Westberry v. Perlman et al
MEMORANDUM OPINION & ORDER: 1. Plaintiff's Complaint 1 is DISMISSED with prejudice. 2. This action is DISMISSED as frivolous and STRICKEN from Court's docket. Signed by Judge Danny C. Reeves on 4/13/2018.(GLD)cc: Pro Se Plaintiff, Defendants via U.S. Mail
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NAVARIUS SAVELL WESTBERRY,
PAM D. PERLMAN and
Civil Action No. 5: 18-196-DCR
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Plaintiff Navarius Westberry is a prisoner currently incarcerated at United States
Penitentiary-Hazelton in Bruceton Mills, West Virginia. Proceeding without a lawyer, he has
filed a civil rights Complaint seeking monetary damages based on allegations that the attorneys
appointed by the Court to represent him in his underlying criminal case denied him his Fifth
Amendment due process rights. [Record No. 1] Westberry has paid the filing fee in full.
[Record No. 2]
On August 15, 2016, Westberry pleaded guilty to one count of conspiring to distribute
100 grams or more of heroin in violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count 1) and one
count of conspiracy to distribute a mixture of substance containing a detectable amount of
fentanyl, the use of which result in an overdose death in violation of 21 U.S.C. §§ 841(a)(1)
and 846 (Count 2). Westberry was sentenced on January 9, 2017, to imprisonment for a term
of forty years on Count 1 and life imprisonment on Count 2, to be served concurrently, for a
total term of life imprisonment. United States v. Westberry, 5: 15-CR-114-DCR-REW-1 (E.D.
Ky. 2015). Westberry’s appeal of his conviction and sentence is currently pending before the
United States Court of Appeals for the Sixth Circuit. United States v. Westberry, No. 17-5033
(6th Cir. 2017).
In his present Complaint, Westberry alleges that the court-appointed attorneys in his
criminal case (Defendants Pam Perlman and William Swinford) denied him his Fifth
Amendment due process rights by denying his requests to hire a medical expert and to provide
him medical records relating to a charge of conspiracy to distribute a mixture of substance
containing a detectable amount of fentanyl, the use of which result in serious bodily injury.1
Westberry seeks “10 million dollars, attorney fees, [and] defendants to be held accountable for
their unjust and unprofessional actions.” [Record No. 1 at p. 12]
Westberry’s Complaint will be dismissed.
Although Westberry is a prisoner
proceeding pro se, he is not proceeding in forma pauperis, nor is he asserting claims against
government officials. Thus, the Court lacks authority to screen his claims under 28 U.S.C. §§
1915(e)(2) or 1915A. However, “a district court may, at any time, sua sponte dismiss a
complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules
of Civil Procedure when the allegations of a complaint are totally implausible, attenuated,
unsubstantial, frivolous, devoid of merit, or no longer open to discussion.” Apple v. Glenn,
183 F.3d 477, 479 (6th Cir. 1999).
Here, Westberry’s Fifth Amendment denial of due process claim is, in essence, an effort
to recover civil damages for ineffective assistance of counsel. This claim is not cognizable in
a civil suit for damages. Although the doctrine announced in Bivens v. Six Unknown Federal
Narcotics Agents, 403 U.S. 388 (1971), allows a federal prisoner to bring a money-damages
This charge was later dismissed by the United States. United States v. Westberry, 5: 15-CR114-DCR-REW-1 (E.D. Ky. 2015).
suit against federal officers who violated his constitutional rights in certain contexts, to bring
a Bivens claim, Westberry must allege that Perlman and Swinford were federal officers acting
under color of federal law.
However, Defendants Perlman and Swinford are private
individuals, and the Fifth Amendment Due Process Clause “applies to action by the
government, not action by private entities.” United States v. Folad, 877 F.3d 250, 252 (6th
Cir. 2017) (citing Flagg Bros. Inc. v. Brooks, 436 U.S. 149 (1978)).
“[T]here is no
constitutional right to be free from harm inflicted by private actors. A due process claim lies
only against a governmental defendant.” Krukemyer v. Forcum, 475 F. App’x 563, 566 (6th
Neither public defenders nor court-appointed criminal defense counsel qualify as state
or federal actors. See Polk County v. Dodson, 454 U.S. 312, 325, 102 S.Ct. 445, 70 L. Ed.2d
509 (1981) (holding that a public defender is not a state actor when performing the traditional
functions as defense counsel); Anderson v. Sonenberg, 111 F.3d 962 (D.C.Cir.1997)
(unpublished table decision) (“[P]ublic defenders and other attorneys appointed to represent
defendants in federal proceedings are not federal officials for purposes of [a suit for money
damages under] Bivens.”). Indeed, “an attorney appointed by a federal court is not a federal
officer for purposes of a Bivens-type action.” Haley v. Walker, 751 F.2d 284, 285 (8th
Cir.1984). See also Krukemyer, 475 F. App’x at 566 (“It is well-settled that a lawyer
representing a private client is not a state actor acting ‘under color of law.’”) (citations
In short, a Fifth Amendment civil rights action cannot be maintained against an
appointed lawyer, even one employed by the federal government, because he or she does not
act under color of federal law. See Polk County, 454 U.S. at 317-18; Haley v. Walker, 751
F.2d 284, 285 (8th Cir.1984); Cox, 685 F.2d at 1099. As Defendants Perlman and Swinford
are neither state nor federal actors, they are not amendable to suit in this action. See Cox v.
Hellerstein, 685 F.2d 1098, 1099 (9th Cir.1982) (because public defender does not act under
color of federal law in performing functions as a lawyer to an indigent defendant in a federal
criminal proceeding, plaintiff’s Bivens action against public defender suffered from a fatal
jurisdictional defect requiring dismissal). Because Westberry’s Fifth Amendment claims
against Perlman and Swinford are totally implausible, frivolous and devoid of merit, his
Complaint will be dismissed for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P.
12(b)(1) and Apple v. Glenn, 183 F.3d 477 (6th Cir. 1999).
But even if Perlman and Swinford were considered to be federal actors acting under
color of federal law, Westberry’s purported civil rights claims directly challenge the validity
of his underlying federal conviction and sentence would be barred by Heck v. Humphrey, 512
U.S. 477 (1994). Under Heck, to recover damages for “harm caused by actions whose
unlawfulness would render a conviction or sentence invalid,” a plaintiff must first prove that
his “conviction or sentence has been reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized to make such determination, or called into
question by a federal court’s issuance of a writ of habeas corpus.” 512 U.S. at 486-87 (footnote
omitted). Therefore, Westberry’s claims would be barred under Heck at this time because his
criminal conviction in United States v. Westberry, 5:15-CR-114-DCR-REW-1 (E.D. Ky. 2015)
has not been invalidated.
Regardless, as the Court finds that Westberry’s civil rights claims for damages against
Perlman and Swinford brought pursuant to Bivens are frivolous, dismissal of Westberry’s
Complaint with prejudice is appropriate. Accordingly, it is hereby
ORDERED as follows:
Plaintiff Westberry’s Complaint [Record No. 1] is DISMISSED with prejudice.
This action is DISMISSED as frivolous and STRICKEN from the Court’s
This 13th day of April, 2018.
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