United States District Court, W.D. Louisiana, Lafayette Division
REPORT AND RECOMMENDATION
B. WHITEHURST UNITED STATES MAGISTRATE JUDGE
plaintiff Jean Clayton Cormier, proceeding in forma
pauperis, filed the instant civil rights complaint
pursuant to 42 U.S.C. §1983 on August 28, 2017.
Plaintiff is incarcerated at the Acadia Parish Jail, Crowley,
LA. He sues public defender Glen E. Howie and his supervisor,
G. Paul Marx, claiming he was sexually harassed by Howie and
that Marx did not respond to plaintiff's complaint
regarding the situation. He seeks injunctive relief. This
matter has been referred to the undersigned for review,
report, and recommendation in accordance with the provisions
of 28 U.S.C. §636 and the standing orders of the Court.
For the following reasons it is recommended that the
complaint be DISMISSED WITH PREJUDICE as
of the Case
presumably a pre-trial detainee, is incarcerated at Acadia
Parish Prison. He alleges that during a meeting with his
court appointed attorney, Glen E. Howie, before a September
15, 2016 court hearing, Howie touched his inner thigh. He
lodged a formal complaint with Howie's boss, G. Paul
Marx, who never responded to same. He also alleges that Howie
admitted to the touching in open court and said that he would
contact the public defender's office and request he be
removed from the case. Plaintiff asserts that he was then
deprived of counsel for five months.
is a prisoner who has been permitted to proceed in forma
pauperis. As a prisoner seeking redress from an officer
or employee of a governmental entity, his complaint is
subject to preliminary screening pursuant to 28 U.S.C. §
1915A. See Martin v. Scott, 156 F.3d 578, 579-80
(5th Cir.1998) (per curiam). Because he is
proceeding in forma pauperis, his complaint is also
subject to screening under § 1915(e)(2). Both §
1915(e)(2) (B) and § 1915A(b) provide for sua
sponte dismissal of the complaint, or any portion
thereof, if the Court finds it is frivolous or malicious, if
it fails to state a claim upon which relief may be granted,
or if it seeks monetary relief against a defendant who is
immune from such relief.
complaint is frivolous when it “lacks an arguable basis
either in law or in fact.” Neitzke v.
Williams, 490 U.S. 319, 325 (1989). A claim lacks an
arguable basis in law when it is “based on an
indisputably meritless legal theory.” Id. at
327. A complaint fails to state a claim upon which relief may
be granted when it fails to plead “enough facts to
state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007); accord Ashcroft v. Iqbal, 556 U.S. 662, 678
seeks relief pursuant to 42 U.S.C. §1983.
“[Section] 1983 is not itself a source of substantive
rights; it merely provides a method for vindicating federal
rights conferred elsewhere.” Olabisiomotosho v.
City of Houston, 185 F.3d 521, 525 n. 3 (5th Cir.1999).
“To state a claim under § 1983, 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, 108 S.Ct. 2250, 101 L.Ed.2d 40
defense attorneys, whether retained or court-appointed, are
not “state actors” and therefore cannot be sued
for civil rights violations under 42 U.S.C. § 1983. See
Polk County v. Dodson, 454 U.S. 312, 324-25, 102
S.Ct. 445, 453, 70 L.Ed.2d 509 (1981); Mills v. Criminal
Dist. Court No. 3, 837 F.2d 677, 679 (5th Cir. 1988)
(“[P]rivate attorneys, even court-appointed attorneys,
are not official state actors, and generally are not subject
to suit under section 1983.”). Consequently,
plaintiff's claim against both defendants lacks an
arguable basis in law and is frivolous. Neitzke v.
Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338
IT IS RECOMMENDED that plaintiff's civil
rights complaint be DISMISSED WITH PREJUDICE
as frivolous pursuant to the provisions of 28 U.S.C. §
1915(e)(2). Under the provisions of 28 U.S.C. Section
636(b)(1)(C) and Rule 72(b), parties aggrieved by this
recommendation have fourteen (14) days from service of this
report and recommendation to file specific, written
objections with the Clerk of Court. A party may respond to
another party's objections ...