Martinez v Phillips

Filing 7

OPINION AND ORDER DISMISSING case pursuant to 28 U.S.C. § 1915A. ***Civil Case Terminated. Signed by Judge Robert L Miller, Jr on 2/26/13. (mlc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION AT LAFAYETTE
NICOLAS B. MARTINEZ,
Plaintiff,
v.

JON P. PHILLIPS,
Defendant.

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CAUSE NO. 4:13-CV-13 RM

OPINION AND ORDER
Nicolas B. Martinez, a pro se prisoner, filed a complaint under 42 U.S.C. § 1983. (DE
1.) Under 28 U.S.C. § 1915A, the court must review the complaint and dismiss it if the
action is frivolous or malicious, states no claim, or seeks monetary relief against a
defendant who is immune from such relief. Courts apply the same standard under Section
1915A as when deciding a motion under FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6).
Lagerstrom v. Kingston, 463 F.3d 621, 624 (7th Cir. 2006). 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, 602-603 (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).

According to the complaint, Mr. Martinez was convicted in state court of various
drug offenses. He is suing Jon P. Phillips, the attorney who represented him in the criminal
case. He alleges that Mr. Phillips “failed to adequately protect the Plaintiff’s Constitutional
Rights and Liberties” during the criminal case, resulting in “improper incarceration.”
Mr. Martinez does not explain whether Mr. Phillips is a private attorney or a public
defender, but in any event, the claim against him cannot proceed. Private citizens cannot
be sued for constitutional violations, Savory v. Lyons, 469 F.3d 667, 670 (7th Cir. 2006), and
a public defender does not act under color of state law for purposes of 42 U.S.C. § 1983.
Polk County v. Dodson, 454 U.S. 312, 325 (1981) (“[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.”). To the extent Mr. Martinez might seek an order
declaring that his Sixth Amendment right to counsel was violated in the criminal case such
that he is being wrongfully imprisoned, this type of relief can only be pursued in a habeas
corpus petition. See Preiser v. Rodriguez, 411 U.S. 475 (1973).
For the reasons set forth above, this action is DISMISSED pursuant to 28 U.S.C.
§ 1915A.
SO ORDERED.
ENTERED: February 26 , 2013

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

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