Shepherd v. Mitchell

Filing 4

FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE: Plaintiff's complaint should be summarily dismissed with prejudice. Magistrate Judge Jeff Kaplan no longer assigned to case. (Ordered by Magistrate Judge Jeff Kaplan on 1/5/2009) (mfw) Modified on 1/5/2009 (mfw).

IN THE I.JNITEDSTATESDISTRICTCOURT NORTHERN DISTRICTOF TEXAS D A L L A S DIVISION DAVID ALAN SHEPHERD
Plaintiff,

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NO.3-08-CV-2282-L

VS. L A W R E N C EB. MITCHELL
Defendant.

F I N D I N G S AND RECOMMENDATION OF THE U N I T E D STATES MAGISTRATE JUDGE T h i s case has been referred to the United Statesmagistratejudge for initial screening p u r s u a n t t o 2 8 U . S . C . $ 6 3 6 ( b ) a n d a s t a n d i n g o r d e r o f r e f e r e n c e f r o m t h e d i s t r i c t c oThefindings urt. and recommendationof the magistratejudge are as follow: I. a T h i s is apro se civil rights actionbroughtby David Alan Shepherd, Texasprisoner,against 29,2008, plaintiff tendered complaint a h i s former attorney,LawrenceB. Mitchell. On December the t o the district clerk and filed an applicationto proceedinforma pauperis. Because information provided by plaintiff in his pauper'saffidavit indicatesthat he lacks the funds necessary prosecute to this case,the court grantedleaveto proceedinformo pauperis and allowed the complaint to be filed. T h e court now determines that this case should be summarilv dismissed under 28 U.S.C.

$ 1e1s(e)(2).
il. I n April 2001,plaintiff allegedlyhired LawrenceB. Mitchell, a Dallas attorney,to prepare and file two writs of habeascotpus challenging plaintiffs convictions for unspecified criminal

offenses.r Although Mitchell was paid $10,000,neitherwrit was ever filed. In December2006, plaintiff learnedthat Mitchell had been electedto a statejudgeship and demandedthe retum of his with plaintiff or his f i l e s . However, Mitchell has ignoredthat requestand refuses communicate to f a m i l y . By this suit, plaintiff seeksa refund of his $10,000 retainer fee, $200,000in punitive damages,and the return of his legal papers. A. A district court may summarilydismissa complaint frled informa pauperis if it concludes t h a t the action: (l) i s frivolous or malicious: fails to statea claim on which relief may be granted; or monetaryreli ef againsta defendantwho i s immune from seeks such relief.

(2) (3)

basisin either law or fact. 2 8 U.S.C. g l9l5(eX2XB). An action is frivolous if it lacks an arguable Inorder 1827,1831-32,104L.8d.2d338(1989). Neitzkev.Williams,490U.S.379,325,109S,Ct. to statea claim on which relief may be granted,the plaintiff must plead "enoughfactsto statea claim 550U.S. 544,127S.Ct.1955, on t o relief that is plausible its face." Bell Atlantic Corp,v. Twombly, the 1 9 7 4 , 1 6 7 L.F;d.2d929(2007). While a complaintdoesnot needdetailedfactual allegations, and "formulaic recitation[s]of the elements p l a i n t i f f must allegemore than "labels,""conclusions," o f a causeof action[.]" See Twombly,127 S.Ct. at 1964-65. "Factualallegationsmust be enough level[.]" Id. at 1965. The court must acceptall wellt o raisea right to relief abovethe speculative pleaded facts as true and view the allegationsin the light most favorable to the plaintiff. SeeIn re

t Although plaintiff doesnot specif, the natureofhis convictions,the TDCJ website indicatesthat he is serving sentencesfor aggravatedsexual assaultand kidnapping.

Katrina Canal BreachesLitig., 495F .3d lgl, 205 (5th Cir. 2007),cert. denied, 128 S.Ct. 123I (2008). B. Plaintiff hasfailed to statea cognizablefederalcivil rights claim againsthis former attorney. Neither appointed nor retained counsel acts "under color of state law" in representinga defendant i n t h e c o u r s e o f acriminalproceeding. PolkCountyv.Dodson,454U.S. 102S.Ct. See 312,324-25, 4 4 5 , 453, 70 L.Ed.2d 509 (1981); Combsv. City of Dallas,289 Fed.Appx.684, 687, 2008 WL 2 8 3 1 2 6 7at*2 (SthCir. Jul. 23,2008). Because Mitchell is not a "stateactor,"he cannotbe suedfor c i v i l rightsviolationsunder42 U.S.C. $ 1983.2 RECOMMENDATION with prejudicepursuant 28 U.S,C. $ to P l a i n t i f f s complaintshouldbe summarilydismissed

I eI s(e)(2).
A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party may file written objectionsto the recommendationwithin l0 daysafter b e i n g servedwith a copy. See28 U.S.C. $ 636(bxl); Fno. R. Ctv. P.72(b). The failure to file written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistratejudge that are acceptedor adoptedby the district court, except upon (5th g r o u n d s o f p l a i n er-ror. Douglassv.UnitedServicesAutomobileAss'n,79F.3d1415,1417 See C i r . 1996).

2 To the extent plaintiff attemptsto sue Mitchell for professionalmalpractice, such a claim arisesunder state law and must be brought in a Texas state court.

DATED: January 5,2009.

MAGISTRATEJUDGts STATES