Mero v. Claunch et al

Filing 5

RECOMMENDED DISPOSITION recommending that Plaintiff's case be dismissed without prejudice and that his 1 application for leave to proceed in forma pauperis be denied as moot. The Court further recommends that the Court certify that an in forma pauperis appeal from this dismissal would not be taken in good faith. Objections to R&R due no later than 14 days from the date the Recommended Disposition is received. Signed by Magistrate Judge Beth Deere on 2/12/10. (hph)

IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS N O R T H E R N DIVISION R U S T Y ROY MERO V. C A S E NO. 1:09CV0068 JLH-BD DEFENDANTS P L A IN T IF F

B E V E R L Y CLAUNCH, et al.

R E C O M M E N D E D DISPOSITION I. P r o c e d u r e for Filing Objections: T h e following recommended disposition has been sent to United States District C o u rt Chief Judge J. Leon Holmes. Any party may serve and file written objections to th is recommendation. Objections should be specific and should include the factual or le g a l basis for the objection. If the objection is to a factual finding, specifically identify th a t finding and the evidence that supports your objection. An original and one copy of yo u r objections must be received in the office of the United States District Court Clerk no la te r than fourteen (14) days from the date you receive the Recommended Disposition. A c o p y will be furnished to the opposing party. Failure to file timely objections may result in waiver of the right to appeal questions of fact. M a il your objections and "Statement of Necessity" to: C lerk , United States District Court E a ste rn District of Arkansas 6 0 0 West Capitol Avenue, Suite A149 L ittle Rock, AR 72201-3325

II.

D is c u s s io n : A. B a c k g ro u n d

P la in tif f , a pretrial detainee, filed this action pro se under 42 U.S.C. § 1983 (docket e n try #2). Along with his Complaint, Plaintiff also has submitted an application for leave to proceed in forma pauperis (#1). In his Complaint, Plaintiff alleges that his court-appointed public defender has f a iled to adequately communicate with him and that, as a result, his constitutional rights h a v e been violated. Plaintiff names as Defendants Beverly Claunch, his court-appointed d e f en d e r, and Independence County. Plaintiff seeks monetary damages and requests that th e Court appoint him new counsel. B a se d on the allegations contained in Plaintiff's Complaint, the Court recommends th a t Plaintiff's claims be DISMISSED without prejudice, and that his application to p ro c e ed in forma pauperis (#1) be DENIED as moot. B. S tand ard

T h e Prison Litigation Reform Act ("PLRA") requires federal courts to screen p ris o n e r complaints seeking relief against a governmental entity, officer, or employee. 28 U .S .C . § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner h a s raised claims that: (a) are legally frivolous or malicious; (b) fail to state a claim upon w h ic h relief may be granted; or (c) seek monetary relief from a defendant who is immune f ro m such relief. 28 U.S.C. § 1915(e)(2)(B).

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C o u rts must accept the factual allegations in complaint as true, and hold a p la in tif f 's pro se complaint "to less stringent standards than formal pleadings drafted by la w ye rs ." Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam). A pro se plaintiff, however, still must assert facts sufficient to state a claim for relief. In deciding w h e th e r a plaintiff has stated a claim, the Court must determine whether the plaintiff has p le a d ed facts with enough specificity "to raise a right to relief above the speculative le v e l." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007) (c ita tio n s omitted). Although detailed factual allegations are not required, the complaint must contain s u f f ic ie n t factual matter to state a claim for relief that is "plausible on its face." Ashcroft v . Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1940 (2009) (quoting Bell Atlantic Corp. v. T w o m b ly , supra). "A claim has facial plausibility when the pleaded factual content allows th e court to draw the reasonable inference that the defendant is liable for the misconduct a lle g e d ." Iqbal, --- U.S. ----, 129 S.Ct. at 1940. C. B e v e rly Claunch

P lain tiff sues Beverly Clauch in connection with her representation of him as his c o u r t- a p p o i n te d attorney. In order to state a claim for relief under § 1983, a plaintiff must a lle g e that a person acting under color of state law deprived him of "a right, privilege or im m u n ity secured by the Constitution or laws of the United States." Hamilton v. Schriro, 7 4 F.3d 1545, 1549 (8th Cir. 1996). The United States Supreme Court specifically has

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h e ld that "a public defender does not act under color of state law when performing a la w ye r's traditional functions as counsel to a defendant in a criminal proceeding." Polk C o u n ty v. Dodson, 454 U.S. 312, 325, 102 S.Ct. 445, 453 (1981); see also Rogers v. B r u n tr a g e r, 841 F.2d 853, 856 (8th Cir. 1988). Accordingly, because Defendant Claunch is not a state actor, Plaintiff's claims against Defendant Claunch fail. D. In d e p e n d e n c e County

P la in tif f also names Independence County as a party Defendant. Although a c o u n ty may be held liable under 42 U.S.C. § 1983, in order to subject a county to such lia b ility, a plaintiff must allege that the county implemented or executed an u n c o n stitu tio n a l policy or custom. See Yellow Horse v. Pennington County, 225 F.3d 9 2 3 , 928 (8th Cir. 2000). The Eighth Circuit Court of Appeals has defined the term "p o licy" as "an official policy, a deliberate choice of a guiding principle or procedure m a d e by an official with authority." Mettler v. Whitledge, 165 F.3d 1197, 1204 (8th Cir. 1 9 9 9 ). "Custom" means a "persistent, widespread pattern of unconstitutional conduct of w h ich officials have notice and subsequently react with deliberate indifference or tacit a u th o riz a tio n ." Johnson v. Outboard Marine Corp., 172 F.3d 531, 536 (8th Cir. 1999). Here, Plaintiff's Complaint is devoid of any such facts or allegations. Accordingly, P la in t if f ' s claim against Independence County fails.

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III.

C o n c lu s io n : The Court recommends that Plaintiff's case be dismissed without prejudice and

th a t his application for leave to proceed in forma pauperis (#1) be DENIED as moot. The Court further recommends that the Court certify that an in forma pauperis appeal f ro m this dismissal would not be taken in good faith. DATED this 12th day of February, 2010.

___________________________________ U N IT E D STATES MAGISTRATE JUDGE

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