United States District Court, W.D. Michigan, Southern Division
T. Neff United States District Judge
a civil action brought by a federal prisoner claiming that
his retained counsel, and then appointed counsel, in his
federal prosecution defrauded him and deprived him of his
constitutional rights. 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.
Michael David Hower is presently incarcerated in the
Cumberland Federal Correctional Institution in Cumberland,
Maryland. He is serving a sentence of 420 months following
his guilty plea, in this Court, to sexual exploitation of a
child in violation of 18 U.S.C. §2251 (a) and (c), and
receipt of child pornography in violation of 18 U.S.C. §
2252A(a)(2)(A) and (b)(1). Petitioner was represented in the
federal criminal case first by retained counsel, Defendant
Damian Nunzio, who was permitted to withdraw on June 23,
2009, United States v. Hower, No. 1:08-cr-84 (W.D.
Mich.) (Ord., ECF No. 56), and then by appointed counsel,
Defendant Scott Graham.
contends that while he was confined at the Newaygo County
Jail and the Kent County Jail pending the federal criminal
proceedings and state criminal proceedings, Defendant Nunzio
and then Defendant Graham perpetrated a fraud upon Plaintiff,
instructed Plaintiff to commit perjury, communicated false
“off-the-record” promises from the United States
Attorney regarding Plaintiff's sentence, and refused to
withdraw Plaintiff's guilty plea. Plaintiff claims that
Defendants also failed and refused to provide him copies of
the reports prepared regarding his sentence. Plaintiff asks
the Court to order Defendants to release the reports relating
to his sentence and answer Plaintiff's claims. Plaintiff
also asks the Court to order Defendant Nunzio to return his
$5, 000.00 retainer and to order both Defendants to pay the
costs of this action.
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)).
does not identify the statutory or common law foundation for
his claims. Construed liberally, the complaint alleges that
Defendants violated Plaintiff's federal constitutional
rights. Such a claim against a state actor would arise under
42 U.S.C. § 1983. Because the alleged violations
occurred in the context of a federal prosecution, however,
there is no “state actor.” Thus the statute does
not apply. See Dist. of Columbia v. Carter, 409 U.S.
418, 423-25 (1973) (“[A]ctions of the Federal
Government and its officers are at least facially exempt from
[§ 1983's] proscriptions.”). Where a person
alleges that a “federal” actor has violated his
or her federal constitutional rights, the claim arises under
the doctrine of Bivens v. Six Unknown Named Agents of
Fed. Bur. of Narcotics, 403 U.S. 388 (1971) (creating a
private right of action against individual federal officers
alleged to have violated a citizen's constitutional
rights); see also Ayon v. NE Ohio Corr. Ctr., 478 F.
App'x 999, 1000 (6th Cir. 2012) (district court properly
construed a federal prisoner's § 1983 complaint
under Bivens, 403 U.S. 388, when a federal actor
allegedly violated the prisoner's federal constitutional
rights). The Court will consider Plaintiff's allegations
as attempting to state a Bivens claim.
Bivens, 403 U.S. 388, the Supreme Court recognized
for the first time an implied private action for damages
against federal officers alleged to have violated a
citizen's constitutional rights. See Corr. Servs.
Corp. v. Malesko, 534 U.S. 61, 66 (2001). This implied
cause of action is “the federal analog to suits brought
against state officials” under 42 U.S.C. § 1983.
Hartman v. Moore, 547 U.S. 250, 254 n.2 (2006). To
state a claim that is cognizable in a Bivens action,
the plaintiff must plead two essential elements: first, that
he has been deprived of rights secured by the Constitution or
laws of the United States, and second, that the defendants
acted under color of federal law. Bivens, 403 U.S.
at 397. Plaintiff's claim falls short with respect to the
Defendants are not federal actors
properly state a Bivens claim, Plaintiff must allege
that Defendants were acting under color of federal authority.
See Bivens, 403 U.S. at 397; Mueller v.
Gallina, 137 F. App'x 847, 850 (6th Cir. 2005)
(“In order to state a cause of action under
Bivens, the plaintiff must allege facts which show
that the individual defendant acted ‘under color of
federal authority' . . . .”). Plaintiff's
suggestion that Defendants acted under federal authority is
simply wrong. To the contrary, courts have held that a
defense attorney, whether in state court or federal court, is
not acting under color of law.
Polk County v. Dodson, 454 U.S. 312 (1981), the
Supreme Court held that a public defender, although paid and
ultimately supervised by the State, does not act under color
of state law under 42 U.S.C. § 1983, the statutory
counterpart to a Bivens claim, when performing the
traditional functions of counsel to a criminal defendant in a
state proceeding. 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.”
Pagani-Gallego v. Escobedo, No. 97-1640, 1998 WL
381562, at *1 (6th Cir. June 23, 1998); see also Bradford
v. Shankman, No. 85-5150, 1985 WL 13659, *1 (6th Cir.
Aug. 12, 1985) (“[A] private attorney and a federal
public defender do not act under color of federal law for
purposes of a Bivens action.”); 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).
Plaintiff has, therefore, failed to state a Bivens
claim against Defendants, his retained and appointed counsel.
Plaintiff's claims are barred by ...