Holloway #159258 v. Radner

Filing 4

OPINION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION

RANDY HOLLOWAY,
Plaintiff,

Case No. 2:16-cv-248

v.

Honorable Gordon J. Quist

SOLOMON RADNER,
Defendant.
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OPINION
This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. § 1983.
The Court has granted Plaintiff leave to proceed in forma pauperis. Under the Prison Litigation
Reform Act, PUB. L. NO. 104-134, 110 STAT. 1321 (1996), the Court is required to dismiss any
prisoner action brought under federal law if the complaint is frivolous, malicious, fails to state a
claim upon which relief can be granted, or seeks monetary relief from a defendant immune from
such relief. 28 U.S.C. §§ 1915(e)(2), 1915A; 42 U.S.C. § 1997e(c). The Court must read Plaintiff’s
pro se complaint indulgently, see Haines v. Kerner, 404 U.S. 519, 520 (1972), and accept Plaintiff’s
allegations as true, unless they are clearly irrational or wholly incredible. Denton v. Hernandez, 504
U.S. 25, 33 (1992). Applying these standards, Plaintiff’s action will be dismissed for failure to state
a claim.
Factual Allegations
Plaintiff Randy Holloway, a Michigan state prisoner currently confined at the
Muskegon Correctional Facility, filed this pro se civil rights action pursuant to 42 U.S.C. § 1983

against Attorney Solomon Radner. Plaintiff claims that he retained Defendant Radnor to represent
him in a civil rights action filed by Plaintiff against prison officials. See Holloway v. Kinross
Correctional Facility, et al., Case No. 2:14-cv-83 (W.D. Mich., Sept. 26, 2016). Plaintiff claims that
Defendant Radnor failed to file objections to the Magistrate Judge’s Report and Recommendation
or to otherwise adequately litigate Plaintiff’s rights, which resulted in the dismissal of Plaintiff’s
action. Plaintiff seeks damages.
Discussion
I.

Failure to state a claim

A complaint may be dismissed for failure to state a claim if it fails “‘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)). While
a complaint need not contain detailed factual allegations, a plaintiff’s allegations must include more
than labels and conclusions. Twombly, 550 U.S. at 555; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
do not suffice.”). The court must determine whether the complaint contains “enough facts to state
a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 679. Although
the plausibility standard is not equivalent to a “‘probability requirement,’ . . . it asks for more than
a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 556). “[W]here the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged – but it has not ‘show[n]’ – that the
pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (quoting FED. R. CIV. P. 8(a)(2)); see also Hill
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v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (holding that the Twombly/Iqbal plausibility
standard applies to dismissals of prisoner cases on initial review under 28 U.S.C. §§ 1915A(b)(1)
and 1915(e)(2)(B)(i)).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a
right secured by the federal Constitution or laws and must show that the deprivation was committed
by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Dominguez v.
Corr. Med. Servs., 555 F.3d 543, 549 (6th Cir. 2009). In order for a private party’s conduct to be
under color of state law, it must be “fairly attributable to the State.” Lugar v. Edmondson Oil Co.,
457 U.S. 922, 937 (1982); Street v. Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996). There
must be “a sufficiently close nexus between the State and the challenged action of [the defendant]
so that the action of the latter may be fairly treated as that of the State itself.” Skelton v. Pri-Cor,
Inc., 963 F.2d 100, 102 (6th Cir. 1991) (citing Jackson v. Metro. Edison Co., 419 U.S. 345, 351
(1974)).
Plaintiff cannot show that his retained attorney acted under color of state law. In Polk
County v. Dodson, 454 U.S. 312 (1981), the Supreme Court held that counsel perform a private, not
an official, function:
In our system[,] a defense lawyer characteristically opposes the designated
representatives of the State. The system assumes that adversarial testing will
ultimately advance the public interest in truth and fairness. But it posits that a
defense lawyer best serves the public, not by acting on behalf of the State or in
concert with it, but rather by advancing “the undivided interest of his client.” This
is essentially a private function, traditionally filled by retained counsel, for which
state office and authority are not needed.
454 U.S. at 318-19 (footnotes omitted). The Polk County Court further held that this is true even
of the state-appointed and state-paid public defender. Id. at 321. The Court said that, once a lawyer
undertakes the representation of an accused, the duties and obligations are the same whether the
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lawyer is privately retained, appointed, or serves in a legal aid or defender program. Id. at 323. The
Court held that, even though a public defender is paid by the state, he or she does not act under color
of state law in representing the accused. Id. at 325. Rather, defense counsel—whether privately
retained or paid by the state—acts purely on behalf of the client and free from state control. Id. The
Sixth Circuit has adhered to the holding in Polk County in numerous decisions. See, e.g., Floyd v.
Cnty. of Kent, 454 F. App’x 493, 497 (6th Cir. 2012) (holding that, when performing traditional
functions as counsel, a public defender is not a state actor); Powers v. Hamilton Cnty. Pub.
Defender, 501 F.3d 592, 611 (6th Cir. 2007) (same); Harmon v. Hamilton Cnty. Court of Common
Pleas, 83 F. App’x 766, 767 (6th Cir. 2003). Accordingly, Plaintiff’s retained attorney did not act
under color of state law, and no claim under § 1983 can be maintained against him.
To the extent that Plaintiff asserts claims of fraud and legal malpractice, these claims
arise solely under state law. Section 1983 does not provide redress for a violation of a state law.
Pyles v. Raisor, 60 F.3d 1211, 1215 (6th Cir. 1995); Sweeton v. Brown, 27 F.3d 1162, 1166 (6th Cir.
1994). The Sixth Circuit has stated that district courts should generally decline to exercise
supplemental jurisdiction over state law claims under these circumstances. See Landefeld v. Marion
Gen. Hosp., 994 F.2d 1178, 1182 (6th Cir. 1993); Hawley v. Burke, No. 97-1853, 1998 WL 384557,
at *1-2 (6th Cir. June 18, 1998). Accordingly, these claims will be dismissed without prejudice.
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Plaintiff’s action will be dismissed for failure to state a claim pursuant to 28 U.S.C.
§§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c).
The Court must next decide whether an appeal of this action would be in good faith
within the meaning of 28 U.S.C. § 1915(a)(3). See McGore v. Wrigglesworth, 114 F.3d 601, 611
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(6th Cir. 1997). For the same reasons that the Court dismisses the action, the Court discerns no
good-faith basis for an appeal. Should Plaintiff appeal this decision, the Court will assess the
$505.00 appellate filing fee pursuant to § 1915(b)(1), see McGore, 114 F.3d at 610-11, unless
Plaintiff is barred from proceeding in forma pauperis, e.g., by the “three-strikes” rule of § 1915(g).
If he is barred, he will be required to pay the $505.00 appellate filing fee in one lump sum.
This is a dismissal as described by 28 U.S.C. § 1915(g).
A Judgment consistent with this Opinion will be entered.

Dated: January 11, 2017

/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE

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