Vicario v. Mack

Filing 4

Memorandum of Opinion and Order. This action is dismissed under 28 U.S.C. § 1915(e). The dismissal is without prejudice to any valid state law claim Plaintiff may have under the facts alleged. The Court certifies, pursuant to 28 U.S.C. § 1915(A)(3), that an appeal from this decision could not be taken in good faith. Judge Christopher A. Boyko on 1/12/2017. (H,CM)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
ERIK J. VICARIO,
Plaintiff,
v.
FERNANDO MACK,
Defendant .

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CASE NO. 1:16 CV 2911
JUDGE CHRISTOPHER A. BOYKO
MEMORANDUM OF OPINION
AND ORDER

On December 2, 2016, Plaintiff pro se Erik J. Vicario filed this in forma pauperis action
under 42 U.S.C. § 1983 against Defendant Attorney Fernando Mack. Plaintiff alleges he retained
Defendant to represent him in a pending criminal case, but that Defendant has not provided
adequate representation. Plaintiff seeks his release from pre-trial incarceration, dismissal of the
criminal charges against him, and $1.5 million in damages.
Although pro se pleadings are liberally construed, Boag v. MacDougall, 454 U.S. 364,
365 (1982) (per curiam), the district court is required to dismiss an action under 28 U.S.C. §
1915(e) if it fails to state a claim upon which relief can be granted, or if it lacks an arguable basis
in law or fact.1 Neitzke v. Williams, 490 U.S. 319 (1989); Hill v. Lappin, 630 F.3d 468, 470 (6th
Cir. 2010).
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An in forma pauperis claim may be dismissed sua sponte, without prior notice to the plaintiff
and without service of process on the defendant, if the court explicitly states that it is
invoking section 1915(e) [formerly 28 U.S.C. § 1915(d)] and is dismissing the claim for one
of the reasons set forth in the statute. Chase Manhattan Mortg. Corp. v. Smith, 507 F.3d 910,
915 (6th Cir. 2007); Gibson v. R.G. Smith Co., 915 F.2d 260, 261 (6th Cir. 1990); Harris v.
Johnson, 784 F.2d 222, 224 (6th Cir. 1986).

A criminal defense attorney who acts in that capacity on behalf of a criminal defendant
does not act under color of state law for purposes of a 42 U.S.C. § 1983 action. Polk County v.
Dodson, 454 U.S. 312 (1981); Deas v. Potts, 547 F.2d 800 (4th Cir. 1976). Further, to the extent
Plaintiff seeks to challenge his current confinement, his must seek relief in habeas corpus.
Preiser v. Rodriguez, 411 U.S. 475, 500 (1973)
Accordingly, this action is dismissed under 28 U.S.C. § 1915(e). The dismissal is
without prejudice to any valid state law claim Plaintiff may have under the facts alleged. Further,
the Court certifies, pursuant to 28 U.S.C. § 1915(A)(3), that an appeal from this decision could
not be taken in good faith.
IT IS SO ORDERED.

s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
UNITED STATES DISTRICT JUDGE
DATED: January 12, 2017

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