Welch v. Dobias

Filing 8

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

ERIC DEXTER WELCH,
Plaintiff,
v.

Case No. 2:17-cv-38
Honorable Gordon J. Quist

MARK L. DOBIAS,
Defendant.
_____________________________/

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 Eric Dexter Welch, a federal prisoner currently confined at the United States
Penitentiary in Marion, Illinois, filed this pro se civil action against attorney Mark L. Dobias.
Plaintiff states that he is filing this lawsuit as “either a Bivens action, a 42 U.S.C. § 1983 action, or

both.” Plaintiff states that Defendant represented him during his federal criminal trial, which
resulted in a 2010 conviction. Plaintiff complains that Defendant’s representation violated his First
Amendment right of access to the courts, his Fourteenth Amendment right to due process, and his
right under state law. Plaintiff seeks declaratory and injunctive relief, as well as compensatory
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
v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (holding that the Twombly/Iqbal plausibility

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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). Because § 1983 is a method for vindicating
federal rights, not a source of substantive rights itself, the first step in an action under § 1983 is to
identify the specific constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271
(1994).
As noted above, Plaintiff claims that his complaint is “either a Bivens1 action, a 42
U.S.C. § 1983 action, or both.” However, to prevail on a Section 1983 claim, Plaintiff must
establish that a person acting under color of state law deprived him of a right secured by the
Constitution or the laws of the United States. Searcy v. City of Dayton, 38 F.3d 282, 286 (6th Cir.
1994). Similarly, in order to prevail on a Bivens claim, Plaintiff must show that a person acting
under color of federal authority deprived him of his constitutional rights. Mueller v. Gallina, 137
Fed. App’x 847, 850 (6th Cir. 2005) (citing Browning v. Clinton, 292 F.3d 235, 250 (D.C. Cir.
2002)).
Defendant in this case is a private attorney who represented Plaintiff during his
federal criminal proceedings. Plaintiff claims that Defendant was ineffective in his defense of
Plaintiff in his federal criminal case. Federal courts have uniformly held that a criminal defense
attorney is not acting under color of law in either state or federal court, whether appointed or
retained.

1

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

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The United States Supreme Court has held “a public defender does
not act under color of state law when performing a lawyer's
traditional function as counsel to a defendant in a criminal
proceeding.” West v. Atkins, 487 U.S. 42, 49, 108 S.Ct. 2250, 101
L.Ed.2d 40 (1988), (quoting Polk County v. Dodson, 454 U.S. 312,
325, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981)). This rule is applicable
to court appointed counsel, as well as retained private attorneys. See
White v. Robertson–Deming, 9 Fed.Appx. 418, 419 (6th Cir. May 16,
2001), available in 2001 WL 549211 (noting court-appointed defense
counsel is not state actor for purpose of § 1983); James v. Mann, 234
F.3d 1268 (6th Cir.2000), available at 2000 WL 1679505, *2 (citing
Catz v. Chalker, 142 F.3d 279, 189 (6th Cir.1998) (concluding
retained attorney is not a person acting under color of state law and,
thus is not subject to § 1983 suit)); Deas v. Potts, 547 F.2d 800 (4th
Cir.1976) (“A private attorney who is retained to represent a criminal
defendant is not acting under color of state law, and therefore is not
amendable to suit under § 1983.”); United States ex rel. Simmons v.
Zibilich, 542 F.2d 259 (5th Cir.1976) (A court-appointed defense
attorney acting in a criminal case does not act under color of state law
because no state action exists.); Mulligan v. Schlachter, 389 F.2d
231, 233 (6th Cir.1968) (A private attorney does not act under color
of state law despite the fact he has been appointed by the court).
Similarly, an attorney is not transformed into a federal official for
purposes of a Bivens action merely because he is appointed by a
federal court pursuant to federal law. See Cox v. Hellerstein, 685 F.2d
1098, 1099 (9th Cir.1982); Christian v. Crawford, 907 F.2d 808, 810
(8th Cir.1990) (“[A]ttorneys are not transformed into federal officials
for purposes of Bivens action merely because they are appointed by
a federal court pursuant to a federal law”); Haley v. Walker, 751 F.2d
284, 285 (8th Cir.1984) (attorney appointed by federal court is not a
federal officer for purposes of a Bivens-type action).
“A criminal lawyer's professional and ethical obligations require him
to act in a role independent of and in opposition to the State[ ] ... and
when representing an indigent defendant in a state criminal
proceeding ... the public defender does not act under color of state
law for purposes of § 1983 because ‘he is not acting on behalf of the
State; he is the State's adversary.’ ” West v. Atkins, 487 U.S. at 50
(quoting Polk County v. Dodson, 454 U.S. at 322 n. 13). The same
holds true for a criminal lawyer appointed by the government to
represent an indigent defendant in a federal criminal proceeding. See
Christian v. Crawford, 907 F.2d at 810.
Beasley v. Poole, 2011 WL 2689347, at *7–8 (E.D. Tenn. July 11, 2011).

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Therefore, it is clear that the named Defendant in this case was not acting under color
of law and may not be sued pursuant to 42 U.S.C. § 1983 or Bivens. Accordingly, the Court will
dismiss Plaintiff’s complaint.
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
(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: May 10, 2017

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

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