Johnson v. Harrison

Filing 7

ORDER DISMISSING CASE Signed by District Judge Victoria A. Roberts. (CPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DARREN JOHNSON,
Plaintiff,
v.

CASE NO. 2:12-cv-12543
HONORABLE VICTORIA A. ROBERTS

WALTER L. HARRISON,
Defendant.
____________________________/
ORDER OF DISMISSAL
I. INTRODUCTION
Plaintiff Darren Johnson is a state prisoner at Oaks Correctional Facility in
Manistee, Michigan. He recently filed a pro se civil rights complaint for money damages
pursuant to 42 U.S.C. § 1983. Defendant Walter L. Harrison is a lawyer who
represented Plaintiff at his state criminal trial. Plaintiff claims that Defendant’s acts and
omissions constituted legal malpractice and ineffective assistance of counsel, which
deprived him of a fair trial. Specifically, Plaintiff contends that Defendant did not
subpoena evidence, did not comply with a discovery order, and deprived him of an
opportunity to submit documentary evidence and to have his main witness testify.
Plaintiff contends that the documentary evidence and witness’s testimony would have
set him free.
II. STANDARD OF REVIEW
Due to Plaintiff’s indigence, the Court has granted him permission to proceed

without prepayment of the fees and costs for this action. The Court must dismiss an
indigent prisoner’s civil complaint against a governmental entity, officer, or employee if
the complaint (1) is frivolous or malicious, (2) fails to state a claim for which relief may
be granted, or (3) seeks monetary relief from a defendant who is immune from such
relief. 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b); Smith v. Campbell, 250 F.3d 1032,
1036 (6th Cir. 2001).
A complaint is frivolous if it lacks an arguable basis in law or in fact. Neitzke v.
Williams, 490 U.S. 319, 325 (1989). While a complaint need not contain “detailed
factual allegations,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007),
conclusory statements will not suffice, and only a complaint that states a plausible claim
for relief will survive a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009)
(citing Twombly, 550 U.S. at 555-56). “So, to survive scrutiny under §§ 1915A(b)(1) and
1915(e)(2)(B)(ii), ‘a complaint must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.’” Hill v. Lappin, 630 F.3d. 468, 471
(6th Cir. 2010) (quoting Iqbal, 556 U.S. at 678). “A plaintiff proceeding under § 1983
must establish that a person acting under color of state law deprived him of a right
secured by the Constitution or by federal law.” Hoover v. Walsh, 682 F.3d 481, 492 (6th
Cir. 2012) (citing Westmoreland v. Sutherland, 662 F.3d 714, 718 (6th Cir. 2011)).
III. DISCUSSION
Defendant was Plaintiff’s criminal defense attorney. Defense attorneys, whether
retained or appointed by the court, do not act under color of law for purposes of § 1983
when performing the traditional functions of counsel to a defendant in a criminal
proceeding. See Polk County v. Dodson, 454 U.S. 312, 325 (1981) (public defenders);
2

Mulligan v. Schlachter, 389 F.2d 231, 233 (6th Cir. 1968) (private attorneys appointed
by the court); Deas v. Potts, 547 F.2d 800, 800 (4th Cir. 1976) (retained attorneys). In
addition, a claim of legal malpractice is a “matter[] of state law over which federal courts
have no jurisdiction in the absence of diversity of citizenship.” Wallace v. Depalma, 758
F.2d 654, No. 84-3225, 1985 WL 12956, at *1 (6th Cir. Feb. 19, 1985) (unpublished)
(citing Fine v. New York, 529 F.2d 70, 74 (2d Cir. 1975)).
Furthermore, Plaintiff is challenging a criminal conviction. He has no right to
money damages for allegedly unlawful conviction or sentence unless his conviction or
sentence was invalidated by state officials or called in question by a federal court’s
issuance of the writ of habeas corpus. Heck v. Humphrey, 512 U.S. 477, 486-87
(1994). Heck and progeny, “taken together, indicate that a state prisoner’s § 1983
action is barred (absent prior invalidation) -- no matter the relief sought (damages or
equitable relief), no matter the target of the prisoner’s suit (state conduct leading to
conviction or internal prison proceedings) -- “if success in that action would necessarily
demonstrate the invalidity of confinement or its duration.” Wilkinson v. Dotson, 544 U.S.
74, 81-82 (2005) (emphasis in original).
Plaintiff has not alleged that either his conviction or sentence was invalidated by
state officials or impugned by a federal judge on habeas corpus review, and success in
this action would demonstrate the invalidity of his conviction and imprisonment. For this
additional reason, Plaintiff’s claims are not cognizable in this civil rights action.

IV. CONCLUSION
Plaintiff’s allegations are frivolous and fail to state a plausible claim for which
3

relief may be granted. Accordingly, the complaint is summarily dismissed pursuant to
28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). The Court certifies that an appeal from this
decision would be frivolous and could not be taken in good faith. 28 U.S.C. §
1915(a)(3); Coppedge v. United States, 369 U.S. 438, 445 (1962); McGore v.
Wrigglesworth, 114 F.3d 601, 610-11 (6th Cir. 1997).

S/Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: August 2, 2012
The undersigned certifies that a copy of this
document was served on the attorneys of
record and Darren Johnson by electronic
means or U.S. Mail on August 2, 2012.
s/Carol A. Pinegar
Deputy Clerk

4