United States District Court, E.D. Louisiana
REPORT AND RECOMMENDATION
C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE.
Samuel Desilva is a prisoner currently incarcerated in the
Richmond Justice Center in Richmond, Virginia. He filed this
complaint pro se and in forma pauperis pursuant to 42 U.S.C.
§ 1983 ("Section 1983") against his former
criminal defense attorney, public defender Iona A. Renfroe.
Desilva alleges generally that he received ineffective
assistance of counsel from defendant during his Orleans
Parish criminal proceedings, which resulted in plaintiff
entering a guilty plea on January 7, 1999, and having to
register as a sex offender. Record Doc. No. 3 (Complaint at
¶ IV). He seeks monetary damages. Id.
(Complaint at ¶ V).
previously filed a petition for a writ of habeas corpus in
this court under 28 U.S.C § 2254 based on the same
criminal conviction forming the basis of his claims in this
Section 1983 action and similarly alleging ineffective
assistance of counsel, among other things. Desilva v.
Louisiana State et al., Record Doc. No. 6 at p. 5 in
Civ. Action No. 18-598 "R" (2) (E.D. La.).
Plaintiff's habeas petition was dismissed with prejudice
for lack of subject matter jurisdiction or, alternatively, as
time-barred. Id. at Record Doc. Nos. 12-14.
STANDARDS OF REVIEW
PRISONER COMPLAINT SCREENING
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 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. §
1915A(b)(1); Shakur, 391 F.3d at 113; Carr v.
Dvorin, 171 F.3d 115, 116 (2d Cir. 1999).
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)).
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, 976
F.2d at 269. A prisoner's in forma pauperis complaint
which fails to state a claim may be dismissed sua sponte at
any time under 28 U.S.C. § 1915(e)(2) and 42 U.S.C.
case, plaintiff's complaint may be dismissed under 28
U.S.C. § 1915(e) and 42 U.S.C. § 1997e(c)(1),
either as frivolous because it lacks an arguable basis in law
fails to state a claim on which relief can be granted, even
under the broadest reading.
PUBLIC DEFENDER ATTORNEYS ARE NOT STATE ACTORS
alleges that defendant Iona A. Renfroe was a public defender
who served as his defense counsel in his state court criminal
proceedings and provided ineffective assistance. Record Doc.
No. 5 (Complaint at ¶'s III(B) and IV). According to
a letter from the Louisiana Attorney Disciplinary Board,
Office of Disciplinary Counsel, which plaintiff has attached
to his complaint, Renfroe died on October 26, 2013. Record
Doc. 5-1 at p. 6.
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 the actions of Renfroe are
“fairly attributable to the state.” West v.
Atkins, 487 ...