United States District Court, M.D. Tennessee, Nashville Division
DARRELL W. BUMPAS Plaintiff,
JON DAVID ROGERS, et al. Defendants.
MEMORANDUM AND ORDER
A. TRAUGER, UNITED STATES DISTRICT JUDGE
Court has before it a pro se prisoner complaint
(Docket Entry No. 1) under 42 U.S.C. § 1983 and an
application to proceed in forma pauperis (Docket Entry No.
plaintiff is an inmate at the Northwest Correctional Complex
in Tiptonville, Tennessee. It appears from the application
that the plaintiff lacks sufficient financial resources from
which to pay the fee required to file the complaint.
Accordingly, the application is GRANTED. The Clerk shall file
the complaint in forma pauperis. 28 U.S.C. § 1915(a).
plaintiff is herewith ASSESSED the civil filing fee of
$350.00. Pursuant to 28 U.S.C. § 1915(b)(1)(A) and (B),
the custodian of the plaintiff's inmate trust account at
the institution where he now resides is directed to submit to
the Clerk of Court, as an initial partial payment, whichever
is greater of:
(a) twenty percent (20%) of the average monthly deposits to
the plaintiff's inmate trust account;
(b) twenty percent (20%) of the average monthly balance in
the plaintiff's inmate trust account for the prior six
the custodian shall submit twenty percent (20%) of the
plaintiff's preceding monthly income (or income credited
to the plaintiff's trust account for the preceding
month), but only when such monthly income exceeds ten dollars
($10.00), until the full filing fee of three hundred fifty
dollars ($350.00) as authorized under 28 U.S.C. §
1914(a) has been paid to the Clerk of Court. 28 U.S.C. §
December 1, 2014, the plaintiff hired Bernard McEvoy, a
Nashville attorney, to represent him in a criminal matter.
Docket Entry No. 1 at 6. Before trial, McEvoy withdrew from
the case and refused to refund any of the plaintiff's
retainer. Id. Eventually, the plaintiff replaced
McEvoy with Jon Rogers, an attorney from Hendersonville.
Id. at 7.
a bench trial, the plaintiff was found guilty of forgery,
theft, criminal simulation and identity theft (2 counts).
Id. at 9. The plaintiff asked Rogers to withdraw but
Rogers would neither withdraw nor refund part of his
retainer. Id. The plaintiff is dissatisfied with the
legal representation he received from McEvoy and Rogers and
has named both as defendants. He claims that McEvoy assisted
the district attorney “in working out a conviction
against me.” Id. at 6. The plaintiff also
claims that Rogers assisted the prosecutor “to work out
a conviction(s) against me by just not defending me, or my
rights.” Id. at 11.
establish a claim for § 1983 relief, the plaintiff must
plead and prove that the defendants, while acting under color
of state law, deprived him of a right or privilege guaranteed
by the Constitution or laws of the United States. Parratt
v. Taylor, 451 U.S. 527, 535 (1981).
well settled that attorneys, even those appointed by the
courts, do not act “under color of state law”
within the meaning of § 1983 when representing a client.
Polk County v. Dodson, 454 U.S. 312, 325 (1981);
Mulligan v. Schlachter, 389 F.2d 231, 233
(6th Cir.1968). Counsel, however, are viewed as
acting “under color of state law” when they are
engaged in a conspiracy with state officials to deprive
another of his federal rights. Tower v. Glover, 467
U.S. 914, 920 (1984).
regard, the plaintiff has alleged that the defendants
“assisted” the prosecutor in obtaining his
convictions. That is sufficient to state a colorable claim
for relief if the plaintiff has offered factual allegations
from which the Court could infer the existence of an actual
conspiracy between the defendants and the prosecutor. A
conspiracy, though, must be pled with specificity; vague and
conclusory allegations that not are supported with material
facts are not sufficient to state a § 1983 claim.
Farhat v. Jopke, 370 F.3d 580, 599 (6th
are no such allegations in the complaint from which the Court
could infer an actual conspiracy between the defendants and
the prosecutor. The plaintiff, therefore, has failed to state
a claim against the defendants. In the absence of an
actionable claim, the Court is obliged to DISMISS the instant
action sua sponte. 28 U.S.C. § 1915(e)(2).
appeal of the judgment rendered herein would not be taken in
good faith. Coppedge v. United States, 369 U.S. 438,
445-446 (1962). Therefore, the plaintiff is NOT certified to
pursue an appeal of ...