ROBINSON v. WINKLER-YORK

Filing 3

ENTRY - Plaintiff's 2 Motion for Leave to Proceed in forma pauperis is GRANTED. The complaint must be DISMISSED for failure to state a claim. Judgment consistent with this Entry shall now issue. Signed by Judge Tanya Walton Pratt on 8/12/2013. Copy Mailed. (JD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

JOSH ROBINSON,

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) Case No. 1:13-cv-1059-TWP-MJD
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Plaintiff,
vs.
MELISSA WINKLER-YORK,
Defendant.

Entry and Order Dismissing Action
A.
This matter is before the Court on Plaintiff Josh Robinson’s Complaint for damages and
request to proceed in forma pauperis. The assessment of even a partial initial filing fee is not
feasible at this time.

Therefore, the request to proceed in forma pauperis [Dkt. 2] is

GRANTED.
B.
Plaintiff Robinson is confined at an Indiana state prison. In the present action, brought
pursuant to 42 U.S.C. § 1983, Robinson has sued the attorney he hired to represent him in an
action for post-conviction relief challenging his conviction in an Indiana state court. He seeks
both compensatory and punitive damages.
Robinson’s lawsuit is brought pursuant to 42 U.S.C. § 1983. To state a claim under §
1983, a plaintiff must allege the violation of a right secured by the Constitution or laws of the
United States and must show that the alleged deprivation was committed by a person acting
under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

The necessary element of state action is absent as to Robinson’s claim. Under authority
established for more than a generation, private counsel does not act under color of state law
when representing a client in a criminal proceeding, whether the defendant was privately retained
or paid by public funds. See Polk County v. Dodson, 454 U.S. 312, 324 (1981) (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 case). In this Circuit an allegation of state involvement is necessary
to state a claim under § 1985(3) if “the federal right relied upon is one requiring an element of
state action.” Cohen v. Illinois Institute of Technology, 581 F.2d 658, 663-64 (7th Cir. 1978),
cert. denied, 439 U.S. 1135, 99 S.Ct. 1058, 59 L.Ed.2d 97 (1979). As such, the complaint must
be DISMISSED for failure to state a claim.
II.
Judgment consistent with this Entry shall now issue.
IT IS SO ORDERED.

08/12/2013
Date: _________________

Distribution:
JOSH ROBINSON
174914
MIAMI CORRECTIONAL FACILITY
Inmate Mail/Parcels
3038 West 850 South
BUNKER HILL, IN 46914

________________________
Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana