Prasad v. Friedman et al
Filing
19
MEMORANDUM OPINION. See Opinion for details. Signed by District Judge M. Hannah Lauck on 6/25/2018. (sbea, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
CLERK, U.S. DISTf�ICT COURl
RICHMO'.-1D. VA
SUNDARI K. PRASAD,
Plaintiff,
V.
Civil Action No.3: 17CV322
RICK FRIEDMAN, et al.,
Defendants.
MEMORANDUM OPINION
Sundari K. Prasad, a Virginia inmate proceeding pro se and informa pauperis, filed this
42 U.S.C. § 1983 action.1 The matter is before the Court for evaluation pursuant to 28 U. S.C.
§§ 1915(e)(2) and 1915A.
I. Preliminary Review
Pursuant to the Prison Litigation Reform Act ("PLRA") this Court must dismiss any
action filed by a prisoner if the Court determines the action ( 1) "is frivolous" or (2) "fails to state
a claim on which relief may be granted." 28 U. S.C. § 1915(e)(2). The first standard includes
claims based upon '"an indisputably meritless legal theory,"' or claims where the "'factual
contentions are clearly baseless."' Clay v. Yates, 809 F. Supp. 417, 427 (E.D. Va.1992)
(quoting Neitzke v. Williams, 490 U.S.319, 327 (1989)), aff'd, 36 F.3d 1091 (4th Cir.1994).
1
The statute provides, in pertinent part:
Every person who, under color of any statute ... of any State ...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 ....
42 u.s.c. § 1983.
The second standard is the familiar standard for a motion to dismiss under Fed. R. Civ. P.
12(b)(6).
"A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint;
importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the
applicability of defenses." Republican Party ofNC. v. Martin, 980 F.2d 943,952 (4th Cir.
1992) (citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure§ 1356
(1990)). In considering a motion to dismiss for failure to state a claim, a plaintiff's well-pleaded
allegations are taken as true and the complaint is viewed in the light most favorable to the
plaintiff. Atfylan Labs., Inc. v. Matkari, 7F.3d1130, 1134 (4th Cir. 1993); see also Martin, 980
F.2d at 952. This principle applies only to factual allegations, however, and "a court considering
a motion to dismiss can choose to begin by identifying pleadings that, because they are no more
than conclusions, are not entitled to the assumption of truth." Ashcroft v. Iqbal, 556 U.S. 662,
679 (2009).
The Federal Rules of Civil Procedure "require[] only 'a short and plain statement of the
claim showing that the pleader is entitled to relief,• in order to 'give the defendant fair notice of
what the ... claim is and the grounds upon which it rests.... Bell At/. Corp. v. Twombly,
550 U.S. 544,555 (2007) (second alteration in original) (quoting Conley v. Gibson, 355 U.S. 41,
47 (1957)). Plaintiffs cannot satisfy this standard with complaints containing only "labels and
conclusions" or a "formulaic recitation of the elements of a cause of action." Id (citations
omitted). Instead, a plaintiff must allege facts sufficient ''to raise a right to relief above the
speculative level," id (citation omitted), stating a claim that is "plausible on its face," id at 570,
rather than merely "conceivable." Id. "A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
2
for the misconduct alleged." Iqbal, 556 U.S. at 678 (citing Bell At/. Corp., 550 U.S. at 556). In
order for a claim or complaint to survive dismissal for failure to state a claim, the plaintiff must
"allege facts sufficient to state all the elements of [his or] her claim." Bass v. E.l DuPont de
Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003) (citing Dickson v. Microsoft Corp., 309 F.3d
193,213 (4th Cir. 2002); Iodice v. United States, 289 F.3d 270,281 (4th Cir. 2002)). Lastly,
while the Court liberally construes prose complaints, Gordon v. Leeke, 574 F.2d 1147, 1151 (4th
Cir. 1978), it will not act as the inmate's advocate and develop, sua sponte, statutory and
constitutional claims that the inmate failed to clearly raise on the face of his or her complaint.
