Teen v. Peebles et al

Filing 11

ORDER DISMISSING CASE : IT IS ORDERED that Plaintiff's Complaint (Doc. 1) and this action are DISMISSED for failure to state a claim upon which relief may be granted. This dismissal is without prejudice to any other state tort claim or state or federal habeas action Plaintiff would like to bring. Plaintiff is ADVISED that this dismissal shall count as one of his allotted strikes under the provisions of 28 U.S.C. § 1915(g). Signed by Judge J. Phil Gilbert on 9/29/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ANTRELL ANTHONY TEEN, #461504,
Plaintiff,
vs.
MARK S. PEEBLES and
PEEBLES AND ASSOCIATES, LLC,
Defendants.

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Case No. 17−cv–00593−JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Antrell Teen, an inmate who is currently detained at St. Clair County Jail located
in Belleville, Illinois, brings this civil rights action pro se pursuant to 42 U.S.C. § 1983 against
the public defender who represented him in his state criminal case. (Doc. 1). Plaintiff claims
that he was provided with ineffective assistance of counsel. (Doc. 1, pp. 4-6, 9-28). He seeks
monetary relief against his court-appointed public defender, Attorney Mark Peebles and Peebles
and Associates, LLC. (Doc. 1, p. 7).
This case is now before the Court for a preliminary review of the Complaint pursuant to
28 U.S.C. § 1915A, which provides:
(a) Screening – The court shall review, before docketing, if feasible or, in any
event, as soon as practicable after docketing, a complaint in a civil action in which a
prisoner seeks redress from a governmental entity or officer or employee of a
governmental entity.
(b) Grounds for Dismissal – On review, the court shall identify
cognizable claims or dismiss the complaint, or any portion of the complaint, if the
complaint–
(1) is frivolous, malicious, or fails to state a claim on which
relief may be granted; or
(2) seeks monetary relief from a defendant who is immune
from such relief.

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An action or claim is frivolous if “it lacks an arguable basis either in law or in fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989). Frivolousness is an objective standard that refers
to a claim that any reasonable person would find meritless. Lee v. Clinton, 209 F.3d 1025, 102627 (7th Cir. 2000). An action fails to state a claim upon which relief can be granted if it does not
plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). The claim of entitlement to relief must cross “the line
between possibility and plausibility.” Id. at 557. At this juncture, the factual allegations of the
pro se complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577
F.3d 816, 821 (7th Cir. 2009).
Upon careful review of the Complaint and any supporting exhibits, the Court finds it
appropriate to exercise its authority under § 1915A and dismiss the Complaint and this action.
The Complaint
In his Complaint, Plaintiff alleges that he was denied the effective assistance of counsel
in his state criminal case. (Doc. 1, pp. 4-5, 9-28). According to a timeline he included in the
Complaint, Plaintiff was taken into custody on December 11, 2015. (Doc. 1, p. 9). He requested
a speedy trial during his arraignment on December 16 and 21, 2015. Id. Attorney Mark Peebles
was appointed as his public defender the following month. (Doc. 1, p. 4). Plaintiff met with his
attorney twice between January and April 2016. Id. He made his first court appearance with
counsel on April 28, 2016. Id. At the hearing, his case was set for trial on May 23, 2016. Id.
The trial date was moved to June 20, 2016. Id. Plaintiff was convicted following a jury trial on
June 23, 2016. Id.
Plaintiff sets forth numerous complaints about his legal representation in the criminal
matter. (Doc. 1, pp. 4-5, 9-28). Attorney Peebles was allegedly inaccessible to Plaintiff and his

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family. Id. He intentionally excluded Plaintiff from court hearings and other trial preparation
activities. Id. He refused to file motions on Plaintiff’s behalf and at his request, including
motions seeking a transfer of venue, a bond reduction, and dismissal of the pending charges. Id.
Plaintiff also alleges that his attorney was unfamiliar with the law. Id. He failed to strike biased
jurors or challenge the State’s use of certain jury instructions. Id. He failed to call certain
witnesses or competently cross-examine others. Id. As a result, Plaintiff was allegedly deprived
of the right to a speedy trial, trial by an impartial jury, and due process of law. Id.
Discussion
To facilitate the orderly management of future proceedings in this case, and in
accordance with the objectives of Federal Rules of Civil Procedure 8(e) and 10(b), the Court
deems it appropriate to organize the claim in the Complaint into the following enumerated count:
Count 1 -

Defendants provided Plaintiff with ineffective assistance of counsel in his
state criminal case, in violation of Plaintiff’s constitutional rights.

