Avery v. Hyslip et al

Filing 8

OPINION AND ORDER. Signed by Honorable Timothy L. Brooks on December 5, 2016. (rg)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION

PLAINTIFF

ROBERT W. AVERY
CASE NO. 5:16-cv-05283

v.

DENNY HYSLIP, Public
Defender; LEANA HOUSTON,
Public Defender; and JOHN
DEFENDANTS

AND JANE DOE, Public Defenders
OPINION AND ORDER

This is a civil rights case filed by Plaintiff Robert W. Avery under the provisions of
42 U.S.C. § 1983. Avery proceeds prose and in forma pauperis. He is incarcerated in the
Washington County Detention Center (WCDC).
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)(8). 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)(8).
I. BACKGROUND

According to the allegations of the Complaint (Doc. 1 ), Avery is incarcerated
because of an alleged parole violation. Avery asserts Defendants have violated the rules
of professional conduct.

Because of these ethical violations, Avery alleges his defense

was prejudiced.
Avery alleges that the public defenders have failed to come visit him, counsel him,
or otherwise communicate with him. Avery asserts that he has been incarcerated since
-1-

May 23, 2016, and as of the filing of the Complaint, he had yet to see his public defenders.
As a result, Avery asserts he has lost exculpatory evidence, a security video, and witness
testimony.
As relief, Avery seeks compensatory and punitive damages. He also asks for an
injunction against the Defendants to keep them from representing him. Further, he wants
a policy created that requires public defenders to comply with the rules of professional
conduct.
II. DISCUSSION

Under the PLRA, the Court is obligated to screen a case prior to service of process
being issued. A claim is frivolous when it "lacks an arguable basis either in law or fact."
Neitzke

v.

Williams, 490 U.S. 319, 325 (1989). A claim fails to state a claim upon which

relief may be granted if it does not allege "enough facts to state a claim to relief that is
plausible on its face." Bell At/. Corp.

v.

Twombly, 550 U.S.544, 570 (2007). However, the

Court bears in mind that when "evaluating whether a prose plaintiff has asserted sufficient
facts to state a claim, we hold 'a prose complaint, however inartfully pleaded, ...to less
stringent standards than formal pleadings drafted by lawyers."' Jackson
537, 541 (8th Cir. 2014)(quoting Erickson

v.

v.

Nixon, 747 F.
3d

Pardus, 551 U.S. 89, 94 (2007)).

Avery's claims against public defenders Denny Hyslip, Leana Houston, and Jane
or John Doe Public Defenders, are subjected to dismissal. Section 1983 provides a federal
cause of action for the deprivation, under color of law, of a citizen's "rights, privileges, or
immunities secured by the Constitution and laws" of the United States. In order to state
a claim under 42 U.S.C. § 1983, Plaintiff must allege that Defendants acted under color
of state law and that violated a right secured by the Constitution. West

-2-

v.

Atkins, 487 U.S.

42 (1988); Dunham

v.

In Polk County

Wadley, 195 F.3d 1007, 1009 (8th Cir. 1999).
v.

Dodson, 454 U.S. 312, 325 (1981), the Supreme Court held that

a public 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. Thus,
when the claim is merely that the public defender failed to adequately represent the client
in his criminal proceedings, it does not state a cognizable claim under§ 1983. 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).
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) (IFP

!.:f to frivolousness or for failure to state a claim).

action may be dismissed at any time
IT IS SO ORDERED on this

SJ.�

day of December.

-3-

016.