Harris v. Nelson

Filing 4

REPORT AND RECOMMENDATIONS regarding 1 Complaint filed by Joseph Harris...It is recommended that the pltfs complaint be dismissed as frivolous pursuant to 28:1915(e)(2)(B)(i)... Objections to R&R due by 11/17/2009. Signed by Magistrate Judge Stephen C. Riedlinger on 11/2/2009. (JDL, )

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

JOSEPH HARRIS (#368687) VERSUS OTHA CURTIS NELSON, SR., ET AL NOTICE Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the U. S. District Court. In accordance with 28 U.S.C. § 636(b)(1), you have ten days after being served with the attached report to file written objections to the proposed findings of fact, conclusions of law, and recommendations set forth therein. Failure to file written objections to the proposed findings, conclusions and recommendations within ten days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court. ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT. Baton Rouge, Louisiana, November 2, 2009. CIVIL ACTION NUMBER 09-927-JVP-SCR

STEPHEN C. RIEDLINGER UNITED STATES MAGISTRATE JUDGE

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA JOSEPH HARRIS (#368687) VERSUS OTHA CURTIS NELSON, SR., ET AL CIVIL ACTION NUMBER 09-927-JVP-SCR

MAGISTRATE JUDGE'S REPORT Pro se plaintiff, an inmate currently confined at Riverbend Detention Center, Lake Providence, Louisiana, filed this action pursuant to 42 U.S.C. § 1983 against attorney Otha Curtis Nelson, Sr., and Nelson & Nelson Law Firm. committed legal malpractice. Subsection (c)(1) of 42 U.S.C. § 1997e provides the following: The court shall on its own motion or on the motion of a party dismiss any action brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility if the court is satisfied that the action is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief. An in forma pauperis suit is properly dismissed as frivolous if the claim lacks an arguable basis either in fact or in law. Denton v. Hernandez, 504 U.S. 25, 112 S.Ct. 1728, 1733 (1992); Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 1831-32 (1989); Hicks v. Garner, 69 F.3d 22, 24 (5th Cir. 1995). A court may Plaintiff alleged that Nelson

dismiss a claim as factually frivolous only if the facts are

clearly baseless, a category encompassing allegations that are fanciful, fantastic, and delusional. 112 S.Ct. at 1733. Denton, 504 U.S. at 33-34,

Pleaded facts which are merely improbable or

strange, however, are not frivolous for section 1915(d) purposes. Id.; Ancar v. SARA Plasma, Inc., 964 1992). F.2d 465, 468 (5th Cir.

Dismissal under 28 U.S.C. §1915(d) may be made at any time

before or after service of process and before or after an answer is filed. Green v. McKaskle, 788 F.2d 1116, 1119 (5th Cir. 1986).

Plaintiff's allegations that his counsel committed legal malpractice may not be pursued through § 1983. An attorney,

whether retained or appointed in any proceeding, owes his only duty to his client and not to the public or the state. Dodson, 454 U.S. 312, 102 S.Ct. 445 (1981). Polk County v.

Because a private

attorney's role is independent from the role of the state, any attorney's conduct, by mere representation of his client, is not chargeable to the state. 1974). Hill v. McClellan, 490 F.2d 859 (5th Cir.

A private retained attorney does not act under color of

state law and cannot be held liable under the Civil Rights Act in the absence of an actionable conspiracy. Slavin v. Curry, 574 F.2d 1256 (5th Cir. 1978). Plaintiff has not alleged that Nelson

conspired with any state official to deprive him of his rights. Because it is clear that the plaintiff's claims have no arguable basis in fact or in law the complaint should be dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).

2

RECOMMENDATION It is the recommendation of the magistrate judge that the plaintiff's complaint be dismissed as frivolous pursuant to 28 U.S.C. §1915(e)(2)(B)(i). Baton Rouge, Louisiana, November 2, 2009.

STEPHEN C. RIEDLINGER UNITED STATES MAGISTRATE JUDGE

3