Sheeley v. McCormack

Filing 7

ORDER OF DISMISSAL dismissing 1 Complaint without prejudice pursuant to §1915A, or §1915(e)(2)(b)(ii). The Clerk shall enter judgment accordingly and close the case. Signed by Judge John E. Steele on 3/30/2015. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MICHAEL SHEELEY,
Plaintiff,
v.

Case No: 2:15-cv-38-FtM-29DNF

ROBERT E. MCCORMACK,
Defendant.
ORDER OF DISMISSAL
I.
This matter comes before the Court upon review of the file.
Michael Sheeley, who is detained at the Charlotte County Jail,
initiated this action by filing a pro se, 42 U.S.C. § 1983 Civil
Rights

Complaint

Form

(Doc.

#1).

Plaintiff

seeks

leaves

to

proceed in forma pauperis (Docs. #2, #3).
II.
The Prison Litigation Reform Act requires this Court to screen
actions against governmental entities, officers, or employees of
a governmental entity, to determine whether the complaint is
frivolous, malicious, or fails to state a claim.
1915A;

see

also

28

U.S.C.

§

See 28 U.S.C. §

1915(e)(2)(b)(ii)(screening

that

applies to prisoner cases seeking to proceed in forma pauperis).
The standards that govern dismissals under Federal Rule of Civil
Procedure

12(b)(6)

apply

to

dismissals

under

§

1915A

and

§

1915(e)(2)(b)(ii).

Douglas v. Yates, 535 F.3d 1316, 1319-20 (11th

Cir. 2008)(internal citation omitted). “While a complaint attacked
by a rule 12(b)(6) motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide the ‘grounds’ of
his

entitle[ment]

to

relief’

requires

more

than

labels

and

conclusions, and a formulaic recitation of the elements of a cause
of action will not do.”
555 (2007).

Bell Atl. Corp. v. Twombly, 550 U.S. 444,

“Factual allegations must be enough to raise a right

to relief about the speculative level.” Id. at 555 (citations
omitted).

“Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.”
Ashcroft

v.

Iqbal,

556

U.S.

662,

678

(2009).

Furthermore,

dismissal for failure to state a claim is appropriate if the facts
as pled fail to state a claim for relief that is “plausible on its
face.”

Id. (internal quotation marks omitted).

Plausibility

requires more than “a sheer possibility that a defendant has acted
unlawfully.”

Id.

Rather, “[a] claim has facial plausibility when

the plaintiff pleads factual content that allows the court to draw
the reasonable inference that he defendant is liable for the
misconduct alleged.”
Additionally,

§

Id.
1915

requires

dismissal

when

the

legal

theories advanced are “indisputably meritless,” Nietzke, 490 U.S.
at 327; when the claims rely on factual allegations which are
“clearly baseless,” Denton v. Hernandez, 504 U.S. 25, 32 (1992);

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or, when it appears that the plaintiff has “little or no chance of
success,” Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001).
This Court is cognizant that it must liberally construe a pro se
complaint.
omitted).

Douglas,

535

F.3d

at

1319-20

(internal

citation

This liberal construction does not give a court license

to rewrite an otherwise deficient pleading in order to sustain an
action.
1359,

GJR Invs., Inc. v. Cnty. of Escambia, Fla., 132 F.3d

1369

(11th

Cir.

1998),

overruled

on

other

grounds

by,

Aschroft v. Iqbal, 556 U.S. 662 (2009).
III.
To state a claim under 42 U.S.C. § 1983, a plaintiff must
allege that (1) the defendant deprived him of a right secured under
the Constitution or federal law, and (2) the deprivation occurred
under color of state law.

Bingham v. Thomas, 654 F.3d 1171, 1175

(11th Cir. 2011)(citing Arrington v. Cobb County, 139 F.3d 865,
872 (11th Cir. 1998).

In addition, a plaintiff must allege and

establish an affirmative causal connection between the defendant’s
conduct and the constitutional deprivation.

Marsh v. Butler

County, Ala., 268 F.3d 1014, 1059 (11th Cir. 2001); Swint v. City
of Wadley, Ala., 51 F.3d 988, 999 (11th Cir. 1995); Tittle v.
Jefferson County Comm'n, 10 F.3d 1535, 1541 n.1 (11th Cir. 1994).
Plaintiff names his public defender, Robert McCormack, as the
sole defendant in this action.
the

Complaint,

plaintiff

Complaint at 1, 3.

attributes

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liability

on

According to
his

public

defender for failing to “comply with [his] requests that he file
motions with the court to procure exonerating evidence.”
5.

Id. at

As a result, plaintiff claims defense counsel is “not diligent,

grossly

negligence,

and

inefficient.”

Id.

at

6.

Plaintiff

requests, inter alia, that this Court “preserve the record and
render any/all appropriate measures” as relief.

Id. at 7.

Here, the Complaint is flawed and must be dismissed.
Complaint

does

not

establish

that

the

defendant,

the

defender, was acting under the “color of state law.”

The

public

A defense

attorney employed the Public Defender’s Office “does not act under
color of state law when performing a lawyer's traditional functions
as counsel to a defendant in a criminal proceeding."

Polk County,

et al. v. Dodson, 454 U.S. 312, 325 (1981) (footnote omitted);
Holt v. Crist, 233 F. App’x 900 (11th Cir. 2007).
the

public

defender

“works

under

canons

This is because
of

professional

responsibility that mandate his exercise of independent judgment
on behalf of the client” and because there is an “assumption that
counsel will be free of state control.”

Legal Servs. Corp. v.

Velazquez, 531 U.S. 533, 542 (2001) (quoting Polk County, 454 U.S.
321-322).
are

no

“[A] public defender’s obligations toward her client

different

attorney.”

than

Dodson,

454

the

obligations

U.S.

at

318.

of
As

appointed defense counsel is not a state actor.

any

other

such,

defense

plaintiff’s

Because the Court

finds that the Complaint has not satisfied the second element of

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a § 1983 action, the Court will not address whether the defendant’s
alleged wrongdoings meet the requirements of the first element.
To the extent plaintiff wishes to challenge his ongoing state
court criminal proceedings, plaintiff must first preserve his
grounds at the state court level and exhaust his state remedies
under the Florida Rules of Criminal Procedure.

Thereafter, if

convicted, plaintiff may file a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254 in the federal court.
ACCORDINGLY, it is hereby
ORDERED:
1.

The Complaint (Doc. #1) is DISMISSED, without prejudice,

pursuant to § 1915A, or § 1915(e)(2)(b)(ii).
2.

The Clerk of Court shall terminate all pending motions,

enter judgment accordingly, and close this case.
DONE and ORDERED in Fort Myers, Florida on this
of March, 2015.

SA: alr
Copies: All Parties of Record

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30th

day