Davis v. Russo
OPINION AND ORDER. Signed by Honorable Timothy L. Brooks on February 10, 2016. (src)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
MORRIS DEAN DAVIS
Case No. 3:15-CV-03097
JOHN RUSSO, Attorney, Baxter
County Public Defenders' Office
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).
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
argues that, as a result of his conviction , he lost his farm and other property valued at
between $150 ,000 and $170 ,000.
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
against public defenders under§ 1983). For these reasons , Davis's Complaint lacks an
arguable basis in law and fact and is frivolous.
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
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