Sevegny v. Smith
Filing
6
MEMORANDUM AND ORDER adopting 3 Report and Recommendations; denying 4 Motion for Recusal; and dismissing Plaintiff's 1 Complaint. So Ordered by Chief Judge William E. Smith on 1/4/2017. (Jackson, Ryan)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
BRYAN SEVEGNY,
)
)
Plaintiff,
)
)
v.
)
C.A. No. 16-258 S
)
MARK SMITH,
)
)
Defendant.
)
___________________________________)
MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief Judge.
Magistrate
Recommendation
Judge
(“R&R”)
Lincoln
D.
Almond
recommending
filed
dismissal
a
of
Report
and
Plaintiff’s
claim. (ECF No. 3.) Plaintiff has filed an Objection (ECF No. 5)
and a Motion for Recusal (ECF No. 4). For the reasons set forth
below, the Court ADOPTS the R&R and DENIES Plaintiff’s Motion
for recusal.
I.
Dismissal of Plaintiff’s Lawsuit
Bryan
Sevegny
(“Plaintiff”)
has
brought
a
civil
suit
against his court-appointed attorney, Mark Smith (“Defendant”),
alleging a violation of 42 U.S.C. § 1983 as well as “legal
malpractice” under R.I. Gen. Laws 9-1-14.3. (Complaint ¶¶ 1-2,
ECF No. 1.) Plaintiff is proceeding in forma pauperis. The Court
must
therefore
review
Plaintiff’s
Complaint
sua
sponte
and
dismiss any of Plaintiff’s claims that are (i) “frivolous or
malicious,” (ii) “fail[] to state a claim on which relief may be
granted,” or (iii) “seek[] monetary relief against a defendant
who is immune from such relief.”
28 U.S.C.
§
1915(e)(2)(B).
Dismissal is only warranted if “it appears to a certainty that
the
plaintiff
would
be
unable
to
recover
under
any
set
of
facts.” Roma Const. Co. v. aRusso, 96 F.3d 566, 569 (1st Cir.
1996).
In this case, Plaintiff alleges a violation of 42 U.S.C. §
1983 by his court-appointed attorney. (Complaint ¶ 7, ECF No.
1.) “It is black-letter law that a showing of interference with
a constitutionally-protected right by someone acting under color
of state law is a prerequisite to a § 1983 action.” Malachowski
v.
City
of
Keene,
787
F.2d
704,
710
(1st
Cir.
1986).
The
Complaint fails to allege that Defendant is acting under color
of state law. Moreover, as Magistrate Judge Almond discussed in
the R&R, the Supreme Court has made clear that a court-appointed
attorney “‘representing a client is not, by virtue of being an
officer of the court, a state actor “under color of state law”
within the meaning of § 1983.’” (R&R 5, ECF No. 3 (quoting Polk
Cty. v. Dodson, 454 U.S. 312, 318 (1981)).)
Plaintiff’s Objection ignores
erroneously
employs
case
law
from
this precedent
the
personal
and instead
jurisdiction
context to claim that Defendant is Rhode Island’s “alter ego”
and therefore acting under color of state law. (Objection 8-10,
2
ECF No. 5-1.) Plaintiff is simply incorrect – Defendant, as a
court-appointed attorney, is not acting under color of state
law. Jackson v. Salon, 614 F.2d 15, 16–17 (1st Cir. 1980) (“[W]e
have taken the view that court-appointed attorneys do not act
under color of law and therefore are not amenable to suit under
§
1983.”).
Plaintiff
Furthermore,
because
§
1983
claim
Plaintiff’s
is
therefore
federal
dismissed.
claim
has
been
dismissed, Plaintiff’s legal malpractice claim is also dismissed
for
lack
of
1367(c)(3)
subject
(“The
matter
district
jurisdiction.
courts
may
See
28
decline
to
supplemental jurisdiction over a claim . . . if
district
court
has
dismissed
all
claims
over
U.S.C.
§
exercise
. . .
which
the
it
has
original jurisdiction.”).
II. Motion for Recusal
Plaintiff
seeks
to
have
Magistrate
Judge
Almond
removed
from this case pursuant to 28 U.S.C. § 144. (Pl.’s Mot. for
Recusal, ECF No. 4.) Under that statute, if a party establishes
that a judge has a “bias or prejudice either against him or in
favor of any adverse party, such judge shall proceed no further
therein,
but
another
judge
shall
be
assigned
to
hear
such
proceeding.” 28 U.S.C. § 144. This requires a “firm showing in
[an]
affidavit
that
the
judge
does
have
a
personal
bias
or
prejudice toward a party” as well as “strict compliance with the
procedural requirements of the section.” In re Martinez-Catala,
3
129
F.3d
fronts.
213,
Not
218
only
(1st
does
Cir.
1997).
Plaintiff
not
Plaintiff
provide
fails
any
on
both
facts
that
suggest bias or prejudice on behalf of Magistrate Judge Almond,
but the Motion also fails to include a “timely and sufficient
affidavit”
supporting
Plaintiff’s
claims
as
required
by
28
U.S.C. § 144.
III.
Conclusion
For the foregoing reasons, the R&R (ECF. No. 3) is ADOPTED
and
Plaintiff’s
Motion
for
Recusal
Judgment will enter for Defendant.
IT IS SO ORDERED.
William E. Smith
Chief Judge
Date: January 4, 2017
4
(ECF
No.
4)
is
DENIED.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?