The parties and the Court will use this designation in all future pleadings and orders unless
otherwise directed by a judicial officer of this Court. The designation of this claim does not
constitute an opinion regarding its merits. Any claims that are not identified above but are
encompassed within the Complaint are considered dismissed without prejudice from this
action.
Count 1
The Complaint fails to state a claim upon which relief may be granted under 42 U.S.C.
§ 1983. It is well-settled that a plaintiff cannot proceed with a federal claim under § 1983
against a non-state actor. See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999);
Gayman v. Principal Fin. Servs., Inc., 311 F.3d 851, 852-53 (7th Cir. 2003). “Section 1983
creates a federal remedy against anyone who, under color of state law, deprives ‘any citizen of
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the United States . . . of any rights, privileges, or immunities secured by the Constitution and
laws.’” Planned Parenthood of Indiana, Inc. v. Commissioner of Indiana State Dept. Health,
699 F.3d 962, 972 (7th Cir. 2012) (quoting 42 U.S.C. § 1983). A defendant can never be held
liable under § 1983 for negligence or even gross negligence. Gomez v. Randle, 680 F.3d 859,
864 (7th Cir. 2012).
Both Attorney Peebles and his firm are considered non-state actors and are therefore not
subject to suit under § 1983. In Polk County v. Dodson, 454 U.S. 312 (1981), the Supreme Court
held that a court-appointed attorney, even if employed by the state, may not be sued under
§ 1983 for legal malpractice because such an attorney does not act “under color of state law.”
Dodson, 545 U.S. at 324-25. 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.”
Id. at 325. The Seventh Circuit has repeatedly reached the same conclusion. See Turner v.
Godinez, -- F. App’x --, 2017 WL 2323363 (7th Cir. May 26, 2017) (“public defenders were not
acting under color of state law and thus cannot be sued under § 1983”); Brown v. Wisconsin
Public Defender’s Office, 854 F.3d 916 (7th Cir. 2017) (prisoner incurred two strikes for filing
frivolous civil rights action and appeal against public defender’s office based on representation
of him in appeal); Swift v. Swift, 556 F. App’x 509, 510-511 (7th Cir. 2014) (public defenders
acting as criminal counsel do not act “under color of state law” and cannot be sued under
§ 1983); McDonald v. White, 465 F. App’x 544 (7th Cir. 2012) (same).
Plaintiff challenges the decisions that Attorney Peebles made in connection with his
representation of Plaintiff, including, but not limited to, his decision to file certain motions, strike
certain jurors, call particular witnesses, or impeach witness testimony. Plaintiff seeks monetary

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damages against Attorney Peebles and his firm for what amounts to a claim of legal malpractice.
In this context, public defenders are not “state actors” who are amenable to suit under § 1983.
This claim belongs in state court. In addition to possible relief under state tort law, a
prisoner also retains the right to initiate state and federal habeas corpus proceedings. See
Dodson, 454 U.S. 312, n. 18. While this Court expresses no opinion on the merits of either type
of action, the Complaint shall be dismissed without prejudice to Plaintiff pursuing a claim for
possible relief under state tort law or in a state or federal habeas action.

This case is

DISMISSED without prejudice.
Disposition
IT IS HEREBY ORDERED that COUNT 1 is DISMISSED without prejudice for
failure to state a claim upon which relief may be granted.
IT IS ORDERED that Defendants MARK PEEBLES and PEEBLES AND
ASSOCIATES, LLC are DISMISSED from this action without prejudice.
IT IS ORDERED that Plaintiff’s Motion for Recruitment of Counsel (Doc. 2) is
DENIED as well. There is no constitutional right to counsel in federal civil cases. Romanelli v.
Suliene, 615 F.3d 847, 851 (7th Cir. 2010); Johnson v. Doughty, 433 F.3d 1001, 1006 (7th Cir.
2006). Plaintiff identifies no impediments to proceeding in this matter pro se, such as mental
health, educational, language or other medical issues. (Doc. 3). He has some college experience
and demonstrated his ability to clearly articulate his claims in a coherent, well-organized
pleading. Id.
IT IS FURTHER ORDERED that Plaintiff’s Complaint (Doc. 1) and this action are
DISMISSED for failure to state a claim upon which relief may be granted. This dismissal is
without prejudice to any other state tort claim or state or federal habeas action Plaintiff would

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like to bring. Plaintiff is ADVISED that this dismissal shall count as one of his allotted “strikes”
under the provisions of 28 U.S.C. § 1915(g). A dismissal without prejudice may count as a
strike, so long as the dismissal is made because the action is frivolous, malicious, or fails to state
a claim. See Paul v. Marberry, 658 F.3d 702, 704 (7th Cir. 2011); Evans v. Ill. Dep’t of Corr.
150 F.3d 810, 811 (7th Cir. 1998).
Plaintiff’s obligation to pay the filing fee for this action was incurred at the time the
action was filed, thus the filing fee of $350.00 remains due and payable.
§ 1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).
The Clerk shall CLOSE THIS CASE and enter judgment accordingly.
IT IS SO ORDERED.
DATED: September 29, 2017
s/J. Phil Gilbert
U.S. District Judge

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See 28 U.S.C.