Moise v. Long, Esq.

Filing 3

MEMORANDUM OPINION. Signed by Judge Richard D. Bennett on 6/28/2018. (jb5, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
RICHARD D. MOISE,

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Plaintiff,

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v

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NATHAN KYLE LONG, ESQ.,

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Defendant.

Civil Action No. RDB-18-1905

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MEMORANDUM OPINION

Richard D. Moise, a state inmate currently confined at the Wicomico County Detention
Center in Salisbury, Maryland, filed this civil rights complaint, along with a Motion to Proceed
in Forma Pauperis. Because he appears indigent the Motion (ECF 2) shall be granted. Moise
brings this case against his former defense attorney Nathan Kyle Long, for conduct undertaken
during the prosecution of Plaintiff. ECF 1.
At its core, a civil rights action under 42 U.S.C. § 1983 is directed to unlawful conduct
under color of law. See Owens v. Baltimore State’s Attorney Office, 767 F.3d 379 (4th Cir.
2014). Section 1983 of 42 U.S.C. provides, in part:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes
to be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress . . .
Section 1983 “‘is not itself a source of substantive rights,’ but merely provides ‘a method for
vindicating federal rights elsewhere conferred.’” Albright v. Oliver, 510 U.S. 266, 271 (1994)
(quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979)).
Moise’s civil rights claim against Long is subject to dismissal. Defense attorneys do not

act under color of state law even if they are appointed by the court. See Deas v. Potts, 547 F.2d
800, 800 (4th Cir. 1976); see also Hall v. Quillen, 631 F.2d 1154, 1155-56 (4th Cir. 1980).
While an attorney who conspires with a government official to violate constitutional
rights does act under color of state law, evidence of the conspiracy is required. See Tower v.
Glover, 467 U.S. 914, 920 (1984); Phillips v. Mashburn, 746 F.2d 782, 785 (11th Cir. 1984)
(holding plaintiff must make more than naked assertion of conspiracy). Here, generously
construing Moise’s Complaint, he has done nothing more than make conclusory claims
concerning a conspiracy. Such claims are insufficient.
By separate Order which follows, the Complaint shall be dismissed pursuant to 28 U.S.C.
§1915(e). Moise is advised that under 28 U.S.C. '1915(g) he will not be granted in forma
pauperis status if he has Aon 3 or more prior occasions, while incarcerated or detained in any
facility, brought an action or appeal in a court of the United States that was dismissed on the
grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted,
unless the prisoner is under imminent danger of serious physical injury.@

This dismissal is

Moise’s first strike.

_June 28, 2018______________
Date

______/s/______________________
RICHARD D. BENNETT
UNITED STATES DISTRICT JUDGE

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