Everette Jr. v. Office of the Public Defender et al
Filing
2
MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 12/31/2015. (C/M 12/31/2015 aos, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ROBERT L. EVERETTE, JR.
Plaintiff,
v.
*
*
OFFICE OF THE PUBLIC DEFENDER
DISTRICT #8
COUNSEL HOSSIEN PARVIZIAN, ASST.
PUBLIC DEFENDER
Defendants.
CIVIL ACTION NO. DKC-15-3956
*
*
*
*****
MEMORANDUM OPINION
On December 23, 2015, the Court received for filing this 42 U.S.C. § 1983 Complaint for
monetary damages. Robert Everette, Jr. (“Everette”), a state inmate housed at the Brockbridge
Correctional Facility in Jessup, Maryland, filed suit against the Office of the Public Defender and
Assistant Public Defender Hossien Parvizian. ECF No. 1. According to the statement of facts,
Everettte claims that he received ineffective assistance of counsel which led him to take an
involuntary guilty plea.1 He further contends that counsel failed to file an application for leave to
appeal in a “timely and professional manner” and “forged” three legal documents indicating he did
file for leave to appeal. Id. Although Everette has failed to remit the $400.00 civil filing fee or to
move to proceed in forma pauperis, he shall not be required to cure this deficiency. The § 1983
complaint shall be dismissed sua sponte for the failure to state a claim.
1
The state court docket indicates that on July 28, 2015, Everette entered a plea under North
Carolina v. Alford, 400 U.S. 25 (1970) on two counts of burglary fourth-degree theft and one count of theft
under $1,000. See State v. Everette, 03K14003740 (Circuit Count for Baltimore County). He received a
cumulative
four-year,
six-month
sentence.
See
http://casesearch.courts.state.md.us/casesearch/inquiryDetail.jis?
This represents the fourth time that Everette has attacked his Maryland prosecution in this
court. On November 30, 2015, December 14, 2015, and December 22, 2015, the court received for
filing the cases of Everette v. Office of the Public Defender, et al., Civil Action No. DKC-15-3649
(D. Md.); Everette v. Office of the State Attorney, et al., Civil Action No. DKC-15-3818 (D. Md.)
and Everette v. Office of the State Attorney, Civil Action No. DKC-15-3955 (D. Md.). Everette sued
his court-appointed attorney and the county prosecutors alleging that he received ineffective
assistance of counsel and was subject to prosecutorial misconduct. The first two cases were
summarily dismissed on December 3 and 22, 2015, while the latter case is currently undergoing
preliminary screening.
Jurisdictional and threshold requirements of §1983 civil actions demand that a substantial
federal claim be asserted and that the named defendants act “under color of” state law. See 28
U.S.C. §§ 1343(a)(3) and (4); see also West v. Adkins, 487 U.S. 42, 49 (1988); Lugar v. Edmondson
Oil Co., 457 U.S. 922, 928-930 (1982). Defense counsel, whether they are court-appointed public
defenders or privately-retained attorneys, do not act under color of state law when representing their
clients. See Polk County v. Dodson, 454 U.S. 312, 325 (1981). A defense attorney representing a
client, whether privately retained or court-appointed, is free from state control and is not acting
under color of state law. See id.; Deas v. Potts, 547 F.2d 800, 800 (4th Cir. 1976). Therefore,
regardless of whether Everette can prove that the Office of the Public Defender and Assistant Public
Defender Parvizian provided him with ineffective assistance of counsel during trial or on direct
appeal, he can state no claim under § 1983 because he is not suing state actors. See Curry v. South
Carolina, 518 F.Supp.2d 661, 667 (D. S.C. 2007).
2
Because Everette’s § 1983 complaint alleges an infringement of a constitutional right that
does not exist and is premised on an “indisputably meritless legal theory,” his case shall be
dismissed for the failure to state a claim. A separate Order follows dismissing this case.
Date:
December 31, 2015
/s/
DEBORAH K. CHASANOW
United States District Judge
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?