McAlister v. Tolar et al

Filing 5

MEMORANDUM. An appropriate order will enter Signed by District Judge Harry S Mattice, Jr on 11/9/10. (JGK, )

M c A l i s t e r v. Tolar et al

Doc. 5

UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF TENNESSEE A T WINCHESTER

K E IT H W. McALISTER, P l a in tif f , v. 4:10-cv-74

S G T . JOSH TOLAR, TIM MILLER, a n d HERSHELL D. KOGER, D e f e n d a n ts .

MEMORANDUM

T h i s pro se civil rights action under 42 U.S.C. § 1983 was filed in forma pauperis in th e United States District Court for the Middle District of Tennessee, Nashville Division, and tra n sf e rre d to this court without service of process. For the reasons stated below, service of p ro c e ss shall not issue and this action will be DISMISSED. P la in tif f is in the custody of the Tennessee Department of Correction. His complaint c o n c e rn s his arrest and conviction in Bedford County, Tennessee. The defendants are Sgt. J o s h Tolar and Officer Tim Miller, both of whom are with the Shelbyville Police D ep artm en t, and attorney Hershell D. Koger. W ith respect to Sgt. Tolar and Officer Miller, plaintiff alleges that on February 27, 2 0 0 9 , these two defendants forcibly entered plaintiff's residence without a warrant or consent, f a ls e ly arrested and handcuffed plaintiff, took plaintiff to the Bedford County Jail where he

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w a s illegally detained, and subsequently illegally searched his home, all in violation of p l a in t if f 's First Amendment right to privacy, his Fourth Amendment right against u n re a so n a b le searches and seizures, and his Eighth Amendment right against cruel and u n u su a l treatment. F e d e ra l courts must refer to state statutes and state law to determine the statute of lim ita tio n and tolling rules with respect to an action brought pursuant to 42 U.S.C. § 1983. B o a rd of Regents v. Tomanio, 446 U.S. 478 (1980). The applicable statute of limitation c o n tro llin g a civil rights action for damages in the State of Tennessee is Tenn. Code Ann. § 2 8 -3 -1 0 4 , which provides a one (1) year period in which a civil rights lawsuit may be c o m m e n c ed after the cause of action accrued; the statute begins to run when the plaintiff k n o w s or has reason to know of the injury upon which his action is based. Sevier v. Turner, 7 4 2 F.2d 262, 273 (6th Cir. 1984). If it is obvious from the face of the complaint that the plaintiff's cause of action is c le a rly barred by the applicable statute of limitation, the district court may sua sponte dismiss th e case as frivolous pursuant to 28 U.S.C. § 1915(e) and § 1915A. See, e.g., Day v. E.I. Du P o n t De Nemours and Company, No. 97-6233, 1998 WL 669939 *1 (6th Cir. September 17, 1 9 9 8 ) (unpublished decision) ("a sua sponte dismissal of an in forma pauperis complaint is a p p ro p ria te where the complaint bears an affirmative defense such as the statute of lim itatio n s and is therefore frivolous on its face").

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In this case, plaintiff's cause of action against defendants Tolar and Miller accrued at th e time of his arrest on February 27, 2009. See Wallace v. Kato, 549 U.S. 384, 397 (2007) ( "W e hold that the statute of limitations upon a § 1983 claim seeking damages for a false a rre st in violation of the Fourth Amendment, where the arrest is followed by criminal p ro c e e d i n g s , begins to run at the time the claimant becomes detained pursuant to legal p ro c e s s ." ). The Middle District received plaintiff's complaint on October 15, 2010. Accordingly, s in c e the applicable statute of limitation began to run on plaintiff's claim on or about F e b ru a ry 27, 2009, and since this action was not filed until October 15, 2010, plaintiff's c la im s against defendants Tolar and Miller are barred by the one-year statute of limitation. W ith respect to defendant Koger, plaintiff claims that Mr. Koger was appointed to re p re se n t him in his criminal proceedings. According to plaintiff, Mr. Koger deliberately n e g le c te d plaintiff's case, made no effort to contest the bogus charges against him, and then c o e rc e d plaintiff into pleading guilty, in violation of plaintiff's Sixth Amendment right to the e f f e c tiv e assistance of counsel. In order to state a claim under 42 U.S.C. § 1983, plaintiff must establish that he was d e p riv e d of a federal right by a person acting under color of state law. Black v. Barberton C itiz e n s Hospital, 134 F.3d 1265, 1267 (6th Cir. 1998); O'Brien v. City of Grand Rapids, 2 3 F.3d 990, 995 (6th Cir. 1994); Russo v. City of Cincinnati, 953 F.2d 1036, 1042 (6th Cir. 1 9 9 2 ). The courts have uniformly held that neither a public defender nor a private attorney,

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w h e th e r appointed or retained, acts under color of law or is otherwise subject to suit under 4 2 U.S.C. § 1983. See, e.g., Polk County v. Dodson, 454 U.S. 312, 325 (1981); Mulligan v. S c h la c h te r, 389 F.2d 231, 233 (6th Cir. 1968). P lain tiff has stated at best a claim of attorney malpractice against defendant Koger, a n d the proper forum for that would be the Tennessee state courts. Pursuant to 28 U.S.C. § 1 3 6 7 (c )(3 ), this court declines to exercise supplemental jurisdiction over any pendent state c la im s which the plaintiff may have. A lth o u g h this court is mindful that a pro se complaint is to be liberally construed, H a in e s v. Kerner, 404 U.S. 519, 520-21 (1972), it is quite clear that the plaintiff has not a lle g e d the deprivation of any constitutionally protected right, privilege or immunity, and, th e re f o re , the court finds his claims to be frivolous under 28 U.S.C. §§ 1915(e) and 1915A. It appears beyond doubt that plaintiff can prove no set of facts which would entitle him to relief , Malone v. Colyer, 710 F.2d 258 (6th Cir. 1983), and that plaintiff's claim lacks an a rg u a b le basis in law and fact, Neitzke v. Williams, 490 U.S. 319, 325 (1989). Therefore, this a c tio n will be DISMISSED sua sponte, as frivolous and for failure to state a claim upon w h ich relief can be granted under § 1983. The court will CERTIFY that any appeal from th is action would not be taken in good faith and would be totally frivolous. See Rule 24 of th e Federal Rules of Appellate Procedure.

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A N APPROPRIATE ORDER WILL ENTER. /s/Harry S. Mattice, Jr. HARRY S. MATTICE, JR. UNITED STATES DISTRICT JUDGE

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