Boddie, Jr. v. Prisley

Filing 2

ORDER AND REPORT AND RECOMMENDATION re Complaint: The Magistrate Judge recommends the Plaintiff's Complaint be DISMISSED. Objections to R&R due within fourteen days of the day of this report. The Motion for informa pauperis is GRANTED. Signed by Magistrate Judge Elizabeth Preston Deavers on 8/19/2014. (mas1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

HOWARD BODDIE, JR.,
Plaintiff,
Civil Action 2:14-cv-1228
Judge Peter C. Economus
Magistrate Judge Elizabeth P. Deavers

v.

MICHAEL A. PRISLEY
Defendant.

ORDER AND REPORT AND RECOMMENDATION
Plaintiff initiated this action on August 14, 2014. This matter is before the Court for
consideration of Plaintiff’s Motion for Leave to Proceed In Forma Pauperis. (ECF No. 1.)
Plaintiff’s Motion is GRANTED. Plaintiff’s trust account statement reveals that he currently
possesses the sum of $7.50 in his prison account, which is insufficient to pay the full filing fee.
His application indicates that his average monthly deposits for the six-month period prior to
filing his application to proceed in forma pauperis were $19.33. Pursuant to 28 U.S.C. §
1915(b)(1), the custodian of Plaintiff’s inmate trust account (Inmate Identification Number #
A629680) at the Chillicothe Correctional Institution (“CCI”) is DIRECTED to submit to the
Clerk of the United States District Court for the Southern District of Ohio as an initial partial
payment, 20% of the greater of either the average monthly deposits to the inmate trust account or
the average monthly balance in the inmate trust account, for the six-months immediately
preceding the filing of the Complaint.
After full payment of the initial, partial filing fee, the custodian shall submit 20% of the

inmate’s preceding monthly income credited to the account, but only when the amount in the
account exceeds $10.00 until the full fee of $350.00 has been paid to the Clerk of this Court. 28
U.S.C. § 1915(b)(2). McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997).
Checks should be made payable to: Clerk, United States District Court. The checks
should be sent to:
Prisoner Accounts Receivable
260 U.S. Courthouse
85 Marconi Boulevard
Columbus, Ohio 43215
The prisoner’s name and this case number must be included on each check.
This matter is also before the Court for an initial screen pursuant to 28 U.S.C. §§
1915(e)(2) and 1915A to identify cognizable claims and to recommend dismissal of Plaintiff’s
Complaint, or any portion of it, which is frivolous, malicious, fails to state a claim upon which
relief may be granted, or seeks monetary relief from a defendant who is immune from such
relief. 28 U.S.C. § 1915(e)(2). Having performed the initial screen, for the reasons that follow,
it is RECOMMENDED that the Court DISMISS Plaintiff’s Complaint in its entirety.
I.
Plaintiff is an inmate housed at CCI. Defendant is an attorney licensed in the State of
Ohio. (Compl. 2, ECF No. 1-1.) Defendant represented Plaintiff in case number
08CR-05-3419, a criminal matter in the Franklin County Court of Common Pleas. (Id. at ¶ 5.)
Plaintiff brings this action under 42 U.S.C. § 1983, purporting to assert claims of attorney
malpractice, breach of contract, and violation of his civil rights related to Defendant’s
representation in the criminal matter. Specifically, Plaintiff contends that Defendant
misrepresented their attorney-client relationship as court-appointed, although Plaintiff paid
2

Defendant a retainer to represent him. Plaintiff further asserts that Defendant failed to visit him
in jail, refused to demand discovery which would have been exculpatory, misrepresented
Plaintiff in front of the jury during voire dire, and withheld exculpatory evidence. Plaintiff seeks
monetary damages against Defendant in the amount of $1.5 million, as well as injunctive relief.
II.
Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to
“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992).
In doing so, however, “Congress recognized that ‘a litigant whose filing fees and court costs are
assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from
filing frivolous, malicious, or repetitive lawsuits.’” Id. at 31 (quoting Neitzke v. Williams, 490
U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e)1 as part of the
statute, which provides in pertinent part:
(2) Notwithstanding any filing fee, or any portion thereof, that may have been
paid, the court shall dismiss the case at any time if the court determines that-*

*

*

(B) the action or appeal-(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or . . . .
28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31. Thus, § 1915(e) requires sua
sponte dismissal of an action upon the Court’s determination that the action is frivolous or
malicious, or upon determination that the action fails to state a claim upon which relief may be
granted. See Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of
1

