United States District Court, M.D. Tennessee, Nashville Division
BRYAN K. DALTON #375315, Plaintiff,
JOHN MITCHELL, III, Defendant
MEMORANDUM OPINION AND ORDER
WAVERLY D. DI CRENSHAW, JR. CHIEF UNITED STATES DISTRICT
K. Dalton, an inmate of the Rutherford County Adult Detention
Center in Murfreesboro, Tennessee, has filed this pro
se civil rights action under 42 U.S.C. § 1983 (Doc.
No. 1), along with an application to proceed in district
court without prepaying fees and costs. (Doc. No. 2.) The
case is before the Court for a ruling on the application and
for an initial review pursuant to the Prison Litigation
Reform Act (“PLRA”), 28 U.S.C. §§
1915(e)(2) and 1915A, and 42 U.S.C. § 1997e.
Application to Proceed as a Pauper
the Prison Litigation Reform Act (“PLRA”), 28
U.S.C. § 1915(a), a prisoner bringing a civil action may
be permitted to file suit without prepaying the filing fee of
$350 required by 28 U.S.C. § 1914(a). Because it is
apparent from Plaintiff's submission that he lacks the
funds to pay the entire filing fee in advance, his
application to proceed as a pauper is
to 28 U.S.C. §§ 1915(b) and 1914(a), Plaintiff is
nonetheless assessed the $350.00 civil filing fee. The
administrator of the facility in which Plaintiff is currently
housed, as custodian of Plaintiff's trust account, is
DIRECTED to submit to the Clerk of Court, as
an initial payment, the greater of: (a) 20% of the average
monthly deposits to Plaintiff's credit at the jail; or
(b) 20% of the average monthly balance to Plaintiff's
credit for the six-month period immediately preceding the
filing of the complaint. 28 U.S.C. § 1915(b)(1).
Thereafter, the custodian shall submit 20% of the
Plaintiff's preceding monthly income (or income credited
to Plaintiff for the preceding month), but only when the
balance in his account exceeds $10.00. 28 U.S.C. §
1915(b)(2). Payments shall continue until the $350.00 filing
fee has been paid in full to the Clerk of Court. 28 U.S.C.
Clerk of Court MUST send a copy of this
Order to the administrator of the Rutherford County Adult
Detention Center to ensure compliance with that portion of 28
U.S.C. § 1915 pertaining to the payment of the filing
fee. If Plaintiff is transferred from his present place of
confinement before the fee is paid in full, the custodian
must ensure that a copy of this Order follows Plaintiff to
his new place of confinement, for continued compliance with
the Order. All payments made pursuant to this Order must be
submitted to the Clerk of Court for the United States
District Court for the Middle District of Tennessee, 801
Broadway, Nashville, TN 37203.
Initial Review of the Complaint
to 28 U.S.C. § 1915(e)(2), the Court is required to
conduct an initial review of any complaint filed in forma
pauperis, and to dismiss the complaint if it is facially
frivolous or malicious, if it fails to state a claim upon
which relief may be granted, or if it seeks monetary relief
against a defendant who is immune from such relief. In
reviewing the complaint to determine whether it states a
plausible claim, “a district court must (1) view the
complaint in the light most favorable to the plaintiff and
(2) take all well-pleaded factual allegations as true.”
Tackett v. M & G Polymers, USA, LLC, 561F.3d
478, 488 (6th Cir. 2009) (citing Gunasekera v.
Irwin, 551 F.3d 461, 466 (6th Cir. 2009) (citations
omitted)). A pro se pleading must be liberally
construed and “held to less stringent standards than
formal pleadings drafted by lawyers.” Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (citing Estelle v.
Gamble, 429 U.S. 97, 106 (1976)).
seeks to vindicate alleged violations of his federal
constitutional rights under 42 U.S.C. § 1983. Section
1983 confers a private federal right of action against any
person who, acting under color of state law, deprives an
individual of any right, privilege or immunity secured by the
Constitution or federal laws. Wurzelbacher v.
Jones-Kelley, 675 F.3d 580, 583 (6th Cir. 2012). Thus,
to state a § 1983 claim, a plaintiff must allege two
elements: (1) a deprivation of rights secured by the
Constitution and laws of the United States, and (2) that
“the deprivation was caused by a person acting under
color of state law.” Tahfs v. Proctor, 316
F.3d 584, 590 (6th Cir. 2003) (citations omitted); 42 U.S.C.
complains that his defense attorney in a state criminal
proceeding denied him effective assistance of counsel,
discriminated against and defamed him, and violated
attorney-client confidentiality. (Doc. No. 1 at 5.) He seeks
$60, 000 in damages. (Id.) But the law is clear that
an attorney representing a defendant in his criminal case is
not acting under color of state law, regardless of whether he
is retained or appointed. Polk County v. Dodson, 454
U.S. 312, 325 (1981) (attorney “does not act under
color of state law when performing a lawyer's traditional
functions as counsel to a defendant in a criminal
proceeding”); Harmon v. Hamilton Cty. Court of
Common Pleas, 83 Fed.Appx. 766, 767 (6th Cir. 2003)
(“Here, the defendant attorneys did not act under color
of state law as privately retained attorneys, although the
acts alleged related to state court litigation.”);
Whisnant v. Stokes, No. 1:08-CV-229, 2008 WL
4763853, at *5 (E.D. Tenn. Oct. 28, 2008) (“[C]ourts
have uniformly held an attorney, whether appointed or
retained, whether in state court or federal court, is not
acting under color of law.”). Accordingly,
Plaintiff's complaint against his attorney fails to state
a claim under § 1983.
action is DISMISSED for failure to state a
claim upon which relief can be granted. 28 U.S.C.
§§ 1915(e)(2)(B) and 1915A. Any appeal of this
Order would not be in ...