Baker v. Retelsdorf et al

Filing 30

MEMORANDUM AND ORDER - This case is dismissed without prejudice. The court will enter a separate judgment in accordance with this order. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
REGINALD G. BAKER,
Plaintiff,
v.
LEIGH ANN RETELSDORF, TOM
RILEY, BRENDA LEUCK, and
RYAN LINDBERG,
Defendants.

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4:14CV3103

MEMORANDUM
AND ORDER

The court has given Plaintiff Reginald Baker (“Plaintiff”) leave to proceed in
forma pauperis in this matter. (Filing No. 19.) The court now conducts an initial
review of his Complaint to determine whether summary dismissal is appropriate under
28 U.S.C. §§ 1915(e)(2) and 1915A.
I. SUMMARY OF COMPLAINT
Plaintiff is incarcerated at the Tecumseh State Prison in Tecumseh, Nebraska.
He was incarcerated at the Diagnostic and Evaluation Center when he filed this action.
He named four Douglas County, Nebraska, officials as defendants: Leigh Ann
Retelsdorf (district court judge), Tom Riley (public defender), Brenda Leuck (assistant
public defender), and Ryan Lindberg (assistant county attorney). (Filing No. 1 at
CM/ECF pp. 1-2.)
Plaintiff alleged Leuck was his court-appointed attorney in state criminal
proceedings. Leuck allegedly failed to file motions, coerced Plaintiff, made threats,
and “screamed” at Plaintiff. (Id. at CM/ECF pp. 4-5.) Plaintiff alleged Retelsdorf,
Riley, and Lindberg were aware that Leuck was providing ineffective assistance of
counsel. (Id. at CM/ECF p. 5.) For relief, Plaintiff seeks $75,000. (Id. at CM/ECF
p. 6.) He also asks that the court “review [his] case.” (Id.)

II. STANDARDS ON INITIAL REVIEW
The court is required to review prisoner and in forma pauperis complaints
seeking relief against a governmental entity or an officer or employee of a
governmental entity to determine whether summary dismissal is appropriate. See 28
U.S.C. §§ 1915(e) and 1915A. The court must dismiss a complaint or any portion of
it that states a frivolous or malicious claim, that fails to state a claim upon which relief
may be granted, or that seeks monetary relief from a defendant who is immune from
such relief. 28 U.S.C. § 1915(e)(2)(B); 28 U.S.C. § 1915A(b).
Pro se plaintiffs must set forth enough factual allegations to “nudge[] their
claims across the line from conceivable to plausible,” or “their complaint must be
dismissed.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“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.”).
“The essential function of a complaint under the Federal Rules of Civil
Procedure is to give the opposing party ‘fair notice of the nature and basis or grounds
for a claim, and a general indication of the type of litigation involved.’” Topchian v.
JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014) (quoting Hopkins v.
Saunders, 199 F.3d 968, 973 (8th Cir. 1999)). However, “[a] pro se complaint must
be liberally construed, and pro se litigants are held to a lesser pleading standard than
other parties.” Topchian, 760 F.3d at 849 (internal quotation marks and citations
omitted).
Liberally construed, Plaintiff here alleges federal constitutional claims. To state
a claim under 42 U.S.C. § 1983, a plaintiff must allege a violation of rights protected
by the United States Constitution or created by federal statute and also must show that
the alleged deprivation was caused by conduct of a person acting under color of state
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law. West v. Atkins, 487 U.S. 42, 48 (1988); Buckley v. Barlow, 997 F.2d 494, 495
(8th Cir. 1993).
III. DISCUSSION
The crux of Plaintiff’s argument is that he is entitled to money damages because
his court-appointed attorney was ineffective in her representation of him. Plaintiff
generally alleged Leuck failed to file motions, coerced him, made threats, and
“screamed” at him.
Title 42 U.S.C. § 1983 specifically provides a cause of action against a person
who, under color of state law, violates another’s federal rights. West, 487 U.S. at 48.
“[A] public defender does not act under color of state law when performing a lawyer’s
traditional functions as counsel to a defendant in a criminal proceeding.” Polk Cnty.
v. Dodson, 454 U.S. 312, 325 (1981). Indeed, when a public defender represents an
indigent defendant in a state criminal proceeding, he is “not acting on behalf of the
State; he is the State’s adversary.” Id. at 322, n. 13.
Based on the foregoing, the court will dismiss Plaintiff’s claims for monetary
relief against Leuck. The court will also dismiss Plaintiff’s claims against Retelsdorf,
Riley, and Lindberg. Plaintiff alleges only that they were aware of Leuck’s alleged
ineffective assistance. Such claims to not rise to the level of a constitutional violation.
To the extent, Plaintiff seeks to challenge the validity of his current
confinement, such claims may not be brought in a civil rights case, regardless of the
relief sought. As set forth by the Supreme Court in Preiser v. Rodriquez, 411 U.S.
475 (1973), and Heck v. Humphrey, 512 U.S. 477 (1994), if success on the merits of
a civil rights claim would necessarily implicate the validity of a conviction or
continued confinement of a convicted state prisoner, the civil rights claim must be
preceded by a favorable outcome in habeas corpus or similar proceedings in a state or
federal forum. Absent such a favorable disposition of the charges or conviction, a
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plaintiff may not use 42 U.S.C. § 1983 to cast doubt on the legality of his conviction
or confinement. See Heck, 512 U.S. at 486-87.
Thus, to the extent Plaintiff’s claims amount to a claim for ineffective
assistance of counsel and implicate the validity of his confinement of conviction, the
court cannot address such claims in an action brought pursuant to 42 U.S.C. § 1983.
IT IS THEREFORE ORDERED that:
1.

This case is dismissed without prejudice.

2.

The court will enter a separate judgment in accordance with this order.

DATED this 20th day of April, 2015.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court for the District
of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they
provide on their Web sites. Likewise, the court has no agreements with any of these third parties or their Web sites. The
court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases
to work or directs the user to some other site does not affect the opinion of the court.

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