Taylor v. Miles

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TENNESSEE

EASTERN DIVISION

MARK TAYLOR, )

)

Plaintiff, )

)

VS. ) No. 19-1257-JDT-cgc

)

JOHN MILES, )

)

Defendant. )

ORDER DISMISSING CASE,

DENYING AS MOOT MOTION TO PROCEED IN FORMA PAUPERIS,

CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH

AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

On November 4, 2019, Plaintiff Mark Taylor, who at the time of filing was

incarcerated at the Madison County Criminal Justice Complex in Jackson, Tennessee, filed

a pro se complaint pursuant to 42 U.S.C. § 1983 and a motion to proceed in forma

pauperis. (ECF Nos. 1 & 2.) After Taylor submitted the necessary documents, the Court

issued an order granting leave to proceed in forma pauperis and assessing the civil filing

fee pursuant to the Prison Litigation Reform Act (PLRA), 28 U.S.C. §§ 1915(a)-(b). (ECF

No. 8.)1 Taylor sues attorney John Miles.

1 On December 16, 2019, Taylor notified the Court that he had been released from

custody and provided his new address. (ECF No. 9.) Taylor also filed another motion to

proceed in forma pauperis on December 20, 2019, using the longer form required of non-

prisoners. (ECF No. 11.) Because this case is being dismissed, that motion is DENIED as moot.

Taylor alleges that he hired Miles to represent him in a state-court criminal matter,

in which he was charged with unlawfully possessing a firearm, vandalism, and reckless

endangerment. (ECF No. 1 at PageID 2.) Taylor paid Miles $3,500 but alleges that Miles

did nothing, and he never heard from Miles after paying him. (Id.) In an attachment to the

complaint, Taylor details some of the work Miles did as his attorney, including appearing

at his second court appearance and advising him to accept a blind plea agreement. (ECF

No. 1-1 at PageID 4-5.) Taylor asserts that Miles “never did anything to get me a plea

deal,” and Taylor was forced to represent himself at trial. (Id. at PageID 6.)

Taylor seeks $25,000 as a “full refund” from Miles’s representation and as

compensatory damages. (ECF No. 1 at PageID 3; ECF No. 1-1 at PageID 6.)

The Court is required to screen prisoner complaints and to dismiss any complaint,

or any portion thereof, if the complaintC

(1) is frivolous, malicious, or fails to state a claim upon which relief may

be granted; or

(2) seeks monetary relief from a defendant who is immune from such

relief.

28 U.S.C. § 1915A(b); see also 28 U.S.C. § 1915(e)(2)(B).

In assessing whether the complaint in this case states a claim on which relief may

be granted, the standards under Fed. R. Civ. P. 12(b)(6), as stated in Ashcroft v. Iqbal, 556

U.S. 662, 677-79 (2009), and in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57

(2007), are applied. Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). The Court

accepts the complaint’s “well-pleaded” factual allegations as true and then determines

whether the allegations “plausibly suggest an entitlement to relief.’” Williams v. Curtin,

631 F.3d 380, 383 (6th Cir. 2011) (quoting Iqbal, 556 U.S. at 681). Conclusory allegations

“are not entitled to the assumption of truth,” and legal conclusions “must be supported by

factual allegations.” Iqbal, 556 U.S. at 679. Although a complaint need only contain “a

short and plain statement of the claim showing that the pleader is entitled to relief,” Fed.

R. Civ. P. 8(a)(2), Rule 8 nevertheless requires factual allegations to make a “‘showing,’

rather than a blanket assertion, of entitlement to relief.” Twombly, 550 U.S. at 555 n.3.

“Pro se complaints are to be held ‘to less stringent standards than formal pleadings

drafted by lawyers,’ and should therefore be liberally construed.” Williams, 631 F.3d at

383 (quoting Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004)). Pro se litigants,

however, are not exempt from the requirements of the Federal Rules of Civil Procedure.

Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989); see also Brown v. Matauszak, 415 F.

App’x 608, 612, 613 (6th Cir. Jan. 31, 2011) (affirming dismissal of pro se complaint for

failure to comply with “unique pleading requirements” and stating “a court cannot ‘create

a claim which [a plaintiff] has not spelled out in his pleading’” (quoting Clark v. Nat’l

Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975))).

Taylor filed his complaint pursuant to 42 U.S.C. § 1983, which provides:

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of the United States or other

person within the jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws, shall be liable

to the party injured in an action at law, suit in equity, or other proper

proceeding for redress . . . .

To state a claim under § 1983, a plaintiff must allege two elements: (1) a deprivation of

rights secured by the “Constitution and laws” of the United States (2) committed by a

defendant acting under color of state law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150

(1970).

Taylor may not sue his attorney under § 1983. Courts have uniformly held that

private attorneys are not state actors who can be sued under § 1983. See Polk County v.

