Leach v. Newman et al

Filing 9

ORDER: This action is dismissed on initial review under 28 U.S.C. § 1915(e). The Clerk is directed to terminate this action. Signed by Chief Judge Frank D. Whitney on 2/14/2018. (Pro se litigant served by US Mail.) (maf)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:17-cv-328-FDW
JASON R. LEACH,

)
)
Plaintiff,
)
)
vs.
)
)
GREGORY NEWMAN,
)
Henderson County District Attorney,
)
TAMARA M. LEE, Attorney,
)
)
Defendants.
)
__________________________________________)

ORDER

THIS MATTER is before the Court on initial review of Plaintiff’s Complaint under 28
U.S.C. § 1915(e). Plaintiff has been granted in forma pauperis status. (Doc. No. 8).
I.

BACKGROUND

Pro se Plaintiff Jason R. Leach is a pre-trial detainee incarcerated at the Henderson County
Detention Facility in Hendersonville, North Carolina. In this civil rights action, brought under 42
U.S.C. § 1983, Plaintiff has named as Defendants Henderson County District Attorney Gregory
Newman and attorney Tamara Lee, whom Plaintiff identifies as his court-appointed attorney in his
underlying state criminal proceedings. Plaintiff alleges that Defendants have violated his “Fifth,
Fourteenth and by extension Sixth Amendment constitutional rights.” (Doc. No. 1 at 3). In
support, Plaintiff states:
On or about March 7, I was scheduled to attend my probable cause hearing.
I was taken to the court holding cell but never to the courtroom. I had previously
written my attorney, Ms. Tamara M. Lee and asked her specifically not to waive
this hearing. I never saw Ms. Lee that day, nor was I taken to court. According to
North Carolina’s state constitution, a defendant has the right to his probable cause
hearing within 15 business days from his 96-hour hearing. He must waive said
hearing with both his and his attorney’s signature to be presented to the district
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court judge. Be denying me this hearing, my 5th and 14th amendment constitutional
rights guaranteed to each American citizen of due process were violated by both
the D.A. and my attorney. I feel that this is a case of prosecutorial misconduct for
colluding with my court-appointed attorney to deny my due process rights and
hamper my ability to build an adequate and vigorous defense. I also feel that my
6th amendment right to effective assistance of counsel was violated by appointing
me an attorney who was more interested in aiding the D.A. and his wishes than she
was at providing me a vigorous defense in accordance with my wishes.
(Doc. No. 1 at 5). As relief, Plaintiff seeks a dismissal of the criminal charges pending against
him and for this Court to “expunge these charges from my record,” as well as compensatory and
punitive damages. (Id.).
II.

STANDARD OF REVIEW

Because Plaintiff is proceeding in forma pauperis, the Court must review the Complaint to
determine whether it is subject to dismissal on the grounds that it is “frivolous or malicious [or]
fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2). In its frivolity
review, this Court must determine whether the Complaint raises an indisputably meritless legal
theory or is founded upon clearly baseless factual contentions, such as fantastic or delusional
scenarios. Neitzke v. Williams, 490 U.S. 319, 327-28 (1989). Furthermore, a pro se complaint
must be construed liberally. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the liberal
construction requirement will not permit a district court to ignore a clear failure to allege facts in
his Complaint which set forth a claim that is cognizable under federal law. Weller v. Dep’t of Soc.
Servs., 901 F.2d 387 (4th Cir. 1990).
III.

DISCUSSION

The Court will dismiss this action for several reasons. First, to the extent that Plaintiff has
named as a Defendant the prosecutor who brought the charges against him, Defendant Newman is
entitled to absolute prosecutorial immunity for actions taken while performing traditional
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prosecutorial duties. See Imbler v. Pachtman, 424 U.S. 409 (1976). Next, Defendant attorney Lee
is not a proper defendant in this Section 1983 action. It is well established that an attorney, whether
retained, court-appointed, or a public defender, does not act under color of state law, which is a
jurisdictional prerequisite for any civil action brought under 42 U.S.C. § 1983. See Polk Cnty. v.
Dodson, 454 U.S. 312 (1981); see also Davidson v. Ratliff, No. 4:11-1072-RBH-SVH, 2011 WL
3678679, at *2 (D.S.C. June 3, 2011) (private counsel was not acting under color of state law under
42 U.S.C. § 1983). Finally, by Plaintiff’s own statement, he has pending criminal charges against
him in state court. In Younger v. Harris, the Supreme Court held that a federal court should not
interfere with state criminal proceedings except in the most narrow and extraordinary of
circumstances. 401 U.S. 37, 43-44 (1971). Under the Younger abstention doctrine, abstention is
proper in federal court when (1) there is an ongoing state court proceeding; (2) the proceeding
implicates important state interests; and (3) the plaintiff has an adequate opportunity to present the
federal claims in the state proceeding. Emp’rs Res. Mgmt. Co. v. Shannon, 65 F.3d 1126, 1134
(4th Cir. 1995). Here, the Court finds that all of the elements of Younger have been met. The
Court will, therefore, abstain from addressing Plaintiff’s claims related to the pending state
charges.

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IV.

CONCLUSION

For the reasons stated herein, this action will be dismissed.
IT IS, THEREFORE, ORDERED that:
1.

This action is dismissed on initial review under 28 U.S.C. § 1915(e).

2.

The Clerk is directed to terminate this action.
Signed: February 14, 2018

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