Case Information
*1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY AT BOWLING GREEN JASON DEAN BORDEN PLAINTIFF v. CIVIL ACTION NO. 1:09CV-P94-M GREGORY BERRY DEFENDANT
MEMORANDUM OPINION
Plaintiff, Jason Dean Borden, proceeding pro se and in forma pauperis , filed this complaint pursuant to 42 U.S.C. § 1983 (DN 1). This matter is before the Court for screening pursuant to 28 U.S.C. § 1915A and McGore v. Wrigglesworth , 114 F.3d 601 (6th Cir. 1997). For the reasons set forth below, the action will be dismissed.
I.
Plaintiff sues attorney Gregory Berry for refusing to withdraw as his attorney in state- court criminal proceedings against Plaintiff. Plaintiff alleges that Defendant Berry had a conflict of interest as his counsel based on state and federal suits filed against him by Plaintiff. Plaintiff requests monetary and injunctive relief.
II.
When a prisoner initiates a civil action seeking redress from a governmental entity, officer, or employee, the trial court must review the complaint and dismiss the action, if the court determines that it is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. See 28 U.S.C. §§ 1915A(b)(1) and (2). A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams , 490 U.S. 319, 325 (1989). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Id. at 327. While a reviewing court must liberally *2 construe pro se pleadings, Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam), to avoid dismissal, a complaint must include “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570 (2007).
Plaintiff does not state a claim against Defendant Berry under 42 U.S.C. § 1983. Public defenders are not liable to suit under § 1983 because public defenders do not act under color of state law when representing indigent clients in criminal proceedings. Polk County v. Dodson , 454 U.S. 312, 325 (1981) (“[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.”); see also White v. Robertson-Deming , 9 F. App’x 418, 419-20 (6th Cir. 2001). Thus, Plaintiff’s allegations against Defendant Berry fail to state a cognizable § 1983 claim, and dismissal for this reason is appropriate. The Court will, by separate Order, dismiss the instant action for failure to state a claim.
Date:
cc: Plaintiff, pro se
Defendant
4413.009
2