Bryant Jr. v. Colaw
Filing
9
MEMORANDUM OPINION. SEE OPINION FOR COMPLETE DETAILS. Signed by District Judge Robert E. Payne on 12/28/2017. Copy of Memorandum Opinion mailed to Plaintiff.(ccol, ) Modified on 12/29/2017 (ccol, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
DEC 2 9 2017
JOHN A. BRYANT, JR.,
CLERK. U.S.
Plaintiff,
[;;'~.-:-,:;1CI COUR1
RICHMOl·lD. VA
Civil Action No. 3:17CV459
v.
REBECCA SUE COLAW,
Defendant.
MEMORANDUM OPINION
John A.
Bryant,
forma pauperis,
before
§§
the
a
has
federal inmate proceeding pro se and in
filed
Court
for
this
Bivens'" action.
evaluation
The matter is
pursuant
to
U.S. c.
28
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)
a
relief
§
claim
on
1915(e) (2);
includes
which
see
claims
28
based
"is frivolous" or
U.S.C.
upon
may
§
'''an
be
(2)
"fails to state
granted."
1915A.
The
indisputably
u.s.c.
28
first
standard
rneri tless
legal
theory, '" or claims where the "'factual contentions are clearly
baseless.'"
1
Clay v.
Yates,
809
F.
Supp.
417,
427
(E.D.
Va.
Bivens v. Six Unknown Named Agents of the Federal Bureau
of Narcotics, 403 U.S. 388 (1971).
1992)
The
(quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)).
second standard
is
the
familiar
standard
for
a
motion to
dismiss under Fed. R. Civ. P. 12(b)(6).
"A
motion
to
sufficiency of a
dismiss
under
complaint;
Rule
12(b)(6)
importantly,
contests surrounding the facts,
applicability of defenses."
tests
it does not
the
resolve
the merits of a claim,
or the
Republican Party of N.C. 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
plaintiff.
Cir.
viewed
in
the
only
to
factual
considering
a
identifying
pleadings
conclusions,
motion
are
Ashcroft V. Iqbal,
The
most
favorable
to
the
Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th
1993); see also Martin,
applies
light
Federal
not
980 F.2d at 952.
allegations,
to
dismiss
that,
can
because
entitled
to
however,
choose
they
the
are
This principle
and
"a
to
begin
no
assumption
court
more
of
by
than
truth."
556 U.S. 662, 679 (2009).
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 Atl.
Corp.
v.
Twombly,
550 U.S.
544,
555
(2007)
(second alteration in original)
U.S.
41,
47
(1957)).
(quoting Conley v.
Plaintiffs
cannot
Gibson,
satisfy this
standard
with complaints containing only "labels and conclusions"
"formulaic
Id.
recitation
of
the
(citations omitted).
sufficient
level,"
"to
id.
"plausible
raise
a
its
"conceivable."
Id.
Instead,
right
(citation
on
elements
to
id.
a
cause
of
or a
action."
a plaintiff must allege facts
relief
omitted),
face,"
of
3 55
above
stating
at
570,
the
a
speculative
claim
rather
that
than
is
merely
"A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw
the
reasonable
inference
misconduct alleged."
that
Iqbal,
Corp. , 550 U.S. at 556) .
survive dismissal
for
the
defendant
556 U.S. at 678
is
liable
for
the
(citing Bell Atl.
In order for a claim or complaint to
failure
to state a
claim,
the plaintiff
must "allege facts sufficient to state all the elements of [his
or] her claim."
Bass v. E.I. DuPont de Nemours & Co., 324 F.3d
761, 765 (4th Cir. 2003)
F.3d 193, 213
270,
281
(4th Cir. 2002); lodice v. United States, 289 F.3d
(4th Cir. 2002)).
construes pro se
1151
(4th Cir.
and develop,
that
the
complaint.
(citing Dickson v. Microsoft Corp., 309
complaints,
1978),
sua
inmate
Lastly,
while the Court liberally
Gordon v.
Leeke,
574
F.2d 1147,
it will not act as the inmate's advocate
sponte,
failed
to
statutory and
clearly
raise
constitutional
on
the
face
claims
of
his
See Brock v. Carroll, 107 F.3d 241, 243 (4th Cir.
1997)
(Luttig, J., concurring); Beaudett v. City of Hampton, 775
F.2d 1274, 1278 (4th Cir. 1985).
II.
SUMMARY OF ALLEGATIONS
In his Complaint,
Rebecca Sue Colaw.
Mr.
Ms.
Bryant named as the sole defendant,
Colaw served as appointed counsel for
Mr. Bryant during Mr. Bryant's appeal of his criminal conviction
from this Court to the United States Court of Appeals for the
Fourth
Circuit.
(Compl.
3.)
Mr.
Bryant
contends
that
Ms.
Colaw's deficient performance deprived him of his constitutional
right to the effective assistance of counsel.
(Id.)
Mr. Bryant
(Id.at9.)
demands monetary damages.
"In order to state a viable Bivens claim, a plaintiff must
allege facts which indicate that a person acting under color of
federal
authority
right."
Williams v. Burgess, No. 3:09CV115, 2010 WL 1957105, at
*2
(E.D.
Va. May 13,
v.
Moatz,
364
deprived
F.3d
2010)
205,
him
or
her
of
a
(footnote omitted)
210
n.8
(4th
Cir.
constitutional
(citing Goldstein
2004)).
Private
attorneys and public def enders do not act under color of federal
authority
when
they
represent
defendants
See Polk Cty. v. Dodson,
proceedings.
in
454 U.S.
312,
criminal
325
(1981)
("[A] public defender does not act under color of state law when
performing
a
lawyer's
traditional
functions
defendant in a criminal proceeding.");
4
Cox v.
as
counsel
Hellerstein,
to
a
685
F.2d 1098,
1099
act
color
under
clients,
(9th Cir.
of
1982)
state
or
(holding that attorneys do not
federal
law
when
representing
and therefore relief cannot be obtained under either
section 1983 or Bivens); see Bagguley v. Cogburn, Nos.
89-7103,
1990
Accordingly,
against Ms.
WL
as Mr.
Colaw,
139323,
at
*l
(4th
Cir.
Sept.
26,
89-7102,
1990).
Bryant has failed to state a viable claim
the action will be dismissed with prejudice.
The Clerk will be directed to note the disposition of the action
for the purposes of 28 U.S.C.
The
Clerk
is
directed
§
1915(g).
to
send a
copy of
the
Memorandum
Opinion to Mr. Bryant.
1(£~
Date:
-i,f, '1Ao{7
Richmond, Virginia
/s/
/2U
Robert E. Payne
Senior United States District Judge
5
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