Blakes v. Duke
Filing
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MEMORANDUM OPINION and ORDER of Summary Dismissal re: 1 Complaint. Signed by District Judge Arthur J. Tarnow. (CPic)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DESRIK BLAKES,
Case Number: 2:15-CV-13013
HONORABLE ARTHUR J. TARNOW
Plaintiff,
v.
DANIEL J. DUKE,
Defendant.
/
OPINION AND ORDER OF SUMMARY DISMISSAL
I.
Pending before the Court is Plaintiff Desrik Blakes’ pro se civil rights complaint
filed under 42 U.S.C. § 1983. Plaintiff is proceeding without prepayment of the filing fee
in this action under 28 U.S.C. § 1915(a)(1). Plaintiff’s claims relate to criminal
proceedings in Midland County Circuit Court. According to Plaintiff, he is awaiting trial
on several felony charges. Plaintiff names a single defendant, Daniel J. Duke, his
criminal defense attorney, and seeks monetary relief. For the reasons which follow, the
complaint is dismissed for failure to state a claim upon which relief may be granted.
II.
Federal Rule of Civil Procedure 8(a) requires that a complaint set forth “a short
and plain statement of the claim showing that the pleader is entitled to relief,” as well as
“a demand for the relief sought.” Fed. R. Civ. P. 8(a)(2), (3). The purpose of this rule is
to “give the defendant fair notice of what the . . . claim is and the grounds upon which it
rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson,
355 U.S. 41, 47 (1957) and Fed. R. Civ. P. 8(a)(2)). While this notice pleading standard
does not require “detailed” factual allegations, Twombly, 550 U.S. at 555, it does require
more than the bare assertion of legal conclusions or “an unadorned, thedefendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the
elements of a cause of action will not do.’” Id. (quoting Twombly, 550 U.S. at 555).
“Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).
Plaintiff has been granted leave to proceed without prepayment of the filing fee for
this action. Under the Prison Litigation Reform Act (“PLRA”), the court is required to
sua sponte dismiss an in forma pauperis complaint before service on a defendant if it
determines that the action is frivolous or malicious, fails to state a claim upon which relief
can be granted, or seeks monetary relief against a defendant who is immune from such
relief. See 42 U.S.C. § 1997e(c); 28 U.S.C. § 1915(e)(2)(B). A complaint is frivolous if
it lacks an arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989).
To state a federal civil rights claim, a plaintiff must allege that: (1) he was
deprived of a right, privilege, or immunity secured by the federal Constitution or laws of
the United States, and (2) the deprivation was caused by a person acting under color of
state law. Flagg Bros. v. Brooks, 436 U.S. 149, 155-57 (1978). A pro se civil rights
complaint is to be construed liberally. Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
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III.
In his complaint, Plaintiff alleges that defense attorney Daniel J. Duke rendered
ineffective assistance in his representation of Plaintiff during pre-trial proceedings.
As stated, one of the essential elements of a claim under 42 U.S.C. § 1983 is that
the conduct complained of was committed by a person acting under color of state law.
Parratt v. Taylor, 451 U.S. 527, 535 (1981). To be a “state actor,” a party’s actions must
be “‘fairly attributable to the state.’” Ellison v. Garbarino, 48 F.3d 192, 195 (6th Cir.
1995), quoting Lugar v. Edmundson Oil Co., 457 U.S. 922, 937 (1982). Attorneys
representing clients in criminal actions do not act under color of law for § 1983 purposes,
even where such attorneys are appointed by the government to represent the criminal
defendant. Polk County v. Dodson, 454 U.S. 312 (1981). Thus, defendant Duke was not
acting under color of state law in acting as Plaintiff’s defense attorney.
Accordingly, the complaint is DISMISSED pursuant to 28 U.S.C. § 1915(e), for
failure to state a claim upon which relief may be granted.
SO ORDERED.
S/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
Dated: September 29, 2015
I hereby certify that a copy of the foregoing document was served upon parties/counsel of record on
September 29, 2015, by electronic and/or ordinary mail.
S/Catherine A. Pickles
Judicial Assistant
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