Brightwell v. Whitney et al

Filing 7

MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 8/30/2011. (c/m 8/31/2011 rk) (rank, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
DAVID BRIGHTWELL
Plaintiff

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*

v.

CIVIL ACTION NO. DKC-11-1652

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D. SCOTT WHITNEY,
GERALDINE K. SWEENEY,
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GOVERNOR MARTIN O’MALLEY,
SOMERSET COUNTY ADMINISTRATOR *
Defendants
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MEMORANDUM OPINION
Seeking damages as well as declaratory and injunctive relief, Plaintiff, self-represented, filed
suit against Assistant Public Defenders D. Scott Whitney and Geraldine K. Sweeney, as well as
Governor Martin O’Malley and the “Somerset County Administrator.”

Plaintiff alleges that

Assistant Public Defender D. Scott Whitney committed legal malpractice, discriminated against
him, and provided ineffective assistance of counsel during Plaintiff=s state criminal and postconviction proceedings.

Plaintiff further alleges that Assistant Public Defender Geraldine K.

Sweeney also committed legal malpractice and provided ineffective assistance of counsel when she
failed to object to the allegedly improper polling of the jury during his criminal trial. Plaintiff
maintains that the “Somerset County Administrator” was also a party to this improper polling of the
jury. Plaintiff alleges that Governor O’Malley was aware that Defendants violated his rights as he
addressed a petition to Governor O’Malley requesting a full investigation of his claims, but the
Governor failed to take any action. ECF Nos. 1 & 5.

Plaintiff has filed a Motion for Appointment of Counsel. ECF No. 4. A federal district court
judge=s power to appoint counsel under 28 U.S.C. ' 1915(e)(1)1 is a discretionary one, and may be
considered where an indigent claimant presents exceptional circumstances. See Cook v. Bounds, 518
F.2d 779, 779 (4th Cir. 1975); see also Branch v. Cole, 686 F.2d 264, 266 (5th Cir. 1982). The
question of whether such circumstances exist in a particular case hinges on the characteristics of the
claim and the litigant. See Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984).
The court finds from its review of the Complaint that Plaintiff is able to adequately articulate
the facts and grounds for relief in the instant matter without notable difficulty. Furthermore, the
Court concludes that Plaintiff's complaint is not of undue complexity. In the exercise of its
discretion, the court shall deny Plaintiff's request for appointment of counsel.
Plaintiff’s Motion for Leave to Proceed in Forma Pauperis (ECF No. 2) shall be granted.
Because the plaintiff has been granted leave to proceed in forma pauperis, this court may review the
Complaint before service of process and dismiss the Complaint sua sponte if it has no factual or
legal basis. See Neitzke v. Williams, 490 U.S. 319 (1989); see also Denton v. Hernandez, 504 U.S.
25 (1992); Cochran v. Morris, 73 F.3d 1310 (4th Cir. 1996); Nasim v. Warden, 64 F.3d 951 (4th Cir.
1995).

Upon review of the Complaint, this court concludes that this action is subject to dismissal.
Two elements are essential to sustain an action under 42 U.S. C. ' 1983. Specifically,

Plaintiff must demonstrate that: (1) he suffered a deprivation of rights, privileges or immunities
secured by the Constitution and laws of the United States; and (2) the act or omission causing the
deprivation was committed by a person acting under color of law. See West v. Atkins, 487 U.S. 42,
48 (1988). Because there is no allegation that Defendants Whitney and Sweeney, state public
1

Under ' 1915(e)(1), a court of the United States may request an attorney to represent any person
unable to afford counsel.

2

defenders, were acting under color of law the claims against them shall be dismissed. See Polk
County v. Dodson, 454 U.S. 312 (1981); Hall v. Quillen, 631 F.2d 1154 (4th Cir. 1980) (holding
that there is no state action in the conduct of public defenders and attorneys appointed by the State of
Maryland.)
Additionally, Plaintiff=s claim against the “Somerset County Administrator” is also subject
to dismissal. There is no legal entity named ASomerset County Administrator.@ Because Defendant
ASomerset County Administrator@ is not a Aperson@ subject to suit or liability under ' 1983, Plaintiff=s
complaint must be dismissed.
Lastly, Plaintiff’s complaint against Governor O’Malley shall also be dismissed. Plaintiff
has alleged no personal conduct on the part of the Governor which deprived him of his civil rights;
rather, he claims that the Governor failed to act on a request he made for an investigation.
A separate Order shall be entered in accordance with this Memorandum Order.2

Date:

August 30, 2011

/s/
DEBORAH K. CHASANOW
United States District Judge

2 If Plaintiff believes his constitutional rights were violated during his criminal proceedings he is free to file a
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. §2254. The Clerk shall be directed to provide Plaintiff
with forms for doing so.

3