Bergeron v. Copes

Filing 3

ORDER AND OPINION Dismissing Case as Frivolous for failure to state a claim upon which relief may be granted pursuant to 28 USC 1915A; granting 2 Request to Proceed IFP for the purpose of dismissal only. Signed by Judge Thomas W. Thrash, Jr on 3/8/10. (dr)

FILED I N Cf-iAM81=-r THOMAS W. THF IASH !9 . 5 . D. C. Atlanft

0 2010 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORG IAMES N . HATT E hl . C By, ATLANTA DIVISION

Dep

C lerk

JACOB ANDREW BERGERON, PRISONER CIVIL RIGHTS Plaintiff, 42 U .S .C . § 1983
V.

CEYLON N . COPES, Assistant Public Defender, Defendant .

CIVIL ACTION NO. 1 :10-CV-295-TWT

ORDER AND OPINION
Plaintiff, Jacob Andrew Bergeron, an inmate at the Douglas County Jail in

Douglasville, Georgia, has filed the instant fro se civil rights action pursuant to 42 U .S .C . § 1983 . The matter is now before the Court for a 28 U .S .C . § 1915A
screening .

I . 28 U. S . C . § 19 1 5A Review Pursuant to 28 U .S .C . § 1915A, a federal court is required to conduct an initial
screening of a prisoner complaint to determine whether the action is either : (1)

frivolous, malicious or fails to state a claim on which relief may be granted ; or, (2) seeks monetary relief against a defendant who is immune from such relief . A claim is frivolous when it appears from the face of the complaint that the factual allegations are "clearly baseless" or that the legal theories are "indisputably meritless ." Carroll

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v . Gross, 984 F .2d 392, 393 (11th Cir. 1993) . A complaint may be dismissed for failure to state a claim when it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Brower v . County of I n yo , 489 U .S . 593, 597 (1989) . In order to state a claim for relief under 42 U .S .C . § 1983, a plaintiff must allege that : (1) an act or omission deprived him of a right, privilege, or immunity secured by the Constitution or a statute of the United States ; and (2) the act or
omission was committed by a person acting under color of state law . See Hale v .

Tallap oosa CountX, 50 F .3d 1579, 1581 (11th Cir . 1995) . If a litigant cannot satisfy these requirements, or fails to provide factual allegations in support of the claim,
then the complaint is subject to dismissal, pursuant to 28 U .S .C . § 1915A .

II . Plaintiff s Allegations Plaintiff sues assistant public defender Ceylon N . Copes, alleging that Copes has been ineffective in his state criminal proceedings . Plaintiff contends that Copes has failed to demand a speedy trial and failed to depose or otherwise preserve the testimony of three witnesses for the defense that are now no longer available .

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Plaintiff also contends that Copes has failed to seek discovery . Plaintiff seeks
damages and appointment of new counsel in his state criminal proceedings . III . Discussion

Plaintiff's § 1983 action against Copes is subject to dismissal, as Plaintiff has failed to allege that Copes acted under "color of state law" or conspired with a state
actor . See Polk County v . Dodson, 454 U.S . 312, 325 (1981) ("a public defender

does not act under color of state law when performing a lawyer's traditional functions as counsel to a defendant in a criminal proceeding") ; Rayburn v._Ho gue, 241 F .3d
1341, 1347 (11th Cir . 2001) ("Only in rare circumstances can a private party be

viewed as a [s]tate actor for section 1983 purposes .") ; Wahl v . Mover, 773 F .2d 1169, 1 173 {1 lth Cir . 1985) . Thus, his complaint should be dismissed . Furthermore, Plaintiff's challenge to his state criminal proceedings cannot be
brought in this § 1983 action . A habeas corpus petition is the proper vehicle for

raising claims that may affect the fact or duration of a criminal defendant's
confinement . See Preiser v . Rodriguez, 411 U .S . 475, 488-490 (1973) . Thus,

Plaintiff must seek habeas corpus relief .

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However, this Court will not construe Plaintiff s complaint as a habeas corpus
petition since it appears that Plaintiff's state criminal proceedings are ongoing . The Supreme Court in Younger , v . Harris, 401 U . S . 37 (1971) , held that , except in

extraordinary circumstances, a federal court must abstain from deciding issues
implicated in an ongoing criminal proceeding in state court . Younger, 401 U.S . at

53-54 ; Maharaj v . _ Sec'y f'or_Dep't of Corr ., 304 F .3d 1345, 1 348 {1 lth Cir . 2002) . _ If the relief sought would - disrupt the state criminal proceeding, it is generally prohibited by the Younger doctrine . In the instant case, it appears that Plaintiff's state criminal proceedings are ongoing . Thus, this Court must abstain from interfering in Plaintiff's state criminal action. Extraordinary circumstances may justify intervention in a situation where a petitioner alleges great, immediate and irreparable injury or flagrant violation of an express constitutional prohibition . See Young~er, 401 U.S . at 46 . However, Plaintiff has not alleged irreparable injury or a flagrant violation of his rights . Thus, his complaint is subject to dismissal.

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IV . Conclusion

Based on the foregoing, IT IS ORDE RE D that the instant action is hereby DISMISSED for failure to state a claim upon which relief may be granted pursuant to 28 U .S .C . § 1915A. IT IS F URTH E R ORDERED that Plaintiff's request to proceed in forma
nauperi~ [Doe . 2] be GRA NTED for the purpose of dismissal only .

IT IS SO ORDERED this Ir day of W4,,-e-4 -, 20 10 .

THOMAS W. THRASH, JR . UNITED STATES DISTRICT JUDGE

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