United States District Court, W.D. Kentucky
B. Russell, Senior Judge United States District Court
a pro se civil rights action brought by a convicted
prisoner pursuant to 42 U.S.C. § 1983. The Court has
granted Plaintiff Gregory Ryan Webb leave to proceed in
forma pauperis. This matter is before the Court for
screening pursuant to 28 U.S.C. § 1915A. For the reasons
set forth below, the action will be dismissed.
brings suit against three Defendants in this action - the
Kentucky Department of Public Advocacy (DPA); John Jefferson
Johnson, a public defender at the DPA, in both his official
and individual capacities; and Leslie Thorn, a “case
worker” at the DPA, in her official-capacity only.
Plaintiff claims that Defendant Johnson failed to represent
him fairly in a state court criminal proceeding. He accuses
Defendant Johnson of “breach of trust; breach of duty;
dishonesty, unethical behavior; misinterpretation; and false
statements of material facts.” He specifically alleges
that Defendant Johnson “lied to the Court”
concerning a cell phone warrant; waited too long to file a
motion to suppress; spent “very little time preparing a
motion for probation;” pushed Plaintiff into a plea
deal; and caused Plaintiff to lose “471 days jail
credit due to [Defendant] Johnson ‘showing'
[Plaintiff] the PSI right before court and not letting
[Plaintiff] see it.” Plaintiff concludes his complaint
by stating that Defendant Johnson was negligent and
“prevented appropriate due process.” As relief,
Plaintiff seeks compensatory and punitive damages.
August 2, 2017, Plaintiff filed an amended complaint (DN 9).
In his amended complaint, Plaintiff claims that Defendant
Johnson “did not offer [Plaintiff] a reasonable
defense” and “ignored [Plaintiff's] pleas for
help.” Plaintiff further states that he smelled alcohol
on Defendant Johnson. Finally, Plaintiff claims that
“the Court and Commonwealth's Attorney office is
somewhat aware of [Defendant] Johnson's faults but
continue to appoint him to cases which includes the Dept. of
Public Advocacy to be responsible.” Plaintiff also
requests an increase in the amount of compensatory damages he
seeks. Finally, the amended complaint contains a second
request for the appointment of an attorney.
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 601, 604 (6th Cir. 1997),
overruled on other grounds by Jones v. Bock, 594
U.S. 199 (2007). 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
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).
claims fail against each Defendant. First, Plaintiff's
claim against the DPA and his official-capacity claims
against Defendants Johnson and Thorn must be dismissed
because they are barred by the Eleventh Amendment. The Sixth
Circuit has held that “[t]he Eleventh Amendment bars
§ 1983 suits against a state, its agencies, and its
officials sued in their official capacities for
damages.” Cady v. Arenac Cty., 574 F.3d 334,
344 (6th Cir. 2009) (citing Kentucky v. Graham, 473
U.S. 159, 169 (1985)). Kentucky courts have consistently
recognized that the DPA is a state agency for Eleventh
Amendment purposes. See, e.g., Lowe v. Ky. Court
of Justice, No. 2:14-168-KKC, 2015 U.S. Dist. LEXIS
43527, at *6 (E.D. Ky. Apr. 2, 2015) (“Ky. Rev. Stat.
31.010 establishes DPA as state agency for Eleventh Amendment
purposes”) (citing Westermeyer v. Ky. Dep't of
Pub. Advocacy, No. 2:10-131-DCR, 2011 U.S. Dist. LEXIS
21629, at * 9 (E.D. Ky. Mar. 3, 2011)).
with regard to Plaintiff's claims against Defendant
Johnson in his individual capacity, it is firmly established
that a defense attorney, regardless of whether he is a public
defender or a private attorney, is not a state actor for
purposes of § 1983. 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.”); Otworth v. Vanderploeg, 61 F.
App'x 163, 165 (6th Cir. 2003) (“[A] lawyer
representing a client is not, by virtue of being an officer
of the court, a state actor under color of state law within
the meaning of § 1983.”). Thus, Plaintiff's
individual-capacity claims against Defendant Johnson must be
dismissed for failure to state a claim upon which relief may
the Court will dismiss this action by separate Order. As
such, the Court need not consider Plaintiffs second ...