Martin v. Michalos

Filing 3

OPINION AND ORDER re 1 PRO SE COMPLAINT filed by Joseph D Martin. This case is DISMISSED pursuant to 28 U.S.C. § 1915A. Signed by Judge Robert L Miller, Jr on 4/27/16. (cc: Joseph D Martin). (cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
JOSEPH D. MARTIN,
Plaintiff,
v.
PAULINE ANN MICHALOS,
Defendant.

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CAUSE NO. 3:16-CV-221 RM

OPINION AND ORDER
Joseph D. Martin, a pro se prisoner, filed a complaint pursuant to 42 U.S.C. § 1983
alleging that his family law attorney provided him with deficient representation regarding
child support issues pending in Elkhart Circuit/Superior Court. “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). Nevertheless,
pursuant to 28 U.S.C. § 1915A, the court must review the merits of a prisoner complaint.
“In order to state a claim under [42 U.S.C.] § 1983 a plaintiff must allege: (1) that defendants
deprived him of a federal constitutional right; and (2) that the defendants acted under color
of state law.” Savory v. Lyons, 469 F.3d 667, 670 (7th Cir. 2006).
Mr. Martin alleges that his lawyer provided him with poor representation during
his child support proceedings. This didn’t violate a federal constitutional right and the
lawyer was not acting under color of state law. See Polk County v. Dodson, 454 U.S. 312
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(1981) (A criminal defense attorney, even an appointed public defender, does not act under
color of state law.) This case presents no federal claim, and so must be dismissed.
Though it is usually necessary to permit a plaintiff the opportunity to file an
amended complaint when a case is dismissed sua sponte, see Luevano v. Wal-Mart, 722 F.3d
1014 (7th Cir. 2013), that is unnecessary where the amendment would be futile. Hukic v.
Aurora Loan Servs., 588 F.3d 420, 432 (7th Cir. 2009) (“[C]ourts have broad discretion to
deny leave to amend where . . . the amendment would be futile.”). That is the case situation
here: no amendment could make these allegations a constitutional violation, or make the
private attorney a state actor.
For the forgoing reasons, this case is DISMISSED pursuant to 28 U.S.C. § 1915A.
SO ORDERED.
ENTERED: April 27, 2016.

/s/ Robert L. Miller, Jr.
Judge
United States District Court

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