Elder v. Ford

Filing 4

REPORT AND RECOMMENDATIONS re 3 Complaint filed by Virginia A. Elder, Objections to R&R due by 1/12/2006. Signed by Judge Beverly Stites Jones on December 29, 2005. (sh ) Modified on 1/5/2006 to edit text (rw ).

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Elder v. Ford Doc. 4 Case 2:05-cv-02180-JLH Document 4 Filed 12/29/2005 Page 1 of 4 IN THE UNITED STATES DISTRICT COURT WE S T E R N DISTRICT OF ARKANSAS FO R T SMITH DIVISION V IR G IN IA A. ELDER v. MARK FORD, Attorney C iv il No. 05-2180 PLAINTIFF D E FE N D A N T R E P O R T AND RECOMMENDATION OF THE MAGISTRATE JUDGE O n December 12, 2005, plaintiff submitted this civil rights suit for filing pursuant to 42 U .S .C . § 1983. Along with the complaint, she submitted an application to proceed in forma p a u p eris (IFP). The complaint was provisionally filed subject to a later determination of the p lain tiff's status as a pauper and a determination of whether defendant should be served. BACKGROUND O n March 10, 2003, the plaintiff, Virginia A. Elder, retained, the defendant, Mark Ford, an atto rn ey, to represent her in connection with an automobile accident that occurred on March 7, 2 00 3. According to Elder, she was rear-ended by Alma L. Boyd (a/k/a Alma Farmer) on exit ramp o f Interstate 540. On September 26, 2003, Ford filed suit against Boyd. On January 20, 2004, a "default jud gm en t" was granted Elder. A hearing was held on October 6, 2004. Elder maintains Ford "gu aran teed " her that she would receive a money judgment against Boyd for costs incurred and all o th er proper relief. Elder indicates evidence regarding her chronic injury was "suppressed and not presented to the courts on the record so the judge could consider the plaintiff[`s] physician[`s] diagno sis." Elder was awarded $5,374.09. Elder appealed but the judgment of the trial court was a ffirm e d . Elder states that on appeal her first three arguments regarding the legal services rendered by her attorney were found not to be preserved. These arguments were: (1) although she was AO72A (Rev. 8/82) Dockets.Justia.com Case 2:05-cv-02180-JLH Document 4 Filed 12/29/2005 Page 2 of 4 granted a default judgment, her attorney made no attempt to recover the award; (2) her attorney failed to file her medical bills with the insurance company which resulted in her being sued; and (3) her attorney should have filed a motion for continuance until her physician could assess her in ju ry and determine the duration of treatment and level of disability. E ld er alleges Ford committed legal malpractice, was negligent, breached their contract, and com m itted fraud, theft, and breach of fiduciary duty. She also maintains he intentionally violated h er rights to Due Process as guaranteed by the United States Constitution. Finally, she maintains he violated the State of Arkansas' "right to recover under [her] husband['s] medical insurance p aym en ts (subrogation) from a third party cause from the accident." D IS C U SS IO N We first turn to an examination of Elder's application to proceed IFP. On her application, Elder indicates she has $1,600 in savings and $50 in her checking. She has also listed as assets a 2 0 0 5 Trailblazer, although she indicates this has a note, of an unspecified amount, on it, and a 1992 Isu zu truck. Section 1915(a)(1) permits the court to authorize the commencement of an action or appeal w ith o u t the prepayment of fees by a person who submits an affidavit of indigency. 28 U.S.C. § 1 9 1 5 (a)(1 ). "[P]roceeding IFP in a civil case is a privilege, not a right­fundamental or otherwise." R ivera v. Allin, 144 F.3d 719, 724 (11th Cir. 1998). While a person should not be denied the o p p o rtu n ity to proceed IFP under 28 U.S.C. § 1915(a) because he or she is not "absolutely destitute," Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40, 69 S. Ct. 85, 93 L. Ed. 4 3 (1948), if a person has sufficient funds to pay the filing fee, the application to proceed IFP sh o u ld be denied. See e.g., Ward v. Werner, 61 F.R.D. 639 (M.D. Pa. 1974). In this case, we believe Elder has sufficient resources to pay the filing fee of $250.00. B a sed on the information provided in the application to proceed IFP, the application should be d e n ie d . AO72A (Rev. 8/82) Case 2:05-cv-02180-JLH Document 4 Filed 12/29/2005 Page 3 of 4 S eco n d , this case is subject to dismissal because it is frivolous. As part of the application to proceed IFP, we conduct a preliminary review of the claims to determine if the action is subject to dismissal for the reasons specified in the statute. Specifically, section 1915(e)(2) in pertinent part p rov ide s that "the court shall dismiss the case . . . if the court determines . . . the action . . . is frivo lou s or malicious [or] fails to state a claim on which relief may be granted." "[I]n any § 1983 action the initial inquiry must focus on whether the two essential elements to a § 1983 action are present: (1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived a person of rights, privileges or immunities secured by the Constitution or laws of the United States." Parratt v. Taylor, 451 U.S. 527, 535, 101 S. Ct. 1908, 68 L. Ed. 2d 420 (1981). Private attorneys do not act under color of law and are not subject to suit under § 1983. DuBose v. Kelly, 187 F.3d 999 (8th Cir. 1999). Ford was not acting under color of state law while representing Elder in her civil proceeding. See e.g., Polk County v. Dodson, 454 U.S. 312, 318, 102 S. Ct. 445, 70 L. Ed. 2d 509 (1981) (public defender does not act under color of state law when performing traditional functions as counsel); DuBose, 187 F.3d at 1002-1003 ("[C]onduct of counsel generally does not constitute action under color of law."); Dunn v. Hackworth, 628 F.2d 1111, 1112 (8th Cir. 1980)("The actions of privately retained counsel are not considered state action and therefore cannot form the basis of a § 1983 claim."). There is no other basis for federal court jurisdiction. CONCLUSION Accordingly, I recommend the following: (1) Elder's request to proceed IFP be denied; and (2) her § 1983claims be dismissed as they are frivolous. See 28 U.S.C. § 1915(e)(2)(B)(i)(iii)(IFP action may be dismissed on such grounds at any time). As no other basis of federal jurisdiction exists, the case should be dismissed. AO72A (Rev. 8/82) Case 2:05-cv-02180-JLH Document 4 Filed 12/29/2005 Page 4 of 4 Elder has ten (10) days from receipt of this report and recommendation in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely objections may result in waiver of the right to appeal questions of fact. Elder is reminded that objections must be both timely and specific to trigger de novo review by the district court. D A T E D this 29th day of December 2005. /s/ Beverly Stites Jones UNITED STATES MAGISTRATE JUDGE AO72A (Rev. 8/82)

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