United States District Court, W.D. Michigan, Northern Division
J. QUIST UNITED STATES DISTRICT JUDGE.
a civil rights action brought by a state prisoner pursuant to
42 U.S.C. § 1983. The Court has granted Plaintiff leave
to proceed in forma pauperis. Under the Prison
Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321
(1996), the Court is required to dismiss any prisoner action
brought under federal law if the complaint is frivolous,
malicious, fails to state a claim upon which relief can be
granted, or seeks monetary relief from a defendant immune
from such relief. 28 U.S.C. §§ 1915(e)(2), 1915A;
42 U.S.C. § 1997e(c). The Court must read
Plaintiff's pro se complaint indulgently,
see Haines v. Kerner, 404 U.S. 519, 520 (1972), and
accept Plaintiff's allegations as true, unless they are
clearly irrational or wholly incredible. Denton v.
Hernandez, 504 U.S. 25, 33 (1992). Applying these
standards, Plaintiff's action will be dismissed for
failure to state a claim.
Eric Dexter Welch, a federal prisoner currently confined at
the United States Penitentiary in Marion, Illinois, filed
this pro se civil action against attorney Mark L.
Dobias. Plaintiff states that he is filing this lawsuit as
“either a Bivens action, a 42 U.S.C. §
1983 action, or both.” Plaintiff states that Defendant
represented him during his federal criminal trial, which
resulted in a 2010 conviction. Plaintiff complains that
Defendant's representation violated his First Amendment
right of access to the courts, his Fourteenth Amendment right
to due process, and his right under state law. Plaintiff
seeks declaratory and injunctive relief, as well as
I. Failure to state a claim
complaint may be dismissed for failure to state a claim if it
fails “‘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) (quoting Conley v. Gibson, 355
U.S. 41, 47 (1957)). While a complaint need not contain
detailed factual allegations, a plaintiff's allegations
must include more than labels and conclusions.
Twombly, 550 U.S. at 555; Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”). The
court must determine whether the complaint contains
“enough facts to state a claim to relief that is
plausible on its face.” 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.” Iqbal, 556 U.S.
at 679. Although the plausibility standard is not equivalent
to a “‘probability requirement, ' . . . it
asks for more than a sheer possibility that a defendant has
acted unlawfully.” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 556). “[W]here
the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has
alleged - but it has not ‘show[n]' - that the
pleader is entitled to relief.” Iqbal, 556
U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2)); see also Hill
v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (holding
that the Twombly/Iqbal plausibility standard applies
to dismissals of prisoner cases on initial review under 28
U.S.C. §§ 1915A(b)(1) and 1915(e)(2)(B)(i)).
state a claim under 42 U.S.C. § 1983, a plaintiff must
allege the violation of a right secured by the federal
Constitution or laws and must show that the deprivation was
committed by a person acting under color of state law.
West v. Atkins, 487 U.S. 42, 48 (1988);
Dominguez v. Corr. Med. Servs., 555 F.3d 543, 549
(6th Cir. 2009). Because § 1983 is a method for
vindicating federal rights, not a source of substantive
rights itself, the first step in an action under § 1983
is to identify the specific constitutional right allegedly
infringed. Albright v. Oliver, 510 U.S. 266, 271
noted above, Plaintiff claims that his complaint is
“either a Bivens action, a 42 U.S.C. § 1983
action, or both.” However, to prevail on a Section 1983
claim, Plaintiff must establish that a person acting under
color of state law deprived him of a right secured by the
Constitution or the laws of the United States. Searcy v.
City of Dayton, 38 F.3d 282, 286 (6th Cir. 1994).
Similarly, in order to prevail on a Bivens claim,
Plaintiff must show that a person acting under color of
federal authority deprived him of his constitutional rights.
Mueller v. Gallina, 137 Fed. App'x 847, 850 (6th
Cir. 2005) (citing Browning v. Clinton, 292 F.3d
235, 250 (D.C. Cir. 2002)).
in this case is a private attorney who represented Plaintiff
during his federal criminal proceedings. Plaintiff claims
that Defendant was ineffective in his defense of Plaintiff in
his federal criminal case. Federal courts have uniformly held
that a criminal defense attorney is not acting under color of
law in either state or federal court, whether appointed or
The United States Supreme Court has held “a public
defender does not act under color of state law when
performing a lawyer's traditional function as counsel to
a defendant in a criminal proceeding.” West v.
Atkins, 487 U.S. 42, 49, 108 S.Ct. 2250, 101 L.Ed.2d 40
(1988), (quoting Polk County v. Dodson, 454 U.S.
312, 325, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981)). This rule is
applicable to court appointed counsel, as well as retained
private attorneys. See White v. Robertson-Deming, 9
Fed.Appx. 418, 419 (6th Cir. May 16, 2001), available
in 2001 WL 549211 (noting court-appointed defense
counsel is not state actor for purpose of § 1983);
James v. Mann, 234 F.3d 1268 (6th Cir.2000),
available at 2000 WL 1679505, *2 (citing Catz v.
Chalker, 142 F.3d 279, 189 (6th Cir.1998) (concluding
retained attorney is not a person acting under color of state
law and, thus is not subject to § 1983 suit)); Deas
v. Potts, 547 F.2d 800 (4th Cir.1976) (“A private
attorney who is retained to represent a criminal defendant is
not acting under color of state law, and therefore is not
amendable to suit under § 1983.”); United
States ex rel. Simmons v. Zibilich, 542 F.2d 259 (5th
Cir.1976) (A court-appointed defense attorney acting in a
criminal case does not act under color of state law because
no state action exists.); Mulligan v. Schlachter,
389 F.2d 231, 233 (6th Cir.1968) (A private attorney does not
act under color of state law despite the fact he has been
appointed by the court). Similarly, an attorney is not
transformed into a federal official for purposes of a
Bivens action merely because he is appointed by a
federal court pursuant to federal law. See Cox v.
Hellerstein, 685 F.2d 1098, 1099 (9th Cir.1982);
Christian v. Crawford, 907 F.2d 808, 810 (8th
Cir.1990) (“[A]ttorneys are not transformed into
federal officials for purposes of Bivens action
merely because they are appointed by a federal court pursuant
to a federal law”); Haley v. Walker, 751 F.2d
284, 285 (8th Cir.1984) (attorney appointed by federal court
is not a federal officer for purposes of a
“A criminal lawyer's professional and ethical
obligations require him to act in a role independent of and
in opposition to the State[ ] ... and when representing an
indigent defendant in a state criminal proceeding ... the
public defender does not act under color of state law for
purposes of § 1983 because ‘he is not acting on
behalf of the State; he is the State's adversary.'
” West v. Atkins, 487 U.S. at 50 (quoting
Polk County v. Dodson, 454 U.S. at 322 n. 13). The
same holds true for a criminal lawyer appointed by the
government to represent an indigent defendant in a federal
criminal proceeding. See Christian v. Crawford, 907
F.2d at 810.
Beasley v. Poole, 2011 WL 2689347, at *7-8 (E.D.
Tenn. July 11, 2011).
it is clear that the named Defendant in this case was not
acting under color of law and may not be sued pursuant to 42
U.S.C. § 1983 or Bivens. ...