CLARK v. HILLY

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

AMBER MARIE CLARK,

Plaintiff,

vs. Case No.: 3:24cv415/MCR/ZCB

TIMMOTHY HILLY,

Defendant.

____________________________________/

REPORT AND RECOMMENDATION

Plaintiff is proceeding pro se and in forma pauperis in this civil

rights action under 42 U.S.C. § 1983. Presently before the Court is

Plaintiff’s Complaint. (Doc. 1). The Court is statutorily required to

screen Plaintiff’s Complaint to determine whether it is frivolous,

malicious, fails to state a claim on which relief may be granted, or seeks

monetary relief from a defendant who is immune. See 28 U.S.C. §

1915(e)(2)(B) (governing in forma pauperis actions). Upon review of the

Complaint, it is apparent that this case is subject to dismissal.

I. Background

Plaintiff has named Timmothy Hilly—a lawyer working for the

Office of Criminal Conflict and Civil Regional Counsel-First District—as

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the sole Defendant in this case. (Doc. 1 at 3). Plaintiff sues Defendant

in his official capacity. (Id.). According to Plaintiff’s allegations,

Defendant represented Plaintiff at a termination of parental rights (TPR)

hearing involving Plaintiff’s children. (Id. at 4). Plaintiff “repeatedly

stated that [she] did not want a Mormon lawyer.” (Id.). Plaintiff alleges

that Defendant defended her ex-husband in court and stated that

Defendant “‘didn’t think the father had a drug problem’ despite the fact

[two] teachers [testified] to the fact [the father] showed up to school

intoxicated.” (Id. at 4-5). Plaintiff further states that Defendant “did not

even request a motion of discovery” or “allow [Plaintiff] to provide proof

of lies.” (Id. at 5).

Plaintiff claims that Defendant violated the Sixth Amendment

“right to fair trial” and “right to a lawyer” because Plaintiff lost her kids

and “had plenty of [proof] to [prove] fraud on the court with DCF.” (Id.

at 6). Plaintiff requests $3 million in damages for losing her children due

to Defendant’s neglect and asks for injunctive relief that Plaintiff’s

children be returned. (Id.).

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II. Statutory Screening Standard

To survive dismissal at the screening phase, “a complaint must

contain sufficient factual matter, accepted as true, to state a claim to

relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (internal quotation marks omitted). The plausibility standard is

met only where the facts alleged enable “the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id.

Plausibility means “more than a sheer possibility that a defendant has

acted unlawfully.” Id. “Where a complaint pleads facts that are merely

consistent with a defendant’s liability, it stops short of the line between

possibility and plausibility of entitlement to relief.” Id. (internal

quotation marks omitted).

The determination of whether a complaint states a plausible claim

for relief is “a context-specific task that requires the reviewing court to

draw on its judicial experience and common sense.” Iqbal, 556 U.S. at

679. The Court is “not bound to accept as true a legal conclusion couched

as a factual allegation.” Id. at 678 (internal quotation marks omitted).

And “bare assertions” that “amount to nothing more than a formulaic

recitation of the elements” of a claim “are conclusory and not entitled to

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be assumed true.” Id. at 681 (internal quotation marks omitted). “While

legal conclusions can provide the framework of a complaint, they must be

supported by factual allegations.” Id. at 679.

III. Discussion

As previously stated, Defendant is an attorney with the Office of

Criminal Conflict and Civil Regional Counsel.1 From Plaintiff’s

complaint, it appears that Defendant represented Plaintiff in a civil

proceeding in state court (a termination of parental rights hearing).

Section 1983 provides a remedy when a person acting under color of state

law deprives the plaintiff of a right, privilege, or immunity secured by the

U.S. Constitution or federal law. 42 U.S.C. § 1983. A plaintiff cannot

recover under § 1983 against a defendant who was not acting under color

of state law. Myers v. Bowman, 713 F.3d 1319, 1329 (11th Cir. 2013).

“[T]he Supreme Court has held that public defenders do not act under

1 The Office of Criminal Conflict and Civil Regional Counsel was created

by the state legislature “to represent indigent people accused of crimes

that the Public Defenders were unable to represent due to a conflict of

interest.” See https://rc1fl.com/ (last visited Sept. 5, 2024). The Office

“only handles cases where a judge appoints [the] Office” including civil

matters such as “termination of parental rights cases.” See

https://rc1fl.com/services/civil-cases/ (last visited Sept. 5, 2024).

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color of state law when ‘performing a lawyer’s traditional functions as

counsel to a defendant in a criminal proceeding’ and thus, they are not

liable under 42 U.S.C. § 1983.” Grider v. Cook, 522 F. App’x 544, 547

(11th Cir. 2013) (quoting Polk Cnty. v. Dodson, 454 U.S. 312, 318 (1981)).

