Roundtree v. Davis
Filing
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OPINION AND ORDER ADOPTING the 6 Final Report and Recommendation and DISMISSING this action. Signed by Judge William S. Duffey, Jr on 11/14/2013. (anc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
FRANKLIN ROUNDTREE,
Plaintiff,
v.
1:13-cv-2975-WSD
SHAREE DAVIS,
Defendant.
OPINION AND ORDER
This matter is before the Court on Magistrate Judge J. Clay Fuller’s Final
Report and Recommendation (“R&R”) [6] on Plaintiff Franklin Roundtree’s civil
rights claims under 42 U.S.C. § 1983.
I.
BACKGROUND
Plaintiff Franklin Roundtree (“Plaintiff”), proceeding pro se, submitted an
undated letter to the Court, which was docketed on September 4, 2013, as a 28
U.S.C. § 2241 habeas corpus petition. Plaintiff alleged that Defendant Sharee
Davis (“Defendant”) committed fraud in connection with a plea Plaintiff entered in
a criminal action. On September 11, 2013, the Magistrate Judge ordered the Clerk
to convert Plaintiff’s case into a 42 U.S.C. § 1983 civil rights complaint and
conducted a frivolity review under 28 U.S.C. § 1915A.
In a separate action, filed on September 3, 2013, Plaintiff identifies
Defendant as his public defender. See Roundtree v. Hill, 1:13-cv-2953-WSD
(N.D. Ga., docketed Sept. 3, 2013). Plaintiff demands his immediate release. He
states that Defendant committed fraud by failing to secure for Plaintiff a
satisfactory bond for his release. Plaintiff also alleges that Defendant has refused
to answer his calls. The Magistrate Judge thus construed Plaintiff’s allegations
against Defendant as a civil rights action under 42 U.S.C. § 1983.
On October 30, 2013, the Magistrate Judge concluded that Plaintiff failed to
state a claim on which relief can be granted because Defendant, as Plaintiff’s
public defender, has immunity under 42 U.S.C. § 1983 for issues related to her
performance as an attorney. The Magistrate Judge further concluded that
Plaintiff’s demand to be released is required to be addressed through a habeas
corpus petition under 28 U.S.C. § 2241. Plaintiff has filed a separate habeas
petition, see Roundtree v. Hill, 1:13-cv-2953-WSD (N.D. Ga., docketed Sept. 3,
2013). The Magistrate Judge therefore concluded that Plaintiff’s demand for
release in this action should be dismissed. On October 30, 2013, a copy of the
R&R was mailed to Plaintiff. Plaintiff did not object to the R&R.
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II.
DISCUSSION
A.
Legal Standard
After conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or modify a magistrate
judge’s report and recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Crim. P. 59;
Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982) (per curiam), cert.
denied, 459 U.S. 1112 (1983). A district judge “shall make a de novo
determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). With
respect to those findings and recommendations to which a party has not asserted
objections, the Court must conduct a plain error review of the record. United
States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983), cert. denied, 464 U.S. 1050
(1984). Because Plaintiff did not object to the R&R, the Court reviews it for plain
error.
B.
Analysis
The Supreme Court noted that “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.” Polk County v. Dodson, 454 U.S. 312, 325
(1981) (ordering the dismissal of respondent’s § 1983 complaint against his public
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defender); see also Burns v. Jorandby, 332 F. App’x 602, 603 (11th Cir. 2009)
(citing Dodson and affirming dismissal of complaint against plaintiff’s former
public defender: “[N]either defendant was acting under color of state law, and
neither may be sued under section 1983”). Because Plaintiff’s claim relates to
Defendant’s performance as Plaintiff’s public defender, Defendant may not be held
liable under 42 U.S.C. §1983. The Court finds no plain error with the Magistrate
Judge’s conclusion that Plaintiff failed to state a claim. Plaintiff’s action is thus
required to be dismissed.
A plaintiff’s demand to be released may only asserted in a federal habeas
petition. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (holding that “when a
state prisoner is challenging the very fact or duration of his physical imprisonment,
and the relief he seeks is a determination that he is entitled to immediate release or
a speedier release from that imprisonment, his sole federal remedy is a writ of
habeas corpus”). Plaintiff has filed a separate habeas corpus action under 28
U.S.C. § 2241. See Roundtree v. Hill, 1:13-cv-2953-WSD (N.D. Ga., docketed
Sept. 3, 2013). Plaintiff’s release demand for release in this action is improper.
III.
CONCLUSION
Accordingly, for the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge J. Clay Fuller’s Final
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Report and Recommendation [6] is ADOPTED, and this action is DISMISSED.
SO ORDERED this 14th day of January, 2014.
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