MacArthur v. Garden et al

Filing 48

MEMORANDUM DECISION and ORDER granting 32 Motion to Dismiss for Failure to State a Claim ; granting 36 Motion to Dismiss for Failure to State a Claim. David J. Angerhofer (Contract Attorney for USP) and Wayne A. Freestone (Contract Attorney for USP) are DISMISSED with prejudice, under 28 U.S.C.S. § 1915(e)(2)(B) (2018), for failure to state a claim on which relief may be granted. Signed by Judge Dee Benson on 3/6/2019. (mas)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
BRET GOLDEN MACARTHUR,
MEMORANDUM DECISION & ORDER
GRANTING MOTIONS TO DISMISS

Plaintiff,
v.
KENNON TUBBS et al.,

Case No. 2:15-CV-117 DB

Defendants.

District Judge Dee Benson

Plaintiff, Bret Golden MacArthur, proceeds in forma pauperis, see 28 U.S.C.S. § 1915
(2018), in this pro se civil-rights suit, see 42 id. § 1983. The Court now grants Defendants
Angerhofer and Freestone’s motions to dismiss.
A. Standard of Review
This Court shall dismiss claims in a complaint filed in forma pauperis that are frivolous,
malicious, or fail to state a claim upon which relief may be granted. See id. § 1915(e)(2)(B).
"Dismissal of a pro se complaint for failure to state a claim is proper only where it is obvious that
the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an
opportunity to amend.” Perkins v. Kan. Dep't of Corrs., 165 F.3d 803, 806 (10th Cir. 1999).
When reviewing a complaint’s sufficiency, the Court "presumes all of plaintiff's factual
allegations are true and construes them in the light most favorable to the plaintiff." Hall v.
Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991).
Because Plaintiff is pro se, the Court construes his pleadings "liberally" and holds them
"to a less stringent standard than formal pleadings drafted by lawyers." Id. at 1110. However,

"[t]he broad reading of the plaintiff’s complaint does not relieve [him] of the burden of alleging
sufficient facts on which a recognized legal claim could be based." Id. While Plaintiff need not
describe every fact in specific detail, "conclusory allegations without supporting factual
averments are insufficient to state a claim on which relief can be based." Id.
B. Plaintiff's Allegations
Plaintiff asserts that prison contract attorneys Angerhofer and Freestone violated his
federal civil rights pursuant to 42 U.S.C. 1983 by denying him meaningful access to the courts
when they declined to help him draft his complaint in this case.
C. Defendants’ Rejoinder
In their motions to dismiss, Defendants contend they are not liable under federal civilrights law because, as private attorneys contracted by the Utah Department of Corrections to
provide initial legal services for state prisoners, they are not “state actors.” First, they correctly
argue that, though lawyers are generally licensed by states, “they are not officials of government
by virtue of being lawyers.” In re Griffiths, 413 U.S. 717, 729 (1973). Further, they cite
precedent that private contractors’ acts do not become governmental acts under § 1983 by reason
of their significant or even total involvement in executing the terms of public contracts. RendellBaker v. Kohn, 457 U.S. 830, 841 (1982). They quote: “[The Fourteenth] Amendment erects no
shield against merely private conduct, however discriminatory or wrongful.” Shelly v. Kramer,
334 U.S. 1, 14 (1948).

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D. Analysis
The Court is persuaded by Defendants’ arguments, especially in light of an earlier case
decided in this Court, Smith v. Freestone, Case No. 2:97-CV-944. In a Report and
Recommendation, adopted in a dismissal order by the district court judge, the court held that
“prison contract attorneys do not work under color of state law for purposes of § 1983.” See id.,
slip op. at 3 (D. Utah Aug. 20, 1998). The dismissal was affirmed by the Tenth Circuit, which
agreed that attorneys who contracted with the state to provide legal help to inmates were not
acting under “color of state law” in performing those duties. Smith v. Freestone, No. 99-4005,
1999 U.S. App. LEXIS 16766, at *2 (10th Cir. July 20,1999); cf. Polk County v Dodson, 454
U.S. 312, 321 (1981) (“[A] public defender is not amenable to administrative direction in the
same sense as other employees of the State.”).
ORDER
IT IS HEREBY ORDERED that Defendants’ Motions to Dismiss are GRANTED.
(See Doc. Nos. 32 & 36.) Defendants Angerhofer and Freestone are DISMISSED with
prejudice, under 28 U.S.C.S. § 1915(e)(2)(B) (2018), for failure to state a claim on which relief
may be granted.
DATED this 6th day of March, 2019.
BY THE COURT:

DEE BENSON
United States District Judge

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