Hazel, III v. Riley, II

Filing 8

ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL, DISMISSING COMPLAINT, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS Motions terminated: 3 . Signed by Judge James D. Todd on 10/13/15. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
EDWIN R. HAZEL, III,
Plaintiff,
VS.
NOEL H. RILEY, II,
Defendant.

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No. 15-1077-JDT-egb

ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL,
DISMISSING COMPLAINT,
CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH
AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

On April 8, 2015, Plaintiff Edwin R. Hazel, III, who was, at the time, incarcerated at the
Weakley County Detention Facility in Dresden, Tennessee, filed a pro se complaint pursuant to 42
U.S.C. § 1983, accompanied by a motion seeking leave to proceed in forma pauperis and a motion
for appointment of counsel (ECF Nos. 1, 2 & 3.) In an order issued on April 9, 2015, the Court
granted leave to proceed in forma pauperis and assessed the civil filing fee pursuant to the Prison
Litigation Reform Act, 28 U.S.C. § 1915(a)-(b). (ECF No. 5.) Plaintiff has sued Noel H. Riley, II,
who was an Assistant Public Defender for Weakley County.
The factual allegations of the complaint are as follows:
2. Plaintiff was lied to and tricked into a guilty plea by the defendant. Plaintiff was
told by pleading guilty, it would be a misdemeanor and sentence would be 11 months
29 days to run concurrent with Plaintiff’s probation violation of 2 years.
3. Plaintiff has suffered an injustice in that his plea was not knowingly, intelligently,
and voluntarily entered as required by the 5th and 14th Amendments.

4. Plaintiff recieved [sic] ineffective assistance of counsel in violation of the 6th
Amendment.
5. Plaintiff recieved [sic] a felony for simple poss. of marijuanna [sic] and 3 years
in prison for 5.1 grams of marijuanna [sic].
(ECF No. 1 at 3.) Plaintiff seeks money damages and a declaration that his constitutional rights
were violated. (Id. at 4.)
Pursuant to 28 U.S.C. § 1915(e)(1), “[t]he court may request an attorney to represent any
person unable to afford counsel.” However, “[t]he appointment of counsel in a civil proceeding is
not a constitutional right.” Lanier v. Bryant, 332 F.3d 999, 1006 (6th Cir. 2003); see also Shepherd
v. Wellman, 313 F.3d 963, 970 (6th Cir. 2002) (“[T]he plaintiffs were not entitled to have counsel
appointed because this is a civil lawsuit.”); Lavado v. Keohane, 992 F.2d 601, 605-06 (6th Cir.
1993) (no constitutional right to counsel in a civil case); Farmer v. Haas, 990 F.2d 319, 323 (7th
Cir. 1993) (“There is no constitutional or . . . statutory right to counsel in federal civil cases . . . .”).
Appointment of counsel is “a privilege that is justified only by exceptional circumstances.” Lavado,
992 F.2d at 606 (internal quotation marks and citation omitted). “In determining whether
‘exceptional circumstances’ exist, courts have examined the type of case and the abilities of the
plaintiff to represent himself. This generally involves a determination of the complexity of the
factual and legal issues involved.” Id. at 606 (internal quotation marks and citations omitted).
Appointment of counsel is not appropriate when a pro se litigant’s claims are frivolous or when his
chances of success are extremely slim. Id. (citing Mars v. Hanberry, 752 F.2d 254, 256 (6th Cir.
1985)); see also Cleary v. Mukasey, 307 F. App’x 963, 965 (6th Cir. 2009) (same).1

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These factors are important, because § 1915(e)(1) “does not authorize the federal courts
to make coercive appointments of counsel” to represent indigent civil litigants. Mallard v.
United States Dist. Ct., 490 U.S. 296, 310 (1989).
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Plaintiff has not satisfied his burden of demonstrating that the Court should exercise its
discretion to appoint counsel in this case. Nothing in Plaintiff’s motion serves to distinguish this
case from the many other cases filed by pro se litigants who are not trained attorneys. The motion
for appointment of counsel is DENIED.
The Court is required to screen prisoner complaints and to dismiss any complaint, or any
portion thereof, if the complaint—
(1)
is 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); see also 28 U.S.C. § 1915(e)(2)(B).
In assessing whether the complaint in this case states a claim on which relief may be granted,
the standards under Fed. R. Civ. P. 12(b)(6), as stated in Ashcroft v. Iqbal, 556 U.S. 662, 677-79
(2009), and in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007), are applied. Hill v.
Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). “Accepting all well-pleaded allegations in the
complaint as true, the Court ‘consider[s] the factual allegations in [the] complaint to determine if
they plausibly suggest an entitlement to relief.’” Williams v. Curtin, 631 F.3d 380, 383 (6th Cir.
2011) (quoting Iqbal, 556 U.S. at 681). “[P]leadings that . . . are no more than conclusions, are not
entitled to the assumption of truth. While legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations.” Iqbal, 556 U.S. at 679; see also
Twombly, 550 U.S. at 555 n.3 (“Rule 8(a)(2) still requires a ‘showing,’ rather than a blanket
assertion, of entitlement to relief. Without some factual allegation in the complaint, it is hard to see

