Roy v. Tavitas
Filing
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OPINION AND ORDER DISMISSING CASE 12 The MOTION to Present Additional Evidence filed by Kevin D Roy is GRANTED, and this Court has considered the evidence submitted in that Motion. However, for the reasons stated, this case is DISMISSED pursuant to 28U.S.C. § 1915A. Signed by Judge Rudy Lozano on 7/11/11. cc: pltf (kjp) Modified on 7/11/2011 (kjp) to indicate copies sent.
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
KEVIN D. ROY,
Plaintiff,
vs.
ADAM TAVITAS,
Defendant.
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CAUSE NO. 2:11-CV-110
OPINION AND ORDER
This matter is before the Court on: (1) the amended complaint
filed under 42 U.S.C. § 1983 (DE #10) by Kevin D. Roy, a pro
se prisoner, on June 1, 2001; and (2) the Motion to Present
Additional Evidence, filed by Plaintiff, Kevin D. Roy, on June 21,
2011 (DE #12).
For the reasons set forth below, the Motion to
Present Additional Evidence (DE #12), is GRANTED, and this Court
has considered the evidence submitted in that Motion. However, for
the reasons stated below, this case is DISMISSED pursuant to 28
U.S.C. § 1915A.
BACKGROUND
Roy brought this action on March 29, 2011 (DE #1).
On June 1,
2011, he filed an amended complaint (DE #10).
DISCUSSION
Pursuant to 28 U.S.C. § 1915A, the Court must review a
prisoner complaint and dismiss it if the action is frivolous or
malicious, fails to state a claim upon which relief may be granted,
or seeks monetary relief against a defendant who is immune from
such relief. 28 U.S.C. § 1915A.
The Court applies the same
standard as when deciding a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6).
624 (7th Cir. 2006).
Lagerstrom v. Kingston, 463 F.3d 621,
To survive dismissal, a complaint must state
a claim for relief that is plausible on its face.
Bissessur v.
Indiana Univ. Bd. of Trs., 581 F.3d 599, 602-03 (7th Cir. 2009).
“A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Id. at 603.
The court must bear in mind that “[a] document filed pro se is to
be liberally construed, and a pro se complaint, however inartfully
pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94
(2007) (quotation marks and citations omitted).
Here, Roy is suing his public defender, Adam Tavitas, for
providing ineffective assistance in a state criminal case.
#10.)
(DE
To state a claim under 42 U.S.C. § 1983, the plaintiff must
establish the deprivation of a right secured by the Constitution or
laws of the United States.
Rodriguez v. Plymouth Ambulance
Service, 577 F.3d 816, 822 (7th Cir. 2009).
He also must show that
the alleged deprivation was committed by a person acting under the
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color of state law.
Id.
The Supreme Court has held that, “a
public
not
act
defender
performing
a
does
lawyer’s
under
traditional
defendant in a criminal proceeding.”
U.S. 312, 325 (1981).
color
of
functions
state
as
law
counsel
when
to
a
Polk County v. Dodson, 454
Accordingly, Tavitas is not a state actor
who can be sued for constitutional violations under 42 U.S.C.
§ 1983.
In limited situations, a private citizen may be held liable
under 42 U.S.C. § 1983 when he conspires with a public employee to
deprive another person of his constitutional rights. See Wilson v.
Price, 624 F.3d 389, 394 (7th Cir. 2010).
It appears Roy may be
attempting to allege such a claim, as he makes general assertions
about Tavitas conspiring with the prosecutor. (DE #10 at 8-10.)
However, a plaintiff “may not avoid dismissal . . . simply by
attaching bare legal conclusions to narrated facts which fail to
outline the basis of their claims.”
Wilson, 624 F.3d at 394; see
also Loubser v. Thacker, 440 F.3d 439, 443 (7th Cir. 2006) (“bare”
allegation of conspiracy is insufficient to state a claim).
At
most, Roy alleges that a conspiracy existed between Tavitas and the
prosecutor because Tavitas advised him to plead guilty even though
Roy wanted to proceed to trial. (See DE #10 at 8-10.)
This alone
does not show a conspiracy, because it is equally plausible that
Tavitas believed it was in Roy’s best interest to plead guilty in
light of the evidence against him. Roy has failed to allege a
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plausible conspiracy claim involving his public defender and the
prosecutor and, accordingly, his complaint must be dismissed.
CONCLUSION
For the reasons set forth above, this action is DISMISSED
pursuant to 28 U.S.C. § 1915A.
DATED: July 11, 2011
/s/ RUDY LOZANO, Judge
United States District Court
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