Holbrook v. Cabell County Public Defender's Office et al

Filing 4

MEMORANDUM OPINION AND ORDER directing the Plaintiff to amend his complaint within forty-five (45) days of the date of this Order and cure the various deficiencies in the pleading as indicated herein; advising the Plaintiff of the "three strikes" rule and of his obligation as a pro se plaintiff to promptly advise the Clerk of Court of any changes in his address. Signed by Magistrate Judge Cheryl A. Eifert on 4/21/2016. (cc: Plaintiff) (jsa)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
SHANE STEPHEN HOLBROOK,
Plaintiff,
v.

Case No. 3:16-cv-03774

CABELL COUNTY PUBLIC DEFENDER’S
OFFICE; and KIM CARICO,
Defendants.

MEMORANDUM OPINION AND ORDER
Pending before the Court is Plaintiff’s Application to Proceed Without Prepayment
of Fees and Costs (ECF No. 1) and a Complaint filed pursuant to 42 U.S.C. § 1983. (ECF
No. 2). In keeping with 28 U.S.C. § 1915(e)(2), the undersigned has conducted a
preliminary review of Plaintiff’s complaint to determine if the action is frivolous, fails to
state a claim upon which relief may be granted, or seeks monetary relief from a defendant
who is immune from such relief. Although pro se complaints, such as the one filed in this
case, must be liberally construed to allow the development of potentially meritorious
claims, the court may not rewrite the pleading to include claims that were never
presented, Parker v. Champion, 148 F.3d 1219, 1222 (10th Cir. 1998), develop the
plaintiff’s legal theories for him, Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993),
or “conjure up questions never squarely presented” to the court. Beaudett v. City of
Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). At the same time, to achieve justice, the
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court may allow a pro se plaintiff the opportunity to amend his complaint in order to
correct deficiencies in the pleading. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978).
Plaintiff’s complaint alleges the following:
1.
Kim Carico, a Cabell County Public Defender, waived Plaintiff’s preliminary
hearing in a criminal case without his consent and against his interest.
2.
The Cabell County Public Defender’s Office negligently trained, supervised,
retained, and maintained Kim Carico, and failed to check for a conflict of interest.
(ECF No. 2 at 4-5). Plaintiff seeks $750,000 in compensatory and punitive damages, as
well as other non-monetary relief. (Id. at 5).
In order for the undersigned to complete a preliminary review of the merits of the
complaint and rule on the motion to proceed in forma pauperis, Plaintiff is ORDERED
to amend his complaint within forty-five (45) days of the date of this Order and cure
the various deficiencies in pleading as indicated below:
1.

