Hall v. Stroud

Filing 6

REPORT AND RECOMMENDATIONS re 3 MOTION for Service filed by Lemuel Robert Hall, 1 Complaint filed by Lemuel Robert Hall, recommending case be dismissed for failure to state a claim upon which relief may be granted. Objections to R&R due by 2/22/2010. Signed by Honorable Barry A. Bryant on February 4, 2010. (cap)

IN THE UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF ARKANSAS T E X A R K A N A DIVISION

LEMU EL ROBERT HALL v. JOHN F. STROUD, III Civil No. 4:10-cv-04005

PLAINTIFF

D E FE N D A N T

R E P O R T AND RECOMMENDATION OF THE MAGISTRATE JUDGE P lain tiff, Lemuel Robert Hall (hereinafter Hall), filed this civil rights action pursuant to the p ro v isio n s of 42 U.S.C. § 1983. He proceeds pro se and in forma pauperis. Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3)(2007), the Honorable Harry F. B arn es, United States District Judge, referred this case to the undersigned for the purpose of making a report and recommendation. The case is before me for pre-service screening under the provisions of th e in forma pauperis statute. On review, the court is to dismiss the complaint, or any portion of the co m p lain t, that is frivolous, malicious, or fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). B a ck g ro u n d A cco rd in g to the allegations of the complaint (Doc. 1) and addendum (Doc. 4), Defendant, Jo h n F. Stroud, III (hereinafter Stroud), was appointed to represent Hall in the criminal case United S ta tes v. Hall, 4:08-cr-40004-01.1 Hall was dissatisfied with Stroud's representation of him and states h e asked the Court to appoint another attorney to represent him. Specifically, Hall alleges Stroud

O n January 22, 2008, the Court appointed Craig L. Henry to represent Hall. On September 1, 2009, Mr. H e n ry moved to withdraw as Hall's counsel citing an "acrimonious" relationship between Hall and Mr. Henry that p re v e n te d effective representaion. The Court granted the Motion to Withdraw and appointed Stroud as counsel for H a ll on September 9, 2009.

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ignored the Federal Rules of Criminal Procedure and did not voice one word in Hall's defense. Hall m ain tain s Stroud threatened, coerced, and applied undue pressure to convince Hall to enter a guilty plea. Stroud in fact filed a Motion to Withdraw as counsel on January 4, 2010, citing a "fractured" relatio n sh ip with Hall. The Court held a hearing on January 8, to consider the Motion to Withdraw. At the hearing the Court initially granted Stroud's request to withdraw. Hall then indicated he was in fact satisfied with Stroud's representation and wanted to proceed with a guilty plea. The docket sheet in United States v. Hall, 4:08-cr-40004-01 indicates Hall entered a plea of gu ilty on January 8, 2010. The Plea agreement reflects Hall pled guilty to two counts of the five count in d ic tm e n t and Government agreed to recommend a term of probation as the sentence. The plea agreem en t also recited that Hall's decision to enter a plea of guilty was "not the result of threats or co ercio n " directed at him by any person. At the sentencing on the same day the Court imposed a term o f three years unsupervised probation on Hall. Hall maintains Stroud violated his Sixth Amendment right to be represented by competent co u n sel. As relief, Hall asks for $25 million in damages. He further asks that Stroud be required to face criminal charges and that he be disbarred. D is c u s s io n T h is case is subject to dismissal. To state a claim under § 1983, a Plaintiff must allege that the D efen d an t, while acting under color of state law, deprived him of a federal right. In Polk County v. D o d so n , 454 U.S. 312, 325, 102 S. Ct. 445, 70 L. Ed. 2d 509 (1981), the Supreme Court held that a p u b lic defender does not act under color of state law when performing a lawyer's traditional functions as counsel to indigent defendants in state criminal proceedings.

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Here, Stroud was appointed as counsel in a federal case. A case against a federal officer is b ro u gh t under the provisions of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 4 0 3 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971)(Plaintiff must allege that his constitutional righ ts were violated by a federal officer acted under color of federal law). The Supreme Court's h o ld in g in Polk County has been applied to court appointed counsel in federal cases. For example, the co u rt in Cox v. Hellerstein, 685 F.2d 1098, 1099 (9th Cir. 1982) held that: "If a public defender does n o t act under color of state law in representing an indigent defendant in a state criminal proceeding, it follows that a public defender does not act under color of federal law in performing the identical fu n ctio n s as a lawyer to an indigent defendant in a federal criminal proceeding.". It is clear Hall's allegatio n s cannot proceed as Stroud was not a Government actor in this case. C o n c l u s io n F o r the reasons stated, I recommend that this action be dismissed for failure to state a claim u p o n which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(I)- (iii) (in forma pauperis action m ay be dismissed on such grounds at any time). Hall has fourteen (14) days from receipt of this report and recommendation in which to f ile written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely objections m a y result in waiver of the right to appeal questions of fact. Hall is reminded that objections m u st be both timely and specific to trigger de novo review by the district court. D A T E D this 4th day of February 2010.

/s/ Barry A. Bryant HON. BARRY A. BRYANT UNITED STATES MAGISTRATE JUDGE

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