United States District Court, W.D. Arkansas, Fayetteville Division
OPINION AND ORDER
TIMOTHY L. BROOKS, UNITED STAGES DISTRICT JUDGE.
a civil rights case filed by the Plaintiff, Charles Ray
Smith, under the provisions of 42 U.S.C. § 1983. Smith
proceeds pro se and has filed a Motion (ECF No. 2)
to Proceed In Forma Pauperis (IFP). He is
incarcerated in the Cummins Unit of the Arkansas Department
of Correction (ADC).
Prison Litigation Reform Act (PLRA) modified the IFP statute,
28 U.S.C. § 1915, to require the Court to screen
complaints for dismissal under § 1915(e)(2)(B). The
Court must dismiss a complaint, or any portion of it, if it
contains claims that: (a) are frivolous or malicious; (b)
fail to state a claim upon which relief may be granted; or,
(c) seek monetary relief from a defendant who is immune from
such relief. 28 U.S.C. § 1915(e)(2)(B).
to the allegations of the Complaint, on April 24, 