See Brock v. Carroll, 107 F.3d 241, 243 (4th Cir. 1997) (Luttig, J., concurring); Beaudett v. City
ofHampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
II. Prasad's Complaint
The action proceeds on Prasad's Amended Second Particularized Complaint
("Complaint," ECF No. 18).2 Prasad names three attorneys from the Friedman Law Firm3 who
apparently represented Prasad in a state court custody proceeding. Prasad contends the
Defendants "(collectively) violated [her] civil rights by taking advantage of Plaintiffs incapacity
to handle situations fully" amongst other complaints. (Compl. 4 (capitalization corrected).)
Plaintiff seeks declaratory, injunctive, and monetary relief. (Id. at 5.)
2
This is the most recent complaint filed by Prasad and it therefore supplants her prior
Particularized Complaints. (See ECF No. 14, at 2.) The Court employs the pagination assigned
by the CM/ECF docketing system to Prasad' s submissions. The Court corrects the spelling,
punctuation, and removes the emphasis in the quotations from Prasad' s Complaint.
3
Prasad names attorneys Richard Friedman, Kimberly Fitzgerald, and Lindsay Dugan.
(Compl. I.)
3
III. Analysis
It is both unnecessary and inappropriate to engage in an extended discussion of Prasad's
theories for relief. See Cochran v. Morris, 73 F.3d 1310, 1315 (4th Cir. 1996)(emphasizing that
"abbreviated treatment" is consistent with Congress's vision for the disposition of frivolous or
"insubstantial claims" (citing Neitzke v. Williams, 490 U.S. 319, 324 (1989))). Ultimately,
Prasad' s Complaint will be dismissed for failing to state a claim under Federal Rule of Civil
Procedure 12(b)(6) and as legally frivolous.
In order to state a viable claim under 42 U .S.C. § 1983, a plaintiff must allege that a
person acting under color of state law deprived him or her of a constitutional right or of a right
conferred by a law of the United States. See Dowe v. Total Action Against Poverty in Roanoke
Valley, 145 F.3d 653,658 (4th Cir. 1998) (citing 42 U.S.C. § 1983). Courts must liberally
construe pro se civil rights complaints in order to address constitutional deprivations. Gordon v.
Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978).
Prasad names three attorneys who apparently represented her in a state court custody
proceeding. "It is well-settled that attorneys engaged in private practice do not act under color of
state law within the meaning of§ 1983." Parent v. New York, 786 F. Supp. 2d 516, 538
(N.D.N.Y.2011) (citation omitted), aff'd, 485 F. App'x 500 (2nd Cir. 2012); see Milan v.
Wertheimer, 808 F.3d 961, 964 (2d Cir. 2015); Davis v. Self, 547 F. App'x 927, 934 (11th Cir.
2013); cf Polk Cty. v. Dodson, 454 U.S. 312,318, (1981) (holding that court appointed lawyer is
not an officer of the court within§ 1983).4 Accordingly, Prasad's claims against Defendants will
be DISMISSED WITH PREJUDICE for failure to state a claim and as legally frivolous.
4
To the extent that Prasad alleges that these attorneys were somehow involved with her
criminal case, defense attorneys and public defenders also do not act under color of state or
federal authority when they represent defendants in criminal proceedings. See, e.g., Polk Cty.,
4
IV. Conclusion
For the foregoing reasons, Prasad's claims will be DISMISSED for failure to state a
claim and as legally frivolous. The action will be DISMISSED. The Clerk will be DIRECTED
to note the disposition of the action for the purposes of 28 U .S.C. § 1915(g).
An appropriate Order will accompany this Memorandum Opinion.
2 5 t.018
Date: JUN
Richmond, Virginia
454 U.S. at 325 ("[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."); Cox v.
Hellerstein, 685 F .2d 1098, 1099 (9th Cir. 1982) (holding that district court lacked jurisdiction
over Bivens action because federal public defender does not act under color of federal law).
5
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