The same principle applies to attorneys who work for the Office of

Regional Conflict Counsel. See Dwyer v. Office of Criminal Conflict

Counsel, No. 3:11cv337/MCR/CJK, 2012 WL 4758137, at *4 (N.D. Fla.

Aug. 30, 2012), adopted by, 2012 WL 4758045, at *1 (dismissing section

1983 claims against attorneys from the Office of Conflict Counsel because

they were “the functional and legal equivalency of the state public

defender” and, therefore, “did not act under color of law”); see also Wexler

v. Torres, No. 6:22cv1627, 2022 WL 16837229, at * 4 (M.D. Fla. Oct. 18,

2022), adopted by, 2022 WL 16836723, at *1 (dismissing section 1983

claims against a regional conflict attorney because the attorney was not

acting under color of law).

Here, although Defendant represented Plaintiff in a civil rather

than criminal matter, “it is well settled . . . that an attorney, whether

court-appointed or privately retained, does not qualify as a state actor for

the purposes of § 1983 liability.” Ashley v. Colohan, No. CV 109-033, 2010

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WL 322741, at *3 (S.D. Ga. Jan. 27, 2010); see also Ballard v. Watson,

No. 1:22cv128, 2023 WL 8703752, at *2-3 (N.D. Fla. Sept. 25, 2023)

(determining that an attorney with the Office of Criminal Conflict and

Civil Regional Counsel was not acting under color of state law under §

1983 while representing a plaintiff in a state court proceeding). In some

instances, “an attorney may be sued under section 1983 if he conspired

with someone who did act under color of state law,” but this exception

only applies if the plaintiff pleads “more than a general conclusory

allegation of a conspiracy.” Wahl v. McIver, 773 F.2d 1169, 1173 (11th

Cir. 1985). Because Defendant was not acting under color of state law,

he is not subject to suit under § 1983 and dismissal is warranted.

Moreover, dismissal is warranted because Plaintiff has not

plausibly alleged a violation of the Sixth Amendment. The Sixth

Amendment provides “[i]n all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an impartial jury . . .

wherein the crime shall have been committed . . . and to have the

Assistance of Counsel for his defence.” U.S. Const. amend. VI (emphasis

added). “But the Sixth Amendment does not govern civil cases.” Turner

v. Rogers, 564 U.S. 431, 441 (2011). Thus, a plaintiff cannot prevail in a

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§ 1983 based on an allegation that a defendant violated the Sixth

Amendment in a civil proceeding. See Mason v. Mobile Cnty. Cir. Clerk,

No. 23-12775, 2024 WL 1803091, at *3 (11th Cir. Apr. 25, 2024) (holding

that a § 1983 plaintiff failed to state a Sixth Amendment claim because

the Sixth Amendment does not apply to civil cases).

Here, Plaintiff claims that her Sixth Amendment rights were

violated by Defendant when he represented her during a state court child

custody proceeding. (Doc. 1 at 4-6). Plaintiff, however, advances a clearly

meritless legal theory because the Sixth Amendment does not apply to

such civil proceedings. Therefore, Plaintiff’s claims should be dismissed.2

Given the issues with Plaintiff’s allegations—especially the fact

that Defendant is not a state actor who can be sued under 42 U.S.C. §

1983—allowing leave to amend would be futile. See Sifford v. Ford, 701

2 To the extent Clark is attempting to nullify a state-court judgment

regarding her parental rights, such a claim is barred by the Rooker-

Feldman doctrine. See e.g., Fox v. Fla. Dep’t of Children and Families,

828 F. App’x 639, 642 (11th Cir. 2020) (holding the “district court properly

dismissed Fox’s federal claims for lack of subject matter jurisdiction

under the Rooker-Feldman doctrine” because a claim that “FDCF

investigator violated her Fourth and Fourteenth Amendment rights

when he removed her daughter from her home . . . would effectively

nullify the state-court judgment . . . terminating her parental rights and

stripping her of custody”).

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F. App’x 794, 796 (11th Cir. 2017) (explaining that “a district court need

not allow even a pro se plaintiff leave to amend where amendment would

be futile”). The Complaint, therefore, should be DISMISSED without

prejudice.

III. Conclusion

For the reasons above, it is respectfully RECOMMENDED that:

1. This action be DISMISSED without prejudice under 28

U.S.C. §§ 1915(e)(2)(B).

2. The Clerk of Court be directed to close this case.

At Pensacola, Florida this 10th day of September 2024.

/s/ Zachary C. Bolitho

Zachary C. Bolitho

United States Magistrate Judge

Notice to the Parties

Objections to these proposed findings and recommendations must be

filed within fourteen days of the date of the Report and Recommendation.

Any different deadline that may appear on the electronic docket is for the

Court’s internal use only and does not control. An objecting party must

serve a copy of the objections on all other parties. A party who fails to

object to the magistrate judge’s findings or recommendations contained

in a report and recommendation waives the right to challenge on appeal

the district court’s order based on unobjected-to factual and legal

conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 636.

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