Formerly 28 U.S.C. § 1915(d).
3

Civil Procedure 12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)).
To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, a plaintiff must satisfy the basic federal pleading requirements
set forth in Federal Rule of Civil Procedure 8(a). Under Rule 8(a)(2), a complaint must contain
a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.
Civ. P. 8(a)(2). Although this pleading standard does not require “‘detailed factual allegations,’
. . . [a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a
cause of action,’” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Further, a complaint will not “suffice if
it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly,
550 U.S. at 557). Instead, to survive a motion to dismiss for failure to state a claim under Rule
12(b)(6) of the Federal Rules of Civil Procedure, “a complaint must contain sufficient factual
matter . . . to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550
U.S. at 570). Facial plausibility is established “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. In considering whether this facial plausibility standard is met, a Court must
construe the complaint in the light most favorable to the non-moving party, accept all factual
allegations as true, and make reasonable inferences in favor of the non-moving party. Total
Benefits Planning Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir.
2008) (citations omitted). The Court is not required, however, to accept as true mere legal
conclusions unsupported by factual allegations. Iqbal, 556 U.S. at 678 (citing Twombly, 550
U.S. at 555). In addition, the Court holds pro se complaints “‘to less stringent standards than

4

formal pleadings drafted by lawyers.’” Garrett v. Belmont Cnty. Sheriff’s Dep’t, No. 08-3978,
2010 WL 1252923, at *2 (6th Cir. Apr. 1, 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520
(1972)).
III.
The Undersigned concludes that Plaintiff’s Complaint, which challenges Defendant’s
legal representation in a criminal case, fails to state a claim under 42 U.S.C. § 1983. To plead a
cause of action under 42 U.S.C. § 1983, a Plaintiff must plead two elements: (1) a person acting
under color of state law caused deprivation of a right that is (2) secured by the Constitution or
laws of the United States. Hunt v. Sycamore Cmty. School Dist. Bd. of Educ., 542 F.3d 529, 534
(6th Cir. 2008). It is well-settled that a lawyer representing a client is not a state actor ‘under
color of law’ within the meaning of § 1983.” Dallas v. Holmes, 137 F. App’x 746, 752 (6th Cir.
2005) (citing Polk County v. Dodson, 454 U.S. 312, 318 (1981)). Consequently, “[a] defense
attorney engaging in the traditional functions of a lawyer representing a client in a criminal
proceeding is not acting for the state for purposes of Section 1983.” Garcia v. Nerlinger, No.
1:10–cv–788, 2011 WL 1395595, at *1 (S.D. Ohio April 12, 2011); see also Cudejko v.
Goldstein, 22 F. App’x 484, 485 (6th Cir. 2001) (concluding that the state court criminal defense
attorney was not a state actor, which precluded a § 1983 claim for ineffective assistance of
counsel). Here, the conduct that forms the basis of Plaintiff's claims falls squarely within the
traditional functions of a lawyer representing a client. Accordingly, Plaintiff has failed to allege
sufficient state action for the purposes of his federal claim under § 1983 against Prisley, his
state-court attorney. Accordingly, his action must be dismissed pursuant to § 1915.
To the extent Plaintiff attempts to bring state-law claims of breach of contract and

5

attorney malpractice, the Undersigned recommends that the Court decline to exercise jurisdiction
over those claims. Under 28 U.S.C. § 1367(c)(3), the Court may decline to exercise
supplemental jurisdiction when the Court “has dismissed all claims over which it has original
jurisdiction.” The United States Court of Appeals for the Sixth Circuit has held that “[i]f the
federal claims are dismissed before trial, the state claims generally should be dismissed as well.”
Brooks v. Rothe, 577 F.3d 701, 709 (6th Cir. 2009) (internal quotations omitted). Here, the
Complaint confirms that Plaintiff and Defendant are citizens of Ohio such that the Court may not
exercise jurisdiction based on diversity of the parties under 28 U.S.C. § 1332. (Compl. 1, ECF
No. 1.) Thus, the Court does not have original jurisdiction over Plaintiff’s state-law claims.
The Undersigned recommends dismissal of Plaintiff’s purported federal claims. Under these
circumstances, pursuant to 28 U.S.C. § 1367(c)(3), the Undersigned RECOMMENDS that the
Court decline to exercise supplemental jurisdiction over any remaining state-law claims, and that
it DISMISS WITHOUT PREJUDICE any such claims.
IV.
Accordingly, Plaintiff’s Motion for Leave to Proceed In Forma Pauperis is GRANTED.
It is RECOMMENDED that the Complaint be DISMISSED for failure to state a claim.
PROCEDURE ON OBJECTIONS
If any party seeks review by the District Judge of this Report and Recommendation, that
party may, within fourteen (14) days, file and serve on all parties objections to the Report and
Recommendation, specifically designating this Report and Recommendation, and the part in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.

6

Fed. R. Civ. P. 72(b).
The parties are specifically advised that the failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review of by the District Judge
and waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l
Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the
magistrate judge’s recommendations constituted a waiver of [th defendant’s] ability to appeal the
district court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding
that defendant waived appeal of district court’s denial of pretrial motion by failing to timely
object to magistrate judge’s report and recommendation). Even when timely objections are
filed, appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507
F.3d 981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails
to specify the issues of contention, does not suffice to preserve an issue for appeal . . . .” (citation
omitted))
Date: August 19, 2014

/s/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge

7