McVey v. Purvis et al

Filing 7

MEMORANDUM AND ORDER ENTERED: This matter is dismissed for failure to state a claim. Signed by U.S. Senior District Judge Sam A. Crow on 05/06/22. Mailed to pro se party Larry McVey by regular mail. (smnd)

Case 5:22-cv-03040-SAC Document 7 Filed 05/06/22 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
LARRY MCVEY,
Plaintiff,
v.

CASE NO. 22-3040-SAC

ANDREA PURVIS, et al.,
Defendants.
MEMORANDUM AND ORDER
Plaintiff filed this pro se civil rights case under 42 U.S.C. § 1983. The Court granted
Plaintiff leave to proceed in forma pauperis.

On April 5, 2022, the Court entered a

Memorandum and Order to Show Cause (Doc. 6) (“MOSC”) granting Plaintiff until May 2,
2022, in which to show good cause why his Complaint should not be dismissed or to file an
amended complaint to cure the deficiencies set forth in the MOSC. Plaintiff has failed to
respond by the Court’s deadline.
The Court found in the MOSC that Plaintiff’s claims are based on his state criminal case.
The Court found that: any federal claim challenging the validity of a conviction and sentence in
a state criminal case must be presented in habeas corpus and is not cognizable in a § 1983 action;
before Plaintiff may proceed in a federal civil action for monetary damages based upon an
invalid conviction or sentence, he must show that his conviction or sentence has been overturned,
reversed, or otherwise called into question, citing Heck v. Humphrey, 512 U.S. 477 (1994); it
appears that Plaintiff’s state criminal case is ongoing and therefore the Court may be prohibited
from hearing Plaintiff’s claims under Younger v. Harris, 401 U.S. 37, 45 (1971); to the extent
Plaintiff alleges excessive bail in his criminal case, the Court would also be prohibited from

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Case 5:22-cv-03040-SAC Document 7 Filed 05/06/22 Page 2 of 2

hearing Plaintiff’s claim under Younger; Plaintiff’s claims against the county prosecutor fail on
the ground of prosecutorial immunity; and Plaintiff has not shown that his state court defense
attorney was acting under color of state law as required under § 1983. See Polk Cty. v. Dodson,
454 U.S. 312, 318–19, 321–23 (1981) (assigned public defender is ordinarily not considered a
state actor because their conduct as legal advocates is controlled by professional standards
independent of the administrative direction of a supervisor); see also Vermont v. Brillon, 556
U.S. 81, 91 (2009); Dunn v. Harper County, 520 Fed. Appx. 723, 725-26, 2013 WL 1363797 at
*2 (10th Cir. Apr. 5, 2013) (“[I]t is well established that neither private attorneys nor public
defenders act under color of state law for purposes of § 1983 when performing traditional
functions as counsel to a criminal defendant.” (citations omitted)). A criminal defense attorney
does not act under color of state even when the representation was inadequate. Briscoe v. LaHue,
460 U.S. 325, 330 n.6 (1983).
The MOSC provides that “[i]f Plaintiff does not file an amended complaint within the
prescribed time that cures all the deficiencies discussed herein, this matter will be decided based
upon the current deficient Complaint and may be dismissed without further notice for failure to
state a claim.” (Doc. 6, at 9.) Plaintiff has failed to respond by the Court’s deadline and has
failed to show good cause why his Complaint should not be dismissed for failure to state a claim.
IT IS THEREFORE ORDERED THAT this matter is dismissed for failure to state a
claim.
IT IS SO ORDERED.
Dated May 6, 2022, in Topeka, Kansas.
s/ Sam A. Crow
SAM A. CROW
U. S. Senior District Judge

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