United States District Court, W.D. Kentucky, Louisville Division
AUSTIN C. WHITE, Plaintiff,
CHRIS B. THURMAN, Defendant.
J. HALE, JUDGE
a civil rights action brought by a pro se pretrial
detainee pursuant to 42 U.S.C. § 1983. The Court has
granted Plaintiff Austin C. White leave to proceed in
forma pauperis. This matter is before the Court for
screening pursuant to 28 U.S.C. § 1915A and McGore
v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997),
overruled on other grounds by Jones v. Bock, 549
U.S. 199 (2007). For the reasons set forth below, the action
will be dismissed.
names his public defender, Chris Thurman, as the sole
Defendant in this action. Plaintiff claims that Defendant
Thurman has violated his rights to “due process and a
fair trial.” Plaintiff specifically alleges that
Defendant Thurman has refused to move for the suppression of
evidence which Plaintiff believes should be suppressed and
has “refused to file for any relief on
[Plaintiff's] behalf.” As relief, Plaintiff asks
the Court to remove Defendant Thurman from his criminal case
and seeks punitive damages.
Plaintiff is a prisoner seeking relief against governmental
entities, officers, and/or employees, this Court must review
the instant action under 28 U.S.C. § 1915A. Under §
1915A, the trial court must review the complaint and dismiss
the complaint, or any portion of the complaint, if the court
determines that it is frivolous or malicious, fails to state
a claim upon which relief may be granted, or seeks monetary
relief from a defendant who is immune from such relief.
See § 1915A(b)(1), (2); McGore v.
Wrigglesworth, 114 F.3d at 604. In order to survive
dismissal for failure to state a claim, “a complaint
must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)).
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, 561 F.3d 478, 488 (6th Cir. 2009)
(citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th
Cir. 2009) (citations omitted)). “[A] pro se
complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94
(2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106
(1976)). However, while liberal, this standard of review does
require more than the bare assertion of legal conclusions.
See Columbia Nat. Res., Inc. v. Tatum, 58
F.3d 1101, 1109 (6th Cir. 1995). The court's duty
“does not require [it] to conjure up unpled
allegations, ” McDonald v. Hall, 610 F.2d 16,
19 (1st Cir. 1979), or to create a claim for a plaintiff.
Clark v. Nat'l Travelers Life Ins. Co.,
518 F.2d 1167, 1169 (6th Cir. 1975). To command otherwise
would require the court “to explore exhaustively all
potential claims of a pro se plaintiff, [and] would
also transform the district court from its legitimate
advisory role to the improper role of an advocate seeking out
the strongest arguments and most successful strategies for a
party.” Beaudett v. City of Hampton, 775 F.2d
1274, 1278 (4th Cir. 1985).
1983 creates no substantive rights, but merely provides
remedies for deprivations of rights established
elsewhere.” Flint ex rel. Flint v. Ky. Dep't of
Corr., 270 F.3d 340, 351 (6th Cir. 2001). Two elements
are required to state a claim under § 1983. Gomez v.
Toledo, 446 U.S. 635 (1980). “[A] plaintiff must
allege the violation of a right secured by the Constitution
and laws of the United States, and must show that the alleged
deprivation was committed by a person acting under color of
state law.” West v. Atkins, 487 U.S. 42, 48
(1988). “Absent either element, a section 1983 claim
will not lie.” Christy v. Randlett, 932 F.2d
502, 504 (6th Cir. 1991).
Supreme Court has held that public defenders do not act under
color of state law when performing a lawyer's traditional
functions as counsel to a defendant in criminal proceedings.
Polk Cty. v. Dodson, 454 U.S. 312 (1981). Thus,
federal courts have consistently held that § 1983
actions against public defenders seeking their removal from
criminal proceedings must be dismissed for failure to state a
claim upon which relief may be granted. See, e.g.,
Arroyo v. Kaul, 277 F. App'x 806 (10th Cir.
2008) (affirming the district court's dismissal of an
action seeking removal of the public defender from the
plaintiff's criminal case because public defenders are
not state officers); Ifill v. Weiler, No.
14-605-GMS, 2014 U.S. Dist. LEXIS 133996, at *3-4 (D.C. Del.
Sept. 23, 2014) (dismissing a § 1983 action where the
plaintiff sought removal of his public defender from his
criminal case and damages based upon the public
defender's alleged ineffective assistance of counsel);
Canales v. Moran, No. 06-4158 (RMB), 2006 U.S. Dist.
LEXIS 67446 (D.N.J. Sept. 20, 2006) (dismissing a § 1983
action seeking removal of a public defender and damages based
upon allegations that the public defender ...