Opinion
2:02-CV-0031
May 21, 2002
MEMORANDUM OPINION AND ORDER OF DISMISSAL
Plaintiff WARREN STANDBERRY, TDCJ-ID # 1083684, acting pro se and while incarcerated as a prisoner in the Oldham County Jail, has filed suit pursuant to Title 42, United States Code, Section 1983 complaining against the above-referenced defendant and has been granted permission to proceed in forma pauperis. After filing suit, plaintiff was transferred to the custody of the Texas Department of Criminal Justice, Institutional Division.
Plaintiff complains of the representation afforded him by his attorney in connection with a criminal case. Plaintiff does not state whether defendant BRAINERD was retained or was appointed by the Court. Plaintiff does not state exactly what relief he wants the Court to grant him if he prevails.
JUDICIAL REVIEW
When a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity, the Court must evaluate the complaint and dismiss it without service of process, Ali v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990), if it is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A; 28 U.S.C. § 1915(e)(2). The same standards will support dismissal of a suit brought under any federal law by a prisoner confined in any jail, prison, or other correctional facility, where such suit concerns prison conditions. 42 U.S.C. § 1997e(c)(1). A Spears hearing need not be conducted for every pro se complaint. Wilson v. Barrientos, 926 F.2d 480, 483 n. 4 (5th Cir. 1991).
A claim is frivolous if it lacks an arguable basis in law or in fact, Booker v. Koonce, 2 F.3d 114, 115 (5th Cir. 1993); see, Denton v. Hernandez, 504 U.S. 25, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992).
Cf, Green v. McKaskle, 788 F.2d 1116, 1120 (5th Cir. 1986) ("Of course, our discussion of Spears should not be interpreted to mean that all or even most prisoner claims require or deserve a Spears hearing. A district court should be able to dismiss as frivolous a significant number of prisoner suits on the complaint alone or the complaint together with the Watson questionnaire.").
The District Judge has reviewed plaintiffs pleadings and has viewed the facts alleged by plaintiff to determine if his claim presents grounds for dismissal or should proceed to answer by defendants.
THE LAW AND ANALYSIS
Two elements are necessary for recovery in a section 1983 civil rights suit: (1) the plaintiff must show the defendant deprived him of a right secured by the Constitution and laws of the United States; (2) the plaintiff must show the deprivation was committed under color of law, usually by a state official or a private individual in conspiracy with such an official. Adickes v. Kress, 398 U.S. 144, 149, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142 (1970). If attorney BRAINERD was retained counsel, he was not acting under color of state law. Russell v. Millsap, 781 F.2d 381, 383 (5th Cir. 1985). Alternatively, assuming attorney BRAINERD was court-appointed defense counsel, this fact does not supply the requirement of state action. McCoy v. Gordon, 709 F.2d 1060, 1062 (5th Cir. 1983), cert. denied, 472 U.S. 1030, 105 S.Ct. 3507, 87 L.Ed.2d 637 (1985); United Stales ex rel Simmons v. Zibilich, 542 F.2d 259, 261 (5th Cir. 1976) (per curiam).
Accepting plaintiff's allegations as true, the facts alleged by plaintiff show there are no facts which could state a claim on which relief can be granted; and dismissal is appropriate at this stage.Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998) (dismissal of a pro se complaint for failure to state a claim without giving the plaintiff an opportunity to amend is generally error, but no error is committed if the court determines the plaintiff has alleged his best case). The facts alleged by plaintiff are clear and demonstrate that plaintiff cannot allege facts showing the defendant's actions were performed under color of state law.
CONCLUSION
For the reasons set forth above, plaintiff has failed to state a claim on which relief can be granted.
Pursuant to Title 28, United States Code, sections 1915(A) and 1915((e)(2),
IT IS HEREBY ORDERED that the Civil Rights Complaint filed pursuant to Title 42, United States Code, Section 1983, by plaintiff WARREN STANDBERRY is DISMISSED WITH PREJUDICE FOR FAILURE TO STATE A CLAIM ON WHICH RELIEF CAN BE GRANTED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
A copy of this Order shall be mailed to plaintiff and to any attorney of record by first class mail. The Clerk shall also mail copies of this Order of Dismissal to TDCJ-Office of the General Counsel, P.O. Box 13084, Austin, TX 78711; and to Claire Laric, at the U.S. District Court for the Northern District of Texas, Dallas Division.
IT IS SO ORDERED.