United States District Court, E.D. Kentucky, Northern Division, Covington
MEMORANDUM OPINION & ORDER
William O. Bertelsman, United States District Judge
Housley is a resident of Covington, Kentucky. Proceeding
without counsel, he has filed a civil rights complaint
pursuant to 42 U.S.C. § 1983 [R. 2] and a motion to
waive payment of the filing and administrative fees. [R. 1]
The information contained in Housley's fee motion
indicates that he lacks sufficient assets or income to pay
the $350.00 filing fee. Because Housley has been granted
pauper status in this proceeding, the $50.00 administrative
fee is waived. District Court Miscellaneous Fee Schedule,
Court must conduct a preliminary review of Housley's
complaint because he has been granted pauper status. 28
U.S.C. § 1915(e)(2). A district court must dismiss any
claim that 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. Hill v.
Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). When
testing the sufficiency of Housley's complaint, the Court
affords it a forgiving construction, accepting as true all
non-conclusory factual allegations and liberally construing
its legal claims in the plaintiff's favor. Davis v.
Prison Health Servs., 679 F.3d 433, 437-38 (6th Cir.
complaint asserts a claim under 42 U.S.C. § 1983 against
Defendant Sara Henry, identified as the public defender
appointed to defend Housley in a criminal proceeding in the
Kenton Circuit Court in Kenton County, Kentucky. Housley
alleges that he was first assigned an attorney when he
initially appeared in front of the Kenton Circuit Court on a
failure to appear warrant on October 3, 2016. According to
Housley, he was unable to attend a hearing in his case on
October 5, 2016, because he had been taken to the St.
Elizabeth Medical Center for a medical emergency, although he
was represented at the hearing by a public defender. Housley
further states that, as a result of the hearing, the judge
who was assigned to the case withdrew. Housley alleges that
on October 7, 2016, he was released from the hospital and was
taken back into custody at the Kenton County Detention
Center. According to Housley, for the next month, he had
difficulty finding out the name of the public defender
assigned to his case. Once he was told it was Henry, he
alleges that he made multiple attempts to contact her, but
that she was generally nonresponsive. He then alleges that on
November 2, 2016, at the suggestion of another inmate,
Housley had his fiancée contact Henry and request that
his case be closed. He states that he was released from the
Kenton County Detention Center on November 3, 2016. [R. 2 at
complaint asserts that Henry's conduct deprived him of
his Fourteenth Amendment right to due process of the law and,
accordingly, Henry is liable to Housley pursuant to 42 U.S.C.
§ 1983. [R. 2 at ¶ 24, 26] However, Henry, acting
as Housley's public defender, is not a “state
actor” subject to liability under Section 1983.
Polk County v. Dodson, 454 U.S. 312, 324-25 (1981).
In order to prevail in a § 1983 action, the plaintiff
must show that he was deprived of a constitutional right
and that the deprivation occurred at the
hands of defendant who was a “state actor, ” or
acted under color of state law. See Gomez v. Toledo,
446 U.S. 635, 640 (1980); Searcy v. City of Dayton,
38 F.3d 282, 286 (6th Cir. 1994). However, “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.” Polk
County, 454 U.S. at 325. Because Housley's complaint
is based upon Henry's performance of these traditional
functions as counsel, Housley fails to state a claim upon
which relief can be granted against Henry under § 1983.
addition to his federal § 1983 claim, Housley also
alleges that Henry's conduct “did violate her own
policy, procedures, codes and customs under the Model Rules
of Professional Conduct Rule 1.4(a) 1, 3, 4, and 5(b) and
Rule 8.4(a).” [R. 2 at ¶ 25] The relevant rules
applicable to an attorney practicing in Kentucky are the
Kentucky Supreme Court's Rules of Professional Conduct.
See generally Martello v. Santana, 874 F.Supp.2d
658, 669-670 (E.D. Ky. 2012), aff'd, 713 F.3d
309 (6th Cir. 2013) (recognizing that the power to regulate
attorney discipline in Kentucky lies solely with the Supreme
Court of Kentucky, pursuant to which it has enacted the
Kentucky Rules of Professional Conduct). Thus, to the extent
that Housley alleges that Henry violated these rules, this
claim would be based on state law, not federal law.
district court may “decline to exercise supplemental
jurisdiction over a claim [if] the district court has
dismissed all claims over which it has original jurisdiction
...” 28 U.S.C. § 1367(c)(3). Where, as here, the
Court has dismissed all of the plaintiff's federal claims
prior to service of process, the Court concludes that the
balance of judicial economy, convenience, fairness, and
comity all point toward declining supplemental jurisdiction.
Carnegie-Mellon University v. Cohill, 484 U.S. 343
(1988); Musson Theatrical, Inc. v. Federal Exp.
Corp., 89 F.3d 1244, 1255 (6th Cir. 1996) (noting that
“[i]f the court dismisses plaintiff's federal
claims pursuant to Rule 12(b)(1), then supplemental
jurisdiction can never exist”, and that “[a]fter
a 12(b)(6) dismissal, there is a strong presumption in favor
of dismissing supplemental claims.”). The Court will
therefore dismiss the plaintiff's state law claims
IT IS ORDERED that:
Housley's motion to waive payment of the filing and
administrative fees [R. 1] is GRANTED and
payment of these fees is WAIVED.
the extent that Housley's Complaint [R. 2] alleges claims
against Henry arising under federal law, including 42 U.S.C.
§ 1983 and the United States Constitution, such claims
are DISMISSED WITH PREJUDICE.
remaining claims of Housley's Complaint [R. 2] are
DISMISSED WITHOUT PREJUDICE.
Court will enter an appropriate judgment.
matter is STRICKEN ...