Cheney v. Harwood et al

Filing 8

ORDER re: 1 Complaint. Within 14 days, plaintiff to file motion to amend the complaint as outlined or the case will be dismissed without prejudice. Motion due by 8/1/2013. So Ordered by Judge Joseph A. DiClerico, Jr.(dae)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Michael Cheney
v.

Civil No. 13-cv-067-JD

Wade Harwood and New Hampshire Supreme
Court Attorney Discipline Office

O R D E R
Before the court is the complaint and an addendum thereto,
with exhibits (doc. nos. 1 and 5), filed by pro se plaintiff,
Michael Cheney, a prisoner proceeding in forma pauperis.

The

matter is before the court for preliminary review, pursuant to
28 U.S.C. §§ 1915(e)(2) and 1915A(a).

Preliminary Review Standard
Pursuant to 28 U.S.C. §§ 1915A(b) and 1915(e)(2), the court
may dismiss one or more claims asserted in an indigent
prisoner’s complaint, if a defendant is immune from the relief
sought, or the complaint fails to state a claim upon which
relief may be granted.
1915A(b).

See 28 U.S.C. §§ 1915(e)(2) and

In determining whether a pro se complaint states a

claim, the court must construe the complaint liberally.

See

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).

To

survive preliminary review, the complaint must contain
“sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’”

See Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).

To

determine plausibility, the court treats as true all wellpleaded factual allegations, and construes all reasonable
inferences in the plaintiff’s favor.

See Ocasio-Hernández v.

Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011).

Background
Cheney is an inmate in the state prison.

Cheney asserts

that his court-appointed defense counsel, Attorney D. Wade
Harwood of the New Hampshire Public Defender’s Office, did not
represent him effectively in his criminal case, and that Harwood
committed “perjury.”

Cheney further asserts that the New

Hampshire Supreme Court Attorney Discipline Office (“ADO”)
improperly rejected Cheney’s disciplinary complaints against
Harwood.
Construing the complaint liberally, the court finds that
Cheney has asserted the following claims in this action:
1.
Cheney’s court-appointed defense counsel provided
ineffective assistance, in violation of Cheney’s Sixth
Amendment right to counsel.

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2.
Defendants Harwood and the ADO engaged in
malpractice and otherwise failed to perform duties owed to
Cheney under state law, causing injury to Cheney, rendering
them liable to him for their tortious conduct.
Discussion
I.

Federal Claim
In Claim 1, Cheney asserts that the public defender

appointed to represent him in the underlying criminal proceeding
failed to represent him effectively, and perjured himself, in
violation of Cheney’s federal constitutional rights.

Cheney

brings this claim pursuant to 42 U.S.C. § 1983, which provides a
cause of action to those whose federal constitutional rights
have been violated by a defendant acting under color of state
law.

A public defender, however, is not a state actor who may

be liable under § 1983 for actions taken while representing a
client before and during trial.

See Georgia v. McCollum, 505

U.S. 42, 53 (1992) (citing Polk Cnty. v. Dodson, 454 U.S. 312
(1981)).

Cheney has failed to plead any facts suggesting that

Attorney Harwood may be deemed to be a state actor for the
purposes of establishing his liability under 42 U.S.C. § 1983.
Therefore, Claim 1 fails to state a claim upon which relief can
be granted, and is properly dismissed.

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II.

State Law Claim
Claim 1 is the only federal claim in this case as to which

the court has original jurisdiction, and Claim 1 fails to state
a plausible claim for relief under § 1983.

The facts alleged in

the complaint fail to state any plausible federal claim as to
the ADO or Attorney Harwood for violations of Cheney’s federal
rights, based on § 1983 or any other authority.
This court may decline to exercise supplemental
jurisdiction over a state law claim where all of the claims over
which the court has original jurisdiction are dismissed.
U.S.C. § 1367(c)(3).

See 28

While 28 U.S.C. § 1367(c)(3) authorizes

this court to dismiss Claim 2 without prejudice at this time, in
the interests of justice and fairness to a pro se prisoner
plaintiff, the court will provide Cheney an opportunity to move
to amend the complaint to state a plausible federal claim for
relief against any defendant before dismissing this action.

Conclusion
Unless Cheney, within fourteen days of the date of this
order, files a motion to amend the complaint stating a plausible
federal claim upon which relief can be granted, the court will
dismiss the entire case.

The dismissal of the case shall be

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without prejudice to Cheney filing state law claims in state
court, based on the facts alleged in the complaint.
SO ORDERED.

__________________________
Joseph D. DiClerico
United States District Judge
July 18, 2013
cc:

Michael Cheney, pro se

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