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Fifi v. Regan

United States District Court, E.D. Louisiana

October 22, 2014

WAYNE FIFI, ET AL.,
v.
MARTIN E. REGAN, JR. AND ASSOCIATES, Section

REPORT AND RECOMMENDATION

JOSEPH C. WILKINSON, Jr., Magistrate Judge.

Plaintiffs Wayne Fifi, a prisoner, and Mary Ann Brown filed the captioned suit pro se and in forma pauperis against Martin E. Regan, Jr. and Associates ("Regan"), a private New Orleans law firm. The original complaint, Record Doc. No. 1, alleged that "Brown, for and on behalf of... Fifi entered into a contract for professional legal services" with Regan to represent Fifi in criminal proceedings against him in the 24th Judicial District court for Jefferson Parish. Specifically, plaintiffs alleged that Regan failed timely to enroll as Fifi's counsel in his direct appeal to supplement a brief that had been filed by appointed counsel, and that the appeal was decided before he tried to enroll. The original complaint asserted three state law causes of action: (a) breach of contract, (b) legal malpractice and (c) fraud.

Fifi alone - without naming Brown - then filed a new submission on a "Form to be Used by a Prisoner in Filing a Complaint Under the Civil Rights Act, 42 U.S.C. § 1983." The form, which the court has treated as an amended complaint, noted that Fifi had been moved from his former place of incarceration, the River Bend Correction Center in Lake Providence, Louisiana, to the Nelson Coleman Correctional Center in Killona, Louisiana. The new filing reiterated the same three state law claims asserted in the original complaint and added an allegation of violation of Fifi's constitutional rights based on Regan's "ineffective assistant (sic) of counsel." Record Doc. No. 4 at p. 4, ¶ IV.

The relief sections of Fifi's submissions seek compensatory damages of $11, 500.00, which Fifi and/or Brown allegedly paid to Regan for expected legal services, plus additional unspecified damages for "mental stress, pain and suffering, " together with costs and attorney's fees. Record Doc. Nos. 1 at p. 5 and 4 at p. 5, ¶ V.

Fifi subsequently submitted a letter to the Clerk dated June 26, 2014, advising the court that "Ms. Mary Ann Brown is a friend that was trying to help me with this problem but now that my savings has ran (sic) out and I am unable to pay anymore lawyers, Ms. Brown is limited to what she can do to help me, and the inmate lawyer that filed my papers (sic) work had Ms. Brown['s] name on the claim of demand. I am requesting that the court remove Ms. Mary Ann Brown['s] name off of this claim...." Record Doc. No. 6. Brown has never submitted a pauper application or paid the filing fee in this matter.

ANALYSIS

I. STANDARDS OF REVIEW

A prisoner's pro se complaint for alleged civil rights violations must be screened by the court as soon as practicable after docketing, regardless whether it has also been filed in forma pauperis. 28 U.S.C. § 1915A(a); Lewis v. Estes , 242 F.3d 375, 2000 WL 1673382, at *1 (8th Cir. 2006); Shakur v. Selsky , 391 F.3d 106, 112 (2d Cir. 2004); Martin v. Scott , 156 F.3d 578, 579-80 (5th Cir. 1998). Such complaints by prisoners and by others proceeding in forma pauperis must be dismissed upon review if they are frivolous or fail to state a claim upon which relief can be granted. 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1); Shakur , 391 F.3d at 113; Carr v. Dvorin , 171 F.3d 115, 116 (2d Cir. 1999).

"A federal court may dismiss a claim in forma pauperis if satisfied that the action is frivolous or malicious.'" Moore v. McDonald , 30 F.3d 616, 620 (5th Cir. 1994) (quoting former 28 U.S.C. § 1915(d), now incorporated in 28 U.S.C. § 1915(e), as amended). A complaint is frivolous "if it lacks an arguable basis in law or fact." Davis v. Scott , 157 F.3d 1003, 1005 (5th Cir. 1998); Reeves v. Collins , 27 F.3d 174, 176 (5th Cir. 1994). The law "accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless.'" Macias v. Raul A. (Unknown), Badge No. 153 , 23 F.3d 94, 97 (5th Cir. 1994) (quoting Neitzke v. Williams , 490 U.S. 319, 327 (1989)).

"A complaint lacks an arguable basis in law if it is based on an indisputably meritless legal theory, such as if the complaint alleges the violation of a legal interest which clearly does not exist.'" Davis , 157 F.3d at 1005 (quoting McCormick v. Stalder , 105 F.3d 1059, 1061 (5th Cir. 1997)). "When a complaint raises an arguable question of law which the district court ultimately finds is correctly resolved against the plaintiff, dismissal under Rule 12(b)(6) is appropriate; however, dismissal under the section 1915(d) standard is not." Moore v. Mabus , 976 F.2d 268, 269 (5th Cir. 1992). An in forma pauperis complaint which is legally frivolous, fails to state a claim or seeks monetary relief against a defendant who is immune from such relief may be dismissed sua sponte at any time under 28 U.S.C. § 1915(e)(2).

In this case, plaintiffs' complaint must be dismissed, either under 28 U.S.C. § 1915(e) as legally frivolous because it lacks an arguable basis in law, or under Rule 12(b)(6), because it fails to state a cognizable Section 1983 claim under the broadest reading.[1] In addition, no other valid basis for federal jurisdiction has been stated in this complaint, so that the state law claims must be dismissed without prejudice to be pursued in state court if Fifi desires to do so.

II. DEFENDANT IS NOT A STATE ACTOR

Fifi is a prisoner who appears to be asserting, at least in part, claims alleging violation of his constitutional rights using a form provided to prisoners for asserting civil rights claims under 42 U.S.C. § 1983. He asserts no claims concerning the conditions of his confinement or against any individual state officers acting as his custodians or in any other capacity. Instead, Fifi's claims against defendant Martin E. Regan, Jr. and Associates are based on his allegations that Regan provided Fifi with ineffective assistance of counsel in his legal representation in state court criminal proceedings against Fifi.

To be successful under Section 1983, a plaintiff must establish that a defendant has acted under color of state law in violating his rights. Daniels v. Williams , 474 U.S. 327 (1986). To state a claim under Section 1983, a plaintiff must show (1) deprivation of a right, privilege or immunity secured by the federal laws or Constitution (2) by one acting under color of state law. James v. Texas Collin County , 535 F.3d 365, 373 (5th Cir. 2008); Calhoun v. Hargrove , 312 F.3d 730, 734 (5th Cir. 2002); Mississippi Women's Med. Clinic v. McMillan , 866 F.2d 788, 791 (5th Cir. 1989). Thus, plaintiff must show that Regan's actions are "fairly attributable to the state." West v. Atkins , 487 U.S. 42, 49 ...


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