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Cormier v. Howie

United States District Court, W.D. Louisiana, Lafayette Division

October 11, 2017

JEAN CLAYTON CORMIER
v.
GLEN E. HOWIE, ET AL

         SECTION P

          REPORT AND RECOMMENDATION

          CAROL B. WHITEHURST UNITED STATES MAGISTRATE JUDGE

         Pro se 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 frivolous.

         Statement of the Case

         Plaintiff, 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.

         Law and Analysis

         1. Screening

         Plaintiff 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.

         A 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 (2009).

         2. State Actors

         Plaintiff 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 (1988)(emphasis supplied).

         Criminal 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 (1989).

         Conclusion and Recommendation

         Therefore, IT IS RECOMMENDED that plaintiff's civil rights complaint be DISMISSED WITH PREJUDICE as frivolous pursuant to the provisions of 28 U.S.C. ยง 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 ...


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