Waliezer v. Larson
ORDER Dismissing Case. Signed by U.S. District Judge Charles B. Kornmann on 11/17/2021. Mailed copy of order and appeal packet to to Plaintiff via USPS.(VMM)
Case 1:21-cv-01021-CBK Document 24 Filed 11/17/21 Page 1 of 2 PageID #: 92
UNITED STATES DISTRICT COURT
NOV 1 / 202t
DISTRICT OF SOUTH DAKOTA
SHANE D. WALIEZER,
ORDER OF DISMISSAL
JEFF LARSON,in his individual and
Plaintiff filed a pro se complaint under 42 U.S.C. § 1983. Plaintiff alleged that
defendant provided plaintiff ineffeetive assistance of counsel during plaintiffs then-
pending state court habeas proceeding. Plaintiff sought damages in the amount of$1.25
The Prison Litigation Reform Act requires the Court to screen prisoner complaints
prior to service of process being issued and to dismiss any complaint that is
"(1) frivolous, malicious, or fails to state a claim upon which relief may be granted or
(2)seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C.
§ 1915A(b). I am required to give the plaintiffs pro se complaint liberal construction
and identify any diseernable cognizable claim. Solomon v. Petrav. 795 F.Sd 111, 787
(8th Cir. 2015).
I have conducted an initial review as required by § 1915A. Plaintiffs complaint
must be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) because plaintiff has failed to
state a claim upon which relief can be granted.
"To state a claim under § 1983, a plaintiff must allege the violation of a right
secured by the Constitution and laws ofthe United States, and must show that the alleged
deprivation was committed by a person acting under color of state law." West v. Atkins.
487 U.S. 42, 48, 108 S.Ct. 2250, 2254-55, 101 L.Ed.2d 40(1988). The United States
Supreme Court has held that "a public defender does not act under color of state law
Case 1:21-cv-01021-CBK Document 24 Filed 11/17/21 Page 2 of 2 PageID #: 93
when performing a lawyer's traditional functions as counsel to a defendant in a criminal
proceeding." Polk County v. Dodson,454 U.S. 312, 324, 102 S.Ct. 445,453, 70 L.Ed.2d
509(1981). Further, the United States Court of Appeals for the Eighth Circuit has held
that the conduct of private attorneys "generally does not constitute action under color of
law." DuBose v. Kelly. 187 F.3d 999, 1003 (8th Cir. 1999).
The defendant was plaintiffs attorney in plaintiffs state court habeas case.
Plaintiffs claim is that defendant provided ineffective assistance of counsel in
conjunction with that state court habeas case. Plaintiff has failed to allege any facts
showing that the defendant was acting under color of state law. The proper avenue to
bring a Sixth Amendment claim that counsel was ineffective is a petition for a writ of
IT IS ORDERED that this matter is dismissed pursuant to 28 U.S.C. § 1915A(b)
for failure to state a claim upon which relief can be granted.
of November, 2021.
BY THE COURT:
CHARLES B. KORNMANN
United States District Judge
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