United States District Court, W.D. Kentucky, Louisville Division
J. Hale, Judge United States District Court.
Derrick D'Keith Akins filed the instant pro se
42 U.S.C. § 1983 action proceeding in forma
pauperis. This matter is now before the Court on initial
review of the action pursuant to 28 U.S.C. § 1915A. Upon
review, for the reasons set forth herein, the Court will
dismiss the action.
SUMMARY OF ALLEGATIONS
is a pre-trial detainee at the Louisville Metro Department of
Corrections. He sues Nathanael Yeno Miller in his individual
capacity. He identifies Defendant as a public defender in
Louisville, Kentucky. He states that he believes that his
“constitutional rights to have fair and proper counsel
was and has been violated.” He maintains that Defendant
“refused to work on my case after being presented with
information that detective Omar Lee lied and gave false
testimony on a suppression hearing.” Plaintiff further
states that Defendant “told me that he would not prosue
any motion on my behalf that there was nothing which could be
done. Stating all my concerns where nothing more than
triveal.” He reports that Defendant told him that he
did not care if he filed a RCr 11.42 motion asserting
ineffective assistance of counsel “due to Mr. Miller
failure to follow-up on pro se motion which I had filed with
the courts on behalf of myself. In fact he told me that he
did in any shape form of fashion care if there was a ruling
or if the judge ruled on my motions.”
relief, Plaintiff seeks compensatory and punitive damages.
prisoner initiates a civil action seeking redress from a
governmental entity, officer, or employee, the trial court
must review the complaint and dismiss the complaint, or any
portion of it, if the court determines that the complaint 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
601, 604 (6th Cir. 1997), overruled on other grounds by
Jones v. Bock, 549 U.S. 199 (2007). When determining
whether a plaintiff has stated a claim upon which relief can
be granted, the court must construe the complaint in a light
most favorable to the plaintiff and accept all of the factual
allegations as true. Prater v. City of Burnside,
Ky., 289 F.3d 417, 424 (6th Cir. 2002).
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)). “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.” Id. (citing Twombly, 550
U.S. at 556). “[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, 561 F.3d
478, 488 (6th Cir. 2009) (citing Gunasekera v.
Irwin, 551 F.3d 461, 466 (6th Cir. 2009) (citations
omitted)). “But the district court need not accept a
‘bare assertion of legal conclusions.'”
Tackett, 561 F.3d at 488 (quoting Columbia
Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1109 (6th
this Court recognizes that pro se pleadings are to
be held to a less stringent standard than formal pleadings
drafted by lawyers, Haines v. Kerner, 404 U.S. 519,
520-21 (1972); Jourdan v. Jabe, 951 F.2d 108, 110
(6th Cir. 1991), “[o]ur duty to be ‘less
stringent' with pro se complaints does not require us to
conjure up unpled allegations.” McDonald v.
Hall, 610 F.2d 16, 19 (1st Cir. 1979) (citation
omitted). And this Court is not required to create a claim
for 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 a cause of action against any person who, under
color of state law, causes the deprivation of a right secured
by the Constitution or the laws of the United States. A claim
under § 1983 must therefore allege two elements: (1) the
deprivation of federal statutory or constitutional rights (2)
committed by a person acting under color of state law.
West v. Atkins, 487 U.S. 42, 48 (1988); Flint v.
Ky. Dep't of Corr., 270 F.3d 340, 351 (6th Cir.
2001). Absent either element, no § 1983 claim exists.
Christy v. Randlett, 932 F.2d 502, 504 (6th Cir.
fails to state a claim under § 1983. Public defenders
are not liable to suit under § 1983 because public
defenders do not act under color of state law when
representing indigent clients in criminal proceedings.
Polk Cty. v. Dodson, 454 U.S. 312, 325 (1981)
(“[A] public defender does not act under color of state
law when performing a lawyer's traditional functions as
counsel to a defendant in a criminal proceeding.”).