Khatib v. Carroll

Filing 5

ORDER DISMISSING CASE signed by Judge Rudolph T. Randa on 6/18/2014. Action DISMISSED pursuant to 28 USC § 1915A(b)(1) for failure to state a claim. Clerk of Court to document that this inmate has brought action that was dismissed for failure to state a claim under 28 USC § 1915A(b)(1) and has incurred a "strike" under 28 USC § 1915(g). The Court certifies any appeal from this matter would not be taken in good faith pursuant to 28 USC § 1915A(a)(3) unless plaintiff offers bonafide arguments supporting his appeal. (cc: Kamel Khatib at Outagamie County Jail, Corey F. Finkelmeyer, Asst. Atty General)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

KAMEL M. KHATIB,
Plaintiff,

-vs-

Case No.

14-CV-0270

JOHN MILLER CARROLL,
Defendant.

DECISION AND ORDER

The plaintiff, who is incarcerated at the Brown Co unty Jail, filed a pro se civil
rights complaint under 42 U.S.C. § 1983, alleging that his civil rights were violated. He has
paid the full filing fee.
Regardless of the plaintiff’s fee status, the Court is required to screen
complaints brought by prisoners seeking relief against a governmental entity or officer or
employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a
complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or
malicious," that fail to state a claim upon which relief may be granted, or that seek monetary
relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b).
To state a cognizable claim under the federal notice pleading system, the
plaintiff is required to provide a “short and plain statement of the claim showing that [he] is

entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). It is not necessary for the plaintiff to plead
specific facts and his statement need only “give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, a complaint that
offers “labels and conclusions” or “formulaic recitation of the elements of a cause of action
will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at
555). To state a claim, a complaint must contain sufficient factual matter, accepted as true,
“that is plausible on its face.” Id. (quoting Twombly, 550 U.S. at 570). “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 for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556). The complaint allegations “must be enough to raise a right to
relief above the speculative level.” Twombly, 550 U.S. at 555 (citation omitted).
In considering whether a complaint states a claim, courts should follow the
principles set forth in Twombly by first, “identifying pleadings that, because they are no more
than conclusions, are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679. Legal
conclusions must be supported by factual allegations. Id. If there are well-pleaded factual
allegations, the court must, second, “assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.” Id.
To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege that:
1) he was deprived of a right secured by the Constitution or laws of the United States; and

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2) the deprivation was visited upon him by a person or persons acting under color of state
law. Buchanan-Moore v. County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing
Kramer v. Village of North Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see also Gomez
v. Toledo, 446 U.S. 635, 640 (1980). The court is obliged to give the plaintiff’s pro se
allegations, “however inartfully pleaded,” a liberal construction. See Erickson v. Pardus, 551
U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
In his sworn complaint, the plaintiff sets forth claims against his criminal
defense attorney, John M. Carroll. Carroll represented the plaintiff in several cases, and the
plaintiff is unhappy with Carroll’s behavior, the outcome of those cases, and the sums of
money he paid to Carroll. However, criminal defense attorneys cannot be sued under 42
U.S.C. § 1983 because they do not qualify as a “state actor.” Polk County v. Dodson, 454
U.S. 312, 318 (1981). Even an appointed public defender does not act under color of state
law. Id. Here, where Carroll was privately retained, there is no question. He was not acting
under the color of law in his representation of the plaintiff. As a result, the plaintiff’s claims
under § 1983 fail and the Court lacks subject matter jurisdiction over the plaintiff’s claims
against Kostich. It also appears that the plaintiff and Carroll are both residents of Wisconsin,
so there is not federal jurisdiction to hear this matter under the diversity statute. See 28
U.S.C. § 1332; Hart v. FedEx Ground Package Sys. Inc., 457 F.3d 675, 676 (7th Cir. 2006).
IT IS THEREFORE ORDERED that this action is DISMISSED pursuant
to 28 U.S.C. § 1915A(b)(1) for failure to state a claim.

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IT IS FURTHER ORDERED that the Clerk of Court document that this
inmate has brought an action that was dismissed for failure to state a claim under 28 U.S.C.
§1915A(b)(1).
IT IS FURTHER ORDERED that the Clerk of Court document that this
inmate has incurred a "strike" under 28 U.S.C. §1915(g).
IT IS FURTHER ORDERED that the Clerk of Court enter judgment
accordingly.
IT IS ALSO ORDERED that copies of this order be sent to the Brown County
Sheriff and to Corey F. Finkelmeyer, Assistant Attorney General, Wisconsin Department of
Justice, P.O. Box 7857, Madison, Wisconsin, 53707-7857.
I FURTHER CERTIFY that any appeal from this matter would not be taken
in good faith pursuant to 28 U.S.C. § 1915(a)(3) unless the plaintiff offers bonafide
arguments supporting his appeal.
Dated at Milwaukee, Wisconsin, this 18th day of June, 2014.
SO ORDERED,

HON. RUDOLPH T. RANDA
U. S. District Judge

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