Webb v. Commonwealth of Kentucky Department of Public Advocacy et al

Filing 10

MEMORANDUM AND OPINION by Senior Judge Thomas B. Russell on 8/8/2017; a separate order shall enter.cc: plaintiff pro se, defendants (KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT PADUCAH
GREGORY RYAN WEBB

PLAINTIFF

v.

CIVIL ACTION NO. 5:17-CV-P81-TBR

KY. DEPT. OF PUBLIC ADVOCACY et al.

DEFENDANTS

MEMORANDUM OPINION
This is a pro se civil rights action brought by a convicted prisoner pursuant to 42 U.S.C.
§ 1983. The Court has granted Plaintiff Gregory Ryan Webb leave to proceed in forma pauperis.
This matter is before the Court for screening pursuant to 28 U.S.C. § 1915A. For the reasons set
forth below, the action will be dismissed.
I.
Plaintiff brings suit against three Defendants in this action – the Kentucky Department of
Public Advocacy (DPA); John Jefferson Johnson, a public defender at the DPA, in both his
official and individual capacities; and Leslie Thorn, a “case worker” at the DPA, in her officialcapacity only. Plaintiff claims that Defendant Johnson failed to represent him fairly in a state
court criminal proceeding. He accuses Defendant Johnson of “breach of trust; breach of duty;
dishonesty, unethical behavior; misinterpretation; and false statements of material facts.” He
specifically alleges that Defendant Johnson “lied to the Court” concerning a cell phone warrant;
waited too long to file a motion to suppress; spent “very little time preparing a motion for
probation;” pushed Plaintiff into a plea deal; and caused Plaintiff to lose “471 days jail credit due
to [Defendant] Johnson ‘showing’ [Plaintiff] the PSI right before court and not letting [Plaintiff]
see it.” Plaintiff concludes his complaint by stating that Defendant Johnson was negligent and

“prevented appropriate due process.” As relief, Plaintiff seeks compensatory and punitive
damages.
On August 2, 2017, Plaintiff filed an amended complaint (DN 9). In his amended
complaint, Plaintiff claims that Defendant Johnson “did not offer [Plaintiff] a reasonable
defense” and “ignored [Plaintiff’s] pleas for help.” Plaintiff further states that he smelled alcohol
on Defendant Johnson. Finally, Plaintiff claims that “the Court and Commonwealth’s Attorney
office is somewhat aware of [Defendant] Johnson’s faults but continue to appoint him to cases
which includes the Dept. of Public Advocacy to be responsible.” Plaintiff also requests an
increase in the amount of compensatory damages he seeks. Finally, the amended complaint
contains a second request for the appointment of an attorney.1
II.
Because Plaintiff is a prisoner seeking relief against governmental entities, officers,
and/or employees, this Court must review the instant action under 28 U.S.C. § 1915A. Under
§ 1915A, the trial court must review the complaint and dismiss the complaint, or any portion of
the complaint, if the court determines that it 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. See § 1915A(b)(1), (2); McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir.
1997), overruled on other grounds by Jones v. Bock, 594 U.S. 199 (2007). In order to survive
dismissal for failure to state a claim, “a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

1

Plaintiff previously filed a motion for the appointment of counsel which the Court denied by Memorandum and
Order on June 28, 2017 (DN 8).

2

“[A] district court must (1) view the complaint in the light most favorable to the plaintiff
and (2) take all well-pleaded factual allegations as true.” Tackett v. M & G Polymers, USA, LLC,
561 F.3d 478, 488 (6th Cir. 2009) (citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009)
(citations omitted)). “[A] pro se complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89,
94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). However, while liberal, this
standard of review does require more than the bare assertion of legal conclusions. See Columbia
Nat. Res., Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995). The Court’s duty “does not require
[it] to conjure up unpled allegations,” McDonald v. Hall, 610 F.2d 16, 19 (1st Cir. 1979),
or to create a claim for a plaintiff. Clark v. Nat’l Travelers Life Ins. Co., 518 F.2d 1167, 1169
(6th Cir. 1975). To command otherwise would require the Court “to explore exhaustively all
potential claims of a pro se plaintiff, [and] would also transform the district court from its
legitimate advisory role to the improper role of an advocate seeking out the strongest arguments
and most successful strategies for a party.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278
(4th Cir. 1985).
III.
“Section 1983 creates no substantive rights, but merely provides remedies for
deprivations of rights established elsewhere.” Flint ex rel. Flint v. Ky. Dep’t of Corr., 270 F.3d
340, 351 (6th Cir. 2001). Two elements are required to state a claim under § 1983. Gomez v.
Toledo, 446 U.S. 635 (1980). “[A] plaintiff must allege the violation of a right secured by the
Constitution and laws of the United States, and must show that the alleged deprivation was
committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).

3

“Absent either element, a section 1983 claim will not lie.” Christy v. Randlett, 932 F.2d 502,
504 (6th Cir. 1991).
Plaintiff’s claims fail against each Defendant. First, Plaintiff’s claim against the DPA
and his official-capacity claims against Defendants Johnson and Thorn must be dismissed
because they are barred by the Eleventh Amendment. The Sixth Circuit has held that “[t]he
Eleventh Amendment bars § 1983 suits against a state, its agencies, and its officials sued in their
official capacities for damages.” Cady v. Arenac Cty., 574 F.3d 334, 344 (6th Cir. 2009)
(citing Kentucky v. Graham, 473 U.S. 159, 169 (1985)). Kentucky courts have consistently
recognized that the DPA is a state agency for Eleventh Amendment purposes. See, e.g., Lowe v.
Ky. Court of Justice, No. 2:14-168-KKC, 2015 U.S. Dist. LEXIS 43527, at *6 (E.D. Ky. Apr. 2,
2015) (“Ky. Rev. Stat. 31.010 establishes DPA as state agency for Eleventh Amendment
purposes”) (citing Westermeyer v. Ky. Dep’t of Pub. Advocacy, No. 2:10-131-DCR, 2011 U.S.
Dist. LEXIS 21629, at * 9 (E.D. Ky. Mar. 3, 2011)).
Moreover, with regard to Plaintiff’s claims against Defendant Johnson in his individual
capacity, it is firmly established that a defense attorney, regardless of whether he is a public
defender or a private attorney, is not a state actor for purposes of § 1983. Polk Cty. v. Dodson,
454 U.S. 312, 325 (1981) (“[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.”);
Otworth v. Vanderploeg, 61 F. App’x 163, 165 (6th Cir. 2003) (“[A] lawyer representing a client
is not, by virtue of being an officer of the court, a state actor under color of state law within the
meaning of § 1983.”). Thus, Plaintiff’s individual-capacity claims against Defendant Johnson
must be dismissed for failure to state a claim upon which relief may be granted.

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Accordingly, the Court will dismiss this action by separate Order. As such, the Court
need not consider Plaintiff’s second request for the appointment of counsel.
Date:

August 8, 2017

cc:

Plaintiff, pro se
Defendants
4413.011

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