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how a claimant could satisfy the requirement of providing not only ‘fair notice’ of the nature of the
claim, but also ‘grounds’ on which the claim rests.”).
“A complaint can be frivolous either factually or legally.” Hill, 630 F.3d at 470 (citing
Neitzke v. Williams, 490 U.S. 319, 325 (1989)). “Any complaint that is legally frivolous would ipso
facto fail to state a claim upon which relief can be granted.” Id. (citing Neitzke, 490 U.S. at 328-29).
Whether a complaint is factually frivolous under §§ 1915A(b)(1) and
1915(e)(2)(B)(i) is a separate issue from whether it fails to state a claim for relief.
Statutes allowing a complaint to be dismissed as frivolous give judges not only the
authority to dismiss a claim based on an indisputably meritless legal theory, but also
the unusual power to pierce the veil of the complaint’s factual allegations and
dismiss those claims whose factual contentions are clearly baseless. Unlike a
dismissal for failure to state a claim, where a judge must accept all factual allegations
as true, a judge does not have to accept “fantastic or delusional” factual allegations
as true in prisoner complaints that are reviewed for frivolousness.
Id. at 471 (citations and internal quotation marks omitted).
“Pro se complaints are to be held ‘to less stringent standards than formal pleadings drafted
by lawyers,’ and should therefore be liberally construed.” Williams, 631 F.3d at 383 (quoting
Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004)). Pro se litigants, however, are not exempt
from the requirements of the Federal Rules of Civil Procedure. Wells v. Brown, 891 F.2d 591, 594
(6th Cir. 1989); see also Brown v. Matauszak, 415 F. App’x 608, 612, 613 (6th Cir. Jan. 31, 2011)
(affirming dismissal of pro se complaint for failure to comply with “unique pleading requirements”
and stating “a court cannot ‘create a claim which [a plaintiff] has not spelled out in his pleading’”
(quoting Clark v. Nat’l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975))); Payne v.
Sec’y of Treas., 73 F. App’x 836, 837 (6th Cir. 2003) (affirming sua sponte dismissal of complaint
pursuant to Fed. R. Civ. P. 8(a)(2) and stating, “[n]either this court nor the district court is required
to create Payne’s claim for her”); cf. Pliler v. Ford, 542 U.S. 225, 231 (2004) (“District judges have

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no obligation to act as counsel or paralegal to pro se litigants.”); Young Bok Song v. Gipson, 423 F.
App’x 506, 510 (6th Cir. 2011) (“[W]e decline to affirmatively require courts to ferret out the
strongest cause of action on behalf of pro se litigants. Not only would that duty be overly
burdensome, it would transform the courts from neutral arbiters of disputes into advocates for a
particular party. While courts are properly charged with protecting the rights of all who come before
it, that responsibility does not encompass advising litigants as to what legal theories they should
pursue.”).
To state a claim under 42 U.S.C. § 1983,2 a plaintiff must allege two elements: (1) a
deprivation of rights secured by the “Constitution and laws” of the United States (2) committed by
a defendant acting under color of state law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150 (1970).
Plaintiff has no claim against Defendant Riley under 42 U.S.C. § 1983. “A § 1983 plaintiff
may not sue purely private parties.” Brotherton v. Cleveland, 173 F.3d 552, 567 (6th Cir. 1999).
Thus, “[i]n order to be subject to suit under § 1983, [a] defendant’s actions must be fairly
attributable to the state.” Collyer v. Darling, 98 F.3d 211, 231-32 (6th Cir. 1997). Attorneys,
whether court appointed or privately retained, do not act under color of state law for purposes of
§ 1983. Smith v. Hilltop Basic Res., Inc., 99 F. App’x 644, 646 (6th Cir. 2004); Harmon v. Hamilton

