Davis v. Russo

Filing 6

OPINION AND ORDER. Signed by Honorable Timothy L. Brooks on February 10, 2016. (src)

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IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS HARRISON DIVISION PLAINTIFF MORRIS DEAN DAVIS v. Case No. 3:15-CV-03097 JOHN RUSSO, Attorney, Baxter County Public Defenders' Office DEFENDANT OPINION AND ORDER This is a civil rights case filed by the Plaintiff Morris Dean Davis under the provisions of 42 U.S.C. § 1983. Davis proceeds prose and in forma pauperis. He is incarcerated in the Cummins Unit of the Arkansas Department of Correction. The Prison Litigation Reform Act (PLRA) modified the IFP statute , 28 U.S.C. § 1915, to require the Court to screen complaints for dismissal under§ 1915(e)(2)(B). The Court must dismiss a complaint, or any portion of it, if it contains claims that: (a) are frivolous or malicious; (b) fail to state a claim upon which relief may be granted ; or (c) seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). I. BACKGROUND According to the allegations of the Complaint (Doc. 1), Davis was represented by Defendant John Russo in a criminal matter before the Boone County Circuit Court. Davis believes he was tricked or deceived into entering a guilty plea on January 14, 2013, by his public defender, Russo . Davis contends that he thought he was pleading guilty to a lesser charge of manslaughter. Ultimately, Davis was sentenced to ten years in prison and -1- argues that, as a result of his conviction , he lost his farm and other property valued at between $150 ,000 and $170 ,000. II. DISCUSSION Under the PLRA, the Court is obligated to screen a case prior to service of process being issued. A claim is frivolous if "it lacks an arguable basis either in law or fact." Neitzke v. Williams , 490 U.S. 319 , 325 (1989) . However, the Court bears in mind that when "evaluating whether a pro se plaintiff has asserted sufficient facts to state a claim , we hold 'a pro se complaint, however inartfully pleaded , .. . to less stringent standards than formal pleadings drafted by lawyers."' Jackson v. Nixon , 747 F.3d 537 , 541 (8th Cir. 2014) (quoting Erickson v. Pardus , 551 U.S. 89 , 94 (2007)) . In the case at bar, Davis has attempted to state claims against his defense attorney, a Baxter County Public Defender, pursuant to 42 U.S.C. § 1983. In evaluating a§ 1983 action , the following two elements of the cause of action must be assessed : "(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 (1981 ). Here, Davis has failed to state a claim against Russo because a public defender does not act under color of state law when performing a lawyer's traditional functions as counsel to an indigent defendant in state criminal proceedings. See Polk County v. Dodson , 454 U.S. 312 , 325 (1981) ; see also Gilbert v. Corcoran , 530 F.2d 820 (8th Cir. 1976) (conclusory allegations of ineffective assistance of counsel do not state a claim -2- against public defenders under§ 1983). For these reasons , Davis's Complaint lacks an arguable basis in law and fact and is frivolous. Ill. CONCLUSION The Complaint fails to state a cognizable claim under § 1983 and is frivolous . Therefore , it is DISMISSED WITH PREJUDICE. See 28 U.S.C. § 1915(e)(2)(B)(i)-(ii) (in forma pauperis action may be dismissed at any time due to frivolousness or for failure to state a claim). IT IS SO ORDERED on this ~ j[ day of February, 20 -3-

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