Rivera v. Frieden

Filing 5

MEMORANDUM AND ORDER ENTERED: Plaintiff is granted to and including September 20, 2013, to supply the court with a certified copy of his institutional financial records for the six months preceding June 2013 from all facilities in which he was incar cerated during that period. Plaintiff is granted to and including September 30, 2013, to show cause why this matter should not be dismissed for failure to state a claim upon which relief may be granted. The failure to file a timely response may result in the dismissal of this matter without additional prior notice to the plaintiff. Signed by Senior District Judge Sam A. Crow on 8/21/2013. (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,
Defendant.

MEMORANDUM AND ORDER

This matter is a civil rights action filed pursuant to 42 U.S.C.
§ 1983. Plaintiff, a prisoner in state custody, proceeds pro se and
seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
The motion to proceed in forma pauperis
Pursuant to § 1915(a)(1), a prisoner seeking to file a civil
action without prepayment of fees must submit an affidavit that
includes a statement of all assets, a statement of the nature of the
complaint, and the affiant’s belief that he is entitled to redress.
The court files the motion filed by plaintiff satisfies these
requirements.
Under § 1915(a)(2), a prisoner also must submit a certified copy
of the prisoner’s institutional account for the six months immediately
preceding the filing of the action from an appropriate official from
each

correctional

facility

in

which

the

plaintiff

is

or

was

incarcerated. Plaintiff has not yet submitted this information and
will be directed to supplement the record.
Screening
A federal court must conduct a preliminary review of any case

in which a prisoner seeks relief against a governmental entity or an
officer or employee of such an entity. See 28 U.S.C. §1915A(a).
Following this review, the court must dismiss any portion of the
complaint that is frivolous, malicious, fails to state a claim upon
which relief may be granted, or seeks monetary damages from a defendant
who is immune from that relief. See 28 U.S.C. § 1915A(b).
To avoid a dismissal for failure to state a claim, a complaint
must set out factual allegations that “raise a right to relief above
the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007). The court accepts the well-pleaded allegations in the
complaint as true and construes them in the light most favorable to
the plaintiff. Id. However, “when the allegations in a complaint,
however, true, could not raise a [plausible] claim of entitlement to
relief,” the matter should be dismissed. Id. at 558.
Pleadings filed by a pro se litigant must be liberally construed.
Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, a court need not
accept “[t]hreadbare recitals of the elements of a cause of action
supported by mere conclusory statements.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009).
Analysis
Plaintiff proceeds pursuant to 42 U.S.C. § 1983, which imposes
liability for actions under the color of state law that deprive one
of “rights, privileges, or immunities secured by the Constitution and
laws [of the United States].”
“The traditional definition of acting under color of state law
requires that the defendant in a § 1983 action have exercised power
‘possessed by virtue of state law and made possible only because the
wrongdoer is clothed with the authority of state law.’” West v. Atkins,

487 U.S. 42, 49 (1988).
Plaintiff claims the defendant, his defense attorney, failed to
provide him with constitutionally adequate representation.

This

claim is subject to dismissal because it is settled that an attorney
is not a “state actor” for purposes of § 1983. See Briscoe v. LaHue,
460 U.S. 325, 329 n.6 (1983)(“even though the defective performance
of defense counsel may cause the trial process to deprive an accused
person of his liberty in an unconstitutional manner, the lawyer who
may be responsible for the unconstitutional state action does not
himself act under color of state law within the meaning of § 1983”)
and Barnard v. Young, 720 F.2d 1188, 1189 (10th Cir. 1983)(“private
attorneys, by virtue of being officers of the court, do not act under
color of state law within the meaning of section 1983”).
Accordingly, the court is considering the dismissal of this
matter for failure to state a claim upon which relief may be granted.
IT IS, THEREFORE, BY THE COURT ORDERED plaintiff is granted to
and including September 20, 2013, to supply the court with a certified
copy of his institutional financial records for the six months
preceding June 2013 from all facilities in which he was incarcerated
during that period.
IT IS FURTHER ORDERED that plaintiff is granted to and including
September 20, 2013, to show cause why this matter should not be
dismissed for failure to state a claim upon which relief may be
granted. The failure to file a timely response may result in the
dismissal of this matter without additional prior notice to the
plaintiff.
A copy of this order shall be transmitted to the plaintiff.

IT IS SO ORDERED.
DATED:

This 21st day of August, 2013, at Topeka, Kansas.

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