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Section 1983 provides: Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress, except that in any action brought against a judicial officer for an act or
omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a
declaratory decree was violated or declaratory relief was unavailable. For the purposes of this
section, any Act of Congress applicable exclusively to the District of Columbia shall be
considered to be a statute of the District of Columbia.
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Cnty. Court of Common Pleas, 83 F. App’x 766, 767 (6th Cir. 2003) (“Here, the defendant attorneys
did not act under color of state law as privately retained attorneys, although the acts alleged related
to state court litigation.”); Otworth v. Vaderploeg, 61 F. App’x 163, 165 (6th Cir. 2003) (“A lawyer
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.”); Catz v. Chalker, 142 F.3d 279, 289 (6th Cir. 1998). The
Supreme Court has held that even public defenders such as Defendant Riley do not act under color
of state law for purposes of § 1983. Polk Cnty. v. Dodson, 454 U.S. 312 (1981); McCord v. Bailey,
636 F.2d 606, 613 (D.C. Cir. 1979) (applying Polk County to retained criminal lawyers).
Even if Plaintiff could maintain a § 1983 claim against Defendant Riley, he could not sue
for money damages. The Supreme Court has explained:
We hold that, in order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions whose unlawfulness
would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct appeal, expunged by executive
order, declared invalid by a state tribunal authorized to make such determination, or
called into question by a federal court’s issuance of a writ of habeas corpus, 28
U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or
sentence that has not been so invalidated is not cognizable under § 1983. Thus,
when a state prisoner seeks damages in a § 1983 suit, the district court must consider
whether a judgment in favor of the plaintiff would necessarily imply the invalidity
of his conviction or sentence; if it would, the complaint must be dismissed unless the
plaintiff can demonstrate that the conviction or sentence has already been
invalidated. But if the district court determines that the plaintiff’s action, even if
successful, will not demonstrate the invalidity of any outstanding criminal judgment
against the plaintiff, the action should be allowed to proceed, in the absence of some
other bar to the suit.
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) (footnotes omitted). Thus, a prisoner has no cause
of action under § 1983 if the claims in that action hinge on factual proof that would call into question
the validity of an order directing his confinement unless and until any prosecution is ended in his
favor, an existing conviction is set aside, or the confinement is declared illegal. Id. at 481-82;
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Schilling v. White, 58 F.3d 1081, 1086 (6th Cir. 1995). According to the Tennessee Department of
Correction’s Felony Offender Information website, Plaintiff was released from prison on or about
July 9, 2015, because his sentence expired, see https://apps.tn.gov/foil-app/search.jsp. Plaintiff does
not allege that his conviction was reversed, set aside, or declared invalid.
The Sixth Circuit recently held that a district court may allow a prisoner to amend his
complaint to avoid a sua sponte dismissal under the PLRA. LaFountain v. Harry, 716 F.3d 944,
951 (6th Cir. 2013); see also Brown v. R.I., No. 12-1403, 2013 WL 646489, at *1 (1st Cir. Feb. 22,
2013) (per curiam) (“Ordinarily, before dismissal for failure to state a claim is ordered, some form
of notice and an opportunity to cure the deficiencies in the complaint must be afforded.”). Leave
to amend is not required where a deficiency cannot be cured. Brown, 2013 WL 646489, at *1;
Gonzalez-Gonzalez v. United States, 257 F.3d 31, 37 (1st Cir. 2001) (“This does not mean, of
course, that every sua sponte dismissal entered without prior notice to the plaintiff automatically
must be reversed. If it is crystal clear that the plaintiff cannot prevail and that amending the
complaint would be futile, then a sua sponte dismissal may stand.”); Grayson v. Mayview State
Hosp., 293 F.3d 103, 114 (3d Cir. 2002) (“in forma pauperis plaintiffs who file complaints subject
to dismissal under Rule 12(b)(6) should receive leave to amend unless amendment would be
inequitable or futile”); Curley v. Perry, 246 F.3d 1278, 1284 (10th Cir. 2001) (“We agree with the
majority view that sua sponte dismissal of a meritless complaint that cannot be salvaged by
amendment comports with due process and does not infringe the right of access to the courts.”). In
this case, the deficiencies in Plaintiff’s complaint cannot be cured by amendment.
Therefore, the Court DISMISSES the complaint for failure to state a claim on which relief
may be granted, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).

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The Court must also consider whether Plaintiff should be allowed to appeal this decision in
forma pauperis, should he seek to do so. A non-prisoner desiring to proceed on appeal in forma
pauperis must obtain pauper status under Federal Rule of Appellate Procedure 24(a). See Callihan
v. Schneider, 178 F.3d 800, 803-04 (6th Cir. 1999). However, Rule 24(a)(3) provides that if a party
was permitted to proceed in forma pauperis in the district court, he may also proceed on appeal in
forma pauperis without further authorization unless the district court “certifies that the appeal is not
taken in good faith or finds that the party is not otherwise entitled to proceed in forma pauperis.”
If the district court denies pauper status, the party may file a motion to proceed in forma pauperis
in the Court of Appeals. Fed. R. App. P. 24(a)(4)-(5).
The good faith standard is an objective one. Coppedge v. United States, 369 U.S. 438, 445
(1962). The test for whether an appeal is taken in good faith is whether the litigant seeks appellate
review of any issue that is not frivolous. Id. It would be inconsistent for a district court to determine
that a complaint should be dismissed prior to service on the defendants, but has sufficient merit to
support an appeal in forma pauperis. See Williams v. Kullman, 722 F.2d 1048, 1050 n.1 (2d Cir.
1983). The same considerations that lead the Court to dismiss this case for failure to state a claim
also compel the conclusion that an appeal would not be taken in good faith.
It is CERTIFIED, pursuant to Federal Rule of Appellate Procedure 24(a), that any appeal in
this matter by Plaintiff would not be taken in good faith. Leave to proceed on appeal in forma
pauperis is, therefore, DENIED. Accordingly, if Plaintiff files a notice of appeal, he must also pay
the full $505 appellate filing fee or file a motion for leave to appeal in forma pauperis and
supporting affidavit in the Sixth Circuit Court of Appeals.

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For analysis under 28 U.S.C. § 1915(g) of future filings, if any, by Plaintiff, this is the first
dismissal with prejudice of one of his cases as frivolous or for failure to state a claim. This “strike”
shall take effect upon entry of judgment.
The Clerk is directed to prepare a judgment.
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

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