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Hower v. Graham

United States District Court, W.D. Michigan, Southern Division

June 22, 2017

SCOTT GRAHAM, Defendants.


          Janet T. Neff United States District Judge

         This is 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.

         Factual Allegations

         Plaintiff 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.

         Plaintiff 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.


         I. Failure to state a claim

         A 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)).

         Plaintiff 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.[1]

         In 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 second element.

         I. Defendants are not federal actors

         To 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.

         In 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.[2] 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.

         II. Plaintiff's claims are barred by ...

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