Weatherton v. O'Bannon et al

Filing 4

ORDER: IT IS ORDERED that the plaintiff shall have 21 days from the date of this order to file an amended complaint to allege specific facts against each of the named defendants sufficient to state a claim upon which relief can be granted. Failure to do so may result in dismissal of the plaintiffs complaint.. Signed by Magistrate Judge Stephen C. Riedlinger on 4/27/2011. (CMM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

BOBBY WEATHERTON (#A197387)
VERSUS

CIVIL ACTION

ROBIN C. O’BANNON, ET AL

NUMBER 11-157-RET-SCR
ORDER

Pro

se

plaintiff

Bobby

Weatherton,

a

pretrial

detainee

confined at Ascension Parish Jail, Donaldsonville, Louisiana, filed
this action pursuant to 42 U.S.C. § 1983 against Ascension Parish
Assistant District Attorney (ADA) Robin C. O’Bannon and public
defenders Susan K. Jones and Keith D. Crawford.

Plaintiff alleged

that Jones and Crawford conspired with ADA O’Bannon to deny him
effective assistance of counsel in violation of his constitutional
rights.
Subsection (c)(1) of 42 U.S.C. § 1997e provides the following:
(c) Dismissal.--(1) 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 1979 of the Revised Statutes of the
United States (42 U.S.C. § 1983), 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.
On a motion to dismiss for failure to state a claim under Rule
12(b)(6), the Court “must accept as true all of the factual

allegations contained in the complaint.”

Erickson v. Pardus, 551

U.S. 89, 94, 127 S.Ct. 2197, 2200 (2007).

“Factual allegations

must be enough to raise a right to relief above the speculative
level.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct.

1955 (2007). The Supreme Court recently expounded upon the Twombly
standard, explaining that “[t]o survive a motion to dismiss, 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, — U.S. —, 129 S.Ct. 1937, 1949 (2009) (quoting
Twombly, 550 U.S. at 570, 127 S.Ct. 1955).

“A claim has facial

plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.”

Id.

It follows that “where

the well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has alleged — but
it has not ‘show[n] — ‘that the pleader is entitled to relief.’”
Id. at 1950 (quoting Fed.R.Civ.P. 8(a)(2)).
“A document filed pro se is to be liberally construed ... and
a pro se complaint, however inartfully pleaded, must be held to
less stringent standards than formal pleadings drafted by lawyers.”
Erickson, 551 U.S. at 94, 127 S.Ct. at 2200 (citations omitted).
But even a pro se complainant must plead “factual matter” that
permits the court to infer “more than the mere possibility of
misconduct.”

Iqbal, 129 S.Ct. at 1950.
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The court need not accept

“a legal conclusion couched as a factual allegation,” or “naked
assertions [of unlawful misconduct] devoid of further factual
enhancement.”

Id. at 1949-50 (internal quotation marks omitted).

Plaintiff alleged that Jones and Crawford were appointed to
represent him in state criminal proceedings.

Plaintiff alleged

that Jones and Crawford conspired with ADA O’Bannon to deny him
effective assistance of counsel.

Specifically, the plaintiff

alleged that the defendants conspired to deny him a fair and
impartial jury trial, the right to prepare a meaningful defense, to
call lay and expert witnesses, to adduce physical evidence and to
have the physical evidence undergo scientific and expert testing,
to confront witnesses against him, to contest the admissibility of
other crimes evidence and to suppress illegally obtained evidence
and information.
To establish a cause of action based on conspiracy a plaintiff
must show that the defendants agreed to commit an illegal act.
Arseneaux

v.

Roberts,

726

F.2d

1022

(5th

Cir.

1982).

The

conspiracy allegations made by the plaintiff are conclusory, and
more than a blanket of accusation is necessary to support a § 1983
claim.

Tower v. Glover, 467 U.S. 914, 104 S.Ct. 2820 (1984); Lynch

v. Cannatella, 810 F.2d 1363 (5th Cir. 1987); Arseneaux v. Roberts,
supra.
Plaintiff’s conspiracy allegations are conclusory and fail to
state a claim upon which relief can be granted.

3

Therefore;
IT IS ORDERED that the plaintiff shall have 21 days from the
date of this order to file an amended complaint to allege specific
facts against each of the named defendants sufficient to state a
claim upon which relief can be granted.

Failure to do so may

result in dismissal of the plaintiff’s complaint.
Baton Rouge, Louisiana, April 27, 2011.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

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