Rivera v. Frieden

Filing 10

MEMORANDUM AND ORDER ENTERED: Plaintiff's motion 2 for leave to proceed in forma pauperis is granted. This matter is dismissed for failure to state a claim upon which relief can be granted. Signed by Senior District Judge Sam A. Crow on 11/26/2013. (Mailed to pro se party Mario Rivera, Jr. by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MARIO RIVERA, JR.,
Plaintiff,
v.

CASE NO. 13-3128-SAC

TIMOTHY A. FRIEDEN,
Defendants.

MEMORANDUM AND ORDER

This matter is a civil rights action filed pursuant to 42 U.S.C.
§ 1983 by a prisoner in state custody. Plaintiff submitted the initial
partial filing fee as directed, and the court grants leave to proceed
in forma pauperis.1
Plaintiff claims the sole defendant, his criminal defense
attorney, failed to provide him with constitutionally adequate
representation. By its earlier order, the court advised plaintiff this
claim is subject to dismissal because a defense attorney does not act
under color of state law within the meaning of § 1983. See Briscoe
v. LaHue, 460 U.S. 325, 329 n. 6 (1983) and Barnard v. Young, 720 F.2d
1188, 1189 (10th Cir. 1983). The court has examined the plaintiff’s
response to that order but finds no basis to conclude that this matter
should not be dismissed. A criminal defense attorney is not a proper
defendant to a civil rights action under § 1983. See Polk County v.
Dodson, 454 U.S. 312, 324-25 (1981)(holding that a public defender
does not act under color of state law when representing a defendant).
1

Plaintiff will be required to pay the balance of the $350.00 filing fee in
installments calculated pursuant to 28 U.S.C. § 1915(b)(2).

IT IS, THEREFORE, BY THE COURT ORDERED plaintiff’s motion for
leave to proceed in forma pauperis (Doc. 2) is granted. Collection
action shall continue pursuant to 28 U.S.C. § 1915(b)(2) until
plaintiff satisfies the $350.00 filing fee.
IT IS FURTHER ORDERED this matter is dismissed for failure to
state a claim upon which relief can be granted.
Copies of this order shall be transmitted to the plaintiff and
to the finance office of the facility where he is incarcerated.
IT IS SO ORDERED.
DATED:

This 26th day of November, 2013, at Topeka, Kansas.

S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge