Wingster v. Dekalb County Public Defender Office et al

Filing 2

ORDER AND OPINION DISMISSING CASE AS FRIVOLOUS pursuant to 28 USC 1915A, granting leave of absence for the purpose of dismissal only. Signed by Judge Thomas W. Thrash, Jr on 4/2/10. (dr)

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IN THE UNITED STATES DISTRI CT COURT JAMES N . ~An~ , Cler FO R THE NORTHERN D ISTRI CT OF GEORC~JA ATLANTA DIVIS ION -~ ~ ~e~"ry LANELLETTA NAY WINGSTER, GDC NO . 47 6270, Plaintiff,
V.

ASR

5 2010

PRISONER CIVIL RIGHTS 42 U.S .C . § 1983

DEKALB COUNTY PUBLIC DEFENDER'S OFFICE ; and JENNIFER SNYDER, Public Defender,

CIVIL ACTION NO . 1 :10-CV-0873-TWT

Defendants .

ORDER AND OPI N ION Plaintiff Lanelletta Nay Wingster, presently confined in the Georgia Diagnostic
and Classification Prison in Jackson, Georgia, has filed the instant pro se civil rights

action . (Doc . 1) . Plaintiff has not paid the $350 .00 filing fee that is required for civil actions or submitted a financial affidavit seeking leave to proceed in forma a~,u peris .
The matter is now before the Court for a 28 U .S .C . § 1915A frivolity determination . For the purpose of dismissal only, Plaintiff is hereby G RAN TE D leave to proceed in

forma pauperis .
L The Standard of Review for Screening Prisoner Civil Rights Actions Pursuant to 28 U .S .C . § 1915A(a), a federal court is required to screen "as soon

as practicable" a prisoner complaint "which seeks redress from a governmental entity

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or officer or employee of a governmental entity ." Section 1915A(b) requires a federal
court to dismiss a prisoner complaint that either : (1) is "frivolous, malicious, or fails

to state a claim upon which relief may be granted" ; or (2) "seeks monetary relief from a defendant who is immune from such relief ." To state a claim for relief under 42 U .S .C . § 1983, a plaintiff must allege that an act or omission committed by a person acting under color of state law deprived him of a right, privilege, or immunity secured by the Constitution or laws of the United States . Hale v . Talla oosa County, 50 F .3d 1579, 1582 ( 1 lth Cir . 1995). If a litigant
cannot satisfy these requirements, or fails to provide factual allegations in support of

the claims, then the complaint is subject to dismissal, pursuant to 28 U .S .C . § 1915A . See Bell Atlantic Corp . v. Twombly, 550 U .S . 544, 555-56 (2007) (the "complaint must be dismissed" when a plaintiff fails to plead "enough facts to state a claim to relief that is plausible on its face," not merely "conceivable") . See also Ashcroft v . Iabal, U.S . 129 S .Ct . 1937, 1951-53 (2009) (holding that Twombly "expounded the pleading standard for all civil actions," to wit, conclusory allegations that "amount to nothing more than a formulaic recitation of the elements of a constitutional . claim" are "not entitled to be assumed true," and, to escape

dismissal, complaint must allege facts sufficient to move claims "across the line from

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conceivable to plausible") ; Papasan v . Allain, 478 U.S . 2 6 5, 286 (1986) (the court accepts as true the plaintiff s factual contentions, not his or her legal conclusions that are couched as factual allegations) ; Beck v . Interstate Brands Corgi, 953 F .2d 1275, 1276 ( 11th Cir . 1992) (the court cannot read into a complaint non-alleged facts) . II . Dis cu ss i on

Plaintiff brings this action against the DeKalb County Public Defender's Office
and public defender Jennifer Snyder . (Doc . 1 at 1, 3) . Plaintiff contends that Ms . Snyder was constitutionally ineffective for "not representing [him] as told" during a probation violation hearing . (Id. ¶ IV) . Plaintiff states that he "was given 2 years in

prison because [he] was instructed by a mental health counselor to go home for family support ." (Id .) . Plaintiff seeks to recover over one million dollars in lost profits from his landscape business and record label . (Id.). The DeKalb County Public Defender's Office is not a legal entity subject to suit under 42 U .S .C . § 1983 . Ashley v . Colohan, No . CV 109-033, 2010 WL 322741, at
*3 (S .D . Ga. Jan. 27, 2010). Additionally, Plaintiff fails to state a claim against Ms .

Snyder because a public defender does not act under color of state law when
exercising independent professional judgment in representing a criminal defendant in a criminal case . Polk County v . Dodson, 454 U .S . 312, 324 (1981) . Finally, this

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Court cannot award Plaintiff the monetary relief he seeks because he has not alleged that his probation violation conviction has been reversed or otherwise called into question . Heck v . Hum hre , 512 U .S . 477, 486-487 (1994).
III . Co n c l usion Based on the foregoing, IT IS H E R E BY ORDERED that the instant fro se

civil rights action (Doc . 1) is DISMISSED pursuant to 28 U .S .C . § 1915A. , IT IS SO ORDERED th is _,g__ day of a, 4,P , 2010 .

THOMAS W. THRASH, JR. UNITED STATES DISTRICT JUDGE

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