stated a viable cause of action against Defendant Teague in the c o m p la in t he filed in this court, such holding does not impact Plaintiff's ability to pursue p o te n tia l remedies against Defendant at the state court level and/or with the appropriate bar a s s o c ia tio n . A c c o rd in g ly, after an independent and de novo review of the record, it is the O R D E R , JUDGMENT, and DECREE of the court that: 1 . Plaintiff's objection (Doc. No. 6) to the Recommendation of the Magistrate Judge f ile d on April 15, 2009 is overruled;

2. The Recommendation of the Magistrate Judge (Doc. No. 5) filed on April 2, 2009 is adopted; 3 . Plaintiff's complaint is DISMISSED with prejudice prior to service of process p u rs u a n t to 28 U.S.C. § 1915(e)(2)(B)(i). DONE, this 27th day of April 2009.

/s/ Truman M. Hobbs TRUMAN M. HOBBS S E N IO R UNITED STATES DISTRICT JUDGE