Dodson, 454 U.S. 312, 318 (1981) (“[A] lawyer representing a client is not, by virtue of

being an officer of the court, a state actor ‘under color of state law’ within the meaning of

§ 1983.”); Mulligan v. Schlachter, 389 F.2d 231, 233 (6th Cir. 1968) (private attorney who

is appointed by the court does not act under color of state law); Deas v. Potts, 547 F.2d 800

(4th Cir. 1976) (“A private attorney who is retained to represent a criminal defendant is not

acting under color of state law, and therefore is not amendable to suit under § 1983.”).2

To the extent Taylor is attempting to assert a claim of ineffective assistance of

counsel, that claim is misplaced. Claims of ineffective assistance must be brought in a

habeas petition under 28 U.S.C. § 2254 and not in an action under § 1983. See Preiser v.

Rodriguez, 411 U.S. 475, 488-90 (1973); Moran v. Sondalle, 218 F.3d 647, 650-51 (7th

Cir. 2000).

Furthermore, to the extent Taylor seeks to assert a claim of legal malpractice under

Tennessee state law, the Court declines to exercise supplemental jurisdiction under 28

U.S.C. § 1367(c)(3). The Court also does not have independent diversity jurisdiction under

2 The same analysis applies if Miles was appointed as Taylor’s public defender.

See Powers v. Hamilton Cnty. Public Defender Comm’n, 501 F.3d 592, 611 (6th Cir. 2007)

(quoting Polk Cnty., 454 U.S. at 325 (“[P]ublic defenders do not ‘act under color of state law

when performing a lawyer’s traditional functions as counsel to a defendant in a criminal

proceeding.’”)).

28 U.S.C. § 1332. Taylor does not allege that he and Defendant Miles are citizens of

different states; nor does he meet the amount in controversy requirement, as he seeks

compensation of only $25,000.

For these reasons, Taylor’s complaint must be dismissed in its entirety for failure to

state a claim on which relief may be granted.

The Sixth Circuit has held that a district court may allow a prisoner to amend his

complaint to avoid a sua sponte dismissal under the PLRA. LaFountain v. Harry, 716 F.3d

944, 951 (6th Cir. 2013); see also Brown v. R.I., 511 F. App’x 4, 5 (1st Cir. 2013)

(per curiam) (“Ordinarily, before dismissal for failure to state a claim is ordered, some form

of notice and an opportunity to cure the deficiencies in the complaint must be afforded.”).

Leave to amend is not required where a deficiency cannot be cured. Gonzalez-Gonzalez v.

United States, 257 F.3d 31, 37 (1st Cir. 2001) (“This does not mean, of course, that every

sua sponte dismissal entered without prior notice to the plaintiff automatically must be

reversed. If it is crystal clear that . . . amending the complaint would be futile, then a

sua sponte dismissal may stand.”); Curley v. Perry, 246 F.3d 1278, 1284 (10th Cir. 2001)

(“We agree with the majority view that sua sponte dismissal of a meritless complaint that

cannot be salvaged by amendment comports with due process and does not infringe the

right of access to the courts.”). In this case, the Court concludes that leave to amend is not

warranted.

In conclusion, the Court DISMISSES this case in its entirety for failure to state a

claim on which relief can be granted, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and

1915A(b)(1). Leave to amend is DENIED.

Pursuant to 28 U.S.C. § 1915(a)(3) and Federal Rule of Appellate Procedure

24(a)(3), the Court must also consider whether an appeal by Taylor in this case would be

taken in good faith. The good faith standard is an objective one. Coppedge v. United States,

369 U.S. 438, 445 (1962). It would be inconsistent for a district court to determine that a

complaint should be dismissed prior to service on the Defendants but has sufficient merit

to support an appeal in forma pauperis. See Williams v. Kullman, 722 F.2d 1048, 1050 n.1

(2d Cir. 1983). The same considerations that lead the Court to dismiss this case for failure

to state a claim also compel the conclusion that an appeal would not be taken in good faith.

Therefore, leave to appeal in forma pauperis is DENIED.

For analysis under 28 U.S.C. § 1915(g) of future filings, if any, by Taylor, this is

the second dismissal of one of his cases as frivolous or for failure to state a claim.3 This

strike shall take effect when judgment is entered. See Coleman v. Tollefson, 135 S. Ct.

1759, 1763-64 (2015).

The Clerk is directed to prepare a judgment.

IT IS SO ORDERED.

s/ James D. Todd

JAMES D. TODD

UNITED STATES DISTRICT JUDGE

3 Taylor previously filed Taylor v. State of Tenn., et al., No. 1:19-cv-1248-JDT-cgc

(W.D. Tenn. Jan. 7, 2020) (dismissed for failure to state a claim).