Housley v. Henry
MEMORANDUM OPINION & ORDER: 1)Housley's motion to waive payment of the filing and administrative fees 1 is GRANTED and payment of these fees is WAIVED. 2)To the extent that Housley's Complaint 2 alleges claims against Henry aris ing under federal law, including 42 U.S.C. § 1983 and the United States Constitution, such claims are DISMISSED WITH PREJUDICE. 3) The remaining claims of Housley's Complaint 2 are DISMISSED WITHOUT PREJUDICE. 4) The Court will enter an appropriate judgment. 5) This matter is STRICKEN from the active docket. Signed by Judge William O. Bertelsman on 11/6/2017.(ECO)cc: w/copy of Memorandum Opinion & Order mailed to Theodore Housley, pro se plaintiff, at address listed on the docket sheet.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT COVINGTON
Civil No. 2: 17-200-WOB
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Theodore Housley is a resident of Covington, Kentucky. Proceeding without counsel, he
has filed a civil rights complaint pursuant to 42 U.S.C. § 1983 [R. 2] and a motion to waive
payment of the filing and administrative fees. [R. 1] The information contained in Housley’s fee
motion indicates that he lacks sufficient assets or income to pay the $350.00 filing fee. Because
Housley has been granted pauper status in this proceeding, the $50.00 administrative fee is waived.
District Court Miscellaneous Fee Schedule, § 14.
The Court must conduct a preliminary review of Housley’s complaint because he has been
granted pauper status. 28 U.S.C. § 1915(e)(2). A district court must dismiss any claim that is
frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary
relief from a defendant who is immune from such relief. Hill v. Lappin, 630 F. 3d 468, 470-71
(6th Cir. 2010). When testing the sufficiency of Housley’s complaint, the Court affords it a
forgiving construction, accepting as true all non-conclusory factual allegations and liberally
construing its legal claims in the plaintiff’s favor. Davis v. Prison Health Servs., 679 F.3d 433,
437-38 (6th Cir. 2012).
Housley’s complaint asserts a claim under 42 U.S.C. § 1983 against Defendant Sara Henry,
identified as the public defender appointed to defend Housley in a criminal proceeding in the
Kenton Circuit Court in Kenton County, Kentucky. Housley alleges that he was first assigned an
attorney when he initially appeared in front of the Kenton Circuit Court on a failure to appear
warrant on October 3, 2016. According to Housley, he was unable to attend a hearing in his case
on October 5, 2016, because he had been taken to the St. Elizabeth Medical Center for a medical
emergency, although he was represented at the hearing by a public defender. Housley further
states that, as a result of the hearing, the judge who was assigned to the case withdrew. Housley
alleges that on October 7, 2016, he was released from the hospital and was taken back into custody
at the Kenton County Detention Center. According to Housley, for the next month, he had
difficulty finding out the name of the public defender assigned to his case. Once he was told it
was Henry, he alleges that he made multiple attempts to contact her, but that she was generally
nonresponsive. He then alleges that on November 2, 2016, at the suggestion of another inmate,
Housley had his fiancée contact Henry and request that his case be closed. He states that he was
released from the Kenton County Detention Center on November 3, 2016. [R. 2 at ¶¶ 13-22]
Housley’s complaint asserts that Henry’s conduct deprived him of his Fourteenth
Amendment right to due process of the law and, accordingly, Henry is liable to Housley pursuant
to 42 U.S.C. § 1983. [R. 2 at ¶ 24, 26] However, Henry, acting as Housley’s public defender, is
not a “state actor” subject to liability under Section 1983. Polk County v. Dodson, 454 U.S. 312,
324-25 (1981). In order to prevail in a § 1983 action, the plaintiff must show that he was deprived
of a constitutional right and that the deprivation occurred at the hands of defendant who was a
“state actor,” or acted under color of state law. See Gomez v. Toledo, 446 U.S. 635, 640 (1980);
Searcy v. City of Dayton, 38 F.3d 282, 286 (6th Cir. 1994). However, “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.” Polk County, 454 U.S. at 325. Because Housley’s complaint
is based upon Henry’s performance of these traditional functions as counsel, Housley fails to state
a claim upon which relief can be granted against Henry under § 1983.
In addition to his federal § 1983 claim, Housley also alleges that Henry’s conduct “did
violate her own policy, procedures, codes and customs under the Model Rules of Professional
Conduct Rule 1.4(a) 1, 3, 4, and 5(b) and Rule 8.4(a).” [R. 2 at ¶ 25] The relevant rules applicable
to an attorney practicing in Kentucky are the Kentucky Supreme Court’s Rules of Professional
Conduct. See generally Martello v. Santana, 874 F. Supp. 2d 658, 669-670 (E.D. Ky. 2012), aff'd,
713 F.3d 309 (6th Cir. 2013) (recognizing that the power to regulate attorney discipline in
Kentucky lies solely with the Supreme Court of Kentucky, pursuant to which it has enacted the
Kentucky Rules of Professional Conduct). Thus, to the extent that Housley alleges that Henry
violated these rules, this claim would be based on state law, not federal law.
A district court may “decline to exercise supplemental jurisdiction over a claim [if] the
district court has dismissed all claims over which it has original jurisdiction ...” 28 U.S.C.
§ 1367(c)(3). Where, as here, the Court has dismissed all of the plaintiff’s federal claims prior to
service of process, the Court concludes that the balance of judicial economy, convenience, fairness,
and comity all point toward declining supplemental jurisdiction. Carnegie–Mellon University v.
Cohill, 484 U.S. 343 (1988); Musson Theatrical, Inc. v. Federal Exp. Corp., 89 F.3d 1244, 1255
(6th Cir. 1996) (noting that “[i]f the court dismisses plaintiff’s federal claims pursuant to Rule
12(b)(1), then supplemental jurisdiction can never exist”, and that “[a]fter a 12(b)(6) dismissal,
there is a strong presumption in favor of dismissing supplemental claims.”). The Court will
therefore dismiss the plaintiff’s state law claims without prejudice.
Accordingly, IT IS ORDERED that:
Housley’s motion to waive payment of the filing and administrative fees [R. 1] is
GRANTED and payment of these fees is WAIVED.
To the extent that Housley’s Complaint [R. 2] alleges claims against Henry arising
under federal law, including 42 U.S.C. § 1983 and the United States Constitution, such claims are
DISMISSED WITH PREJUDICE.
The remaining claims of Housley’s Complaint [R. 2] are DISMISSED
The Court will enter an appropriate judgment.
This matter is STRICKEN from the active docket.
This 6th day of November, 2017.
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