Neilson v. Herbert et al

Filing 29

MEMORANDUM DECISION & DISMISSAL ORDER: granting 21 Motion to Dismiss; granting 23 Motion to Dismiss. Plaintiffs Complaint is DISMISSED with prejudice, Under 28 USCS 1915(e)(2)(B)(2017), for failure to state a claim on which re lief may be granted. And, neither liberal interpretation of Plaintiffs claims nor opportunity to amend would lead to a different result. It is further ordered that the Clerk's Office mail plaintiff a copy of the Pro Se Litigant Guide with a form habeas petition for Plaintiff to use should be choose to file a habeas corpus petition. Signed by Judge Clark Waddoups on 08/11/2017. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
LUCAS TROY NEILSON,
Plaintiff,

MEMORANDUM DECISION &
DISMISSAL ORDER

v.
GARY HERBERT et al.,
Defendants.

Case No. 2:16-CV-1051 CW
District Judge Clark Waddoups

Plaintiff, Lucas Troy Neilson, an inmate at Salt Lake County Jail, filed this pro se civil
rights suit, see 42 U.S.C.S. § 1983 (2017), proceeding in forma pauperis. See 28 id. § 1915. His
Complaint is now before the Court for screening. See id. § 1915(e). Defendants have also moved
for dismissal for failure to state a claim upon which relief may be granted.
SCREENING ANALYSIS
A. Standard of Review
This Court shall dismiss any claims in a complaint filed in forma pauperis if they are
frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary
relief against an immune defendant. 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 the sufficiency of a
complaint 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 proceeding pro se the Court must construe his pleadings "liberally"
and hold 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's Complaint alleges violations of his right to effective assistance of counsel by
Utah Governor Gary Herbert and Salt Lake Legal Defender Association employees (LDA
defendants), Patrick Anderson (executive director), Andrea Garland (defense counsel), and Amy
Fowler (defense counsel).
C. Supervisory Liability
The complaint must clearly state what each individual defendant did to violate Plaintiff's
civil rights. See Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976) (stating personal
participation of each named defendant is essential allegation in civil rights action). "To state a
claim, a complaint must 'make clear exactly who is alleged to have done what to whom.'" Stone v.
Albert, No. 08-2222, 2009 U.S. App. LEXIS 15944, at *4 (10th Cir. July 20, 2009)
(unpublished) (emphasis in original) (quoting Robbins, 519 F.3d at 1250). Plaintiff may not
name an entity or individual as a defendant based solely on supervisory position. See Mitchell v.
Maynard, 80 F.3d 1433, 1441 (10th Cir. 1996) (stating supervisory status alone is insufficient to
support liability under § 1983). Further, "denial of a grievance, by itself without any connection
to the violation of constitutional rights alleged by plaintiff, does not establish personal

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participation under § 1983." Gallagher v. Shelton, No. 09-3113, 2009 U.S. App. LEXIS 25787,
at *11 (10th Cir. Nov. 24, 2009).
Based on this standard, Plaintiff has done nothing to affirmatively link Defendant Herbert
to a violation of his constitutional rights, but has instead identified him merely as a supervisor of
sorts. Plaintiff's claim against him may not survive this screening then. Defendant Herbert is thus
dismissed as a defendant.
State-Actor Requirement
To establish a cause of action under § 1983, Plaintiff must allege (1) the deprivation of a
federal right by (2) a person acting under color of state law (without immunity). Gomez v.
Toledo, 446 U.S. 635, 640 (1980); Watson v. City of Kansas City, 857 F.2d 690, 694 (10th Cir.
1988).
The Complaint names LDA defendants based on their role as Plaintiff's governmentappointed defense counsel. The following rule therefore applies: "[T]he Supreme Court has
stated that 'a public defender does not act under color of state law when performing a lawyer's
traditional functions as counsel to a defendant in a criminal proceeding.'" Garza v. Bandy, No.
08-3152, 2008 U.S. App. LEXIS 17440, at *4 (10th Cir. Aug. 13, 2008) (unpublished) (quoting
Polk County v. Dodson, 454 U.S. 312, 325 (1981)). Additionally, "'even though the defective
performance of defense counsel may cause the trial process to deprive an accused person of his
liberty in an unconstitutional manner, the lawyer who may be responsible for the unconstitutional
state action does not himself act under color of state law within the meaning of § 1983.'" Id.
(quoting Briscoe v. LaHue, 460 U.S. 325, 329 n. 6 (1983)).

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LDA defendants were thus not state actors, as they must be for Plaintiff to assert a federal
civil-rights claim against them. Thus, Plaintiff's claims against them may not proceed here.
D. Heck
Finally, and alternatively, the Supreme Court explained in Heck “that a § 1983 action that
would impugn the validity of a plaintiff's underlying conviction cannot be maintained unless the
conviction has been reversed on direct appeal or impaired by collateral proceedings." Nichols v.
Baer, No. 08-4158, 2009 U.S. App. LEXIS 4302, at *4 (10th Cir. Mar. 5, 2009) (unpublished)
(citing Heck v. Humphrey, 512 U.S. 477, 486-87 (1994)). Heck keeps litigants "from using a §
1983 action, with its more lenient pleading rules, to challenge their conviction or sentence
without complying with the more stringent exhaustion requirements for habeas actions." Butler
v. Compton, 482 F.3d 1277, 1279 (10th Cir. 2007) (citation omitted). Heck clarifies that "civil
tort actions are not appropriate vehicles for challenging the validity of outstanding criminal
judgments." 512 U.S. at 48.
Plaintiff argues that Defendants violated his constitutional rights regarding state criminal
proceedings. These arguments attack Plaintiff's underlying conviction and sentence. Heck
requires that, when a plaintiff requests damages in a § 1983 suit, this Court must decide whether
judgment in the plaintiff's favor would unavoidably imply that the conviction or sentence is
invalid. Id. at 487. Here, it would. If this Court were to conclude that Plaintiff's constitutional
right to effective assistance of counsel was violated in a prejudicial manner, it would be stating
that Plaintiff's conviction and sentence were not valid.

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Thus, this complaint "must be dismissed unless the plaintiff can demonstrate that the
conviction or sentence has already been invalidated." Id. This has apparently not happened. The
Court must thus dismiss Plaintiff's complaint.
Finally, Plaintiff's request to have his conviction invalidated may be properly raised only
in a habeas corpus petition.
ORDER
IT IS HEREBY ORDERED that Defendants’ Motions to Dismiss are GRANTED. (See
Docket Entry #s 21 & 23.) Plaintiff's Complaint is DISMISSED with prejudice, under 28
U.S.C.S. § 1915(e)(2)(B) (2017), for failure to state a claim on which relief may be granted.
And, neither liberal interpretation of Plaintiff's claims nor opportunity to amend would lead to a
different result.
IT IS FURTHER ORDERED that the Clerk's Office shall mail Plaintiff a copy of the
Pro Se Litigant Guide with a form habeas petition for Plaintiff to use should he choose to file a
habeas-corpus petition.
DATED this 11th day of August, 2017.
BY THE COURT:

Clark Waddoups
United States District Court Judge

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