Kim Carico apparently is a public defender who represented Plaintiff in

connection with a preliminary hearing. The law is well-settled that defense attorneys,
even those appointed pursuant to a state’s criminal procedure, do not “act under color of
state law when performing a lawyer's traditional functions as counsel to a defendant in a
criminal proceeding.” Polk County v. Dodson, 454 U.S. 312, 325, 102 S.Ct. 445, 70
L.Ed.2d 509 (1981). Consequently, they generally are not subject to suit under 42 U.S.C.
§ 1983. Id.; see, also, Deas v. Potts, 547 F.2d 800 (4th Cir. 1976). One exception to this
rule is on the rare occasion when a defense attorney conspires with state officials to
deprive his or her client of federal constitutional rights. Tower v. Glover, 467 U.S. 914,
919–920, 104 S.Ct. 2820, 81 L.Ed.2d 758 (1984). Plaintiff has not stated any allegations
in the complaint that would suggestion conspiratorial misconduct on the part of Ms.
Carico. The waiver of a preliminary hearing is not uncommon and is often a strategic
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decision made by qualified and competent criminal defense counsel. However, if Plaintiff
has evidence that Ms. Carico engaged in a conspiracy with state officials to deprive
Plaintiff of his constitutional rights, then he should include factual allegations
establishing the conspiracy in an amended complaint. Plaintiff is reminded that the
amended complaint must be verified under penalty of perjury.
2. Cabell County, including its offices, is a municipality. A municipality cannot be
held liable under § 1983 solely because it employs a person who allegedly violated the
plaintiff’s constitutional rights. Monell v. Dep’t of Social Services, 436 U.S. 658, 98 S.Ct.
2018, 56 L.Ed.2d 611 (1978). On the other hand, a municipality can be held liable under §
1983 for failing to properly train and supervise its employees when “the failure to train
[and supervise] amounts to deliberate indifference to the rights of persons with whom
[the employees] come in contact.” City of Canton v. Harris, 489 U.S. 378, 387, 109 S.Ct.
1197, 103 L.Ed.2d 412 (1989). However, merely stating that the municipality failed to train
and supervise its employees is not enough to state a prima facie cause of action. Dwares
v. City of New York, 985 F.2d 94, 100 (2d Cir. 1993). Instead, to succeed on such a claim,
“[a] plaintiff must identify a particular deficiency ... and prove the deficiency was the
cause of the constitutional injury. It is not enough to establish that a particular [employee]
was inadequately trained, or that there was a negligent administration of an otherwise
adequate program, or that the conduct resulting in the injury could have been avoided by
more or better training.” Gausvik v. Perez, 239 F. Supp. 2d 1047, 1053-54 (E.D. Wash.
2002). In the complaint, Plaintiff includes no factual allegations tending to show
deficiencies in training and supervision. Statements of dissatisfaction with Ms. Carico’s
representation are insufficient to state a § 1983 claim against the Cabell County Public
Defender’s Office. Plaintiff shall amend the complaint to include factual allegations
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demonstrating either “a failure to train officials in a specific area where there is an obvious
need for training in order to avoid violations of citizens' constitutional rights”, or “a
pattern of unconstitutional conduct [that] is so pervasive as to imply actual or
constructive knowledge of the conduct by the policy makers whose deliberate indifference
to the unconstitutional practice is evidenced by failure to correct the situation when the
need for the training becomes obvious.” Id.
Plaintiff is hereby given notice that a failure to amend the complaint as
ordered may result in a recommendation that the complaint be dismissed for
failure to state a claim compensable at law. Plaintiff’s Application to Proceed
Without Prepayment of Fees and Costs shall be held in abeyance pending initial review of
Plaintiff’s amended complaint, or pending other further proceedings in this case.
Plaintiff is also advised that 28 U.S.C. § 1915 governs actions in which a
prisoner seeks to proceed without prepayment of fees or costs (“in forma pauperis”).
Section 1915(g) of the statute includes a “three strikes” rule, stating as follows:
In no event shall a prisoner bring a civil action or appeal a judgment in a
civil action or proceeding under this section if the prisoner has, on 3 or more
occasions, while incarcerated or detained in any facility, brought an action
or appeal in a court of the United States that was dismissed on the grounds
that it is frivolous, malicious, fails to state a claim upon which relief may be
granted, unless the prisoner is under imminent danger of serious physical
injury.
According to the Court’s docket, Plaintiff has now filed four pro se lawsuits in this Court
in the past two weeks, and in all four, he has requested to proceed without prepayment of
fees or costs. If three of these cases are dismissed for any of the reasons set forth above,
Plaintiff shall be barred from filing any other cases in forma pauperis unless he is in
imminent danger of serious physical injury. Therefore, Plaintiff may wish to carefully
review the four cases he has filed and determine whether he wishes to proceed with all
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four actions. Plaintiff is advised that the United States District Court should not be treated
as a receptacle for his daily grievances with the state court system and his correctional
facility, and he is required to exhaust his administrative remedies before proceeding to
this forum. If Plaintiff wishes to voluntarily dismiss any of the pending actions, he shall
file a motion for voluntary dismissal with the Clerk of Court.
Plaintiff is reminded of his obligation as a pro se plaintiff to promptly advise the
Clerk of Court of any changes in his address.
The Clerk is directed to mail a copy of this Order to Plaintiff.
ENTERED: April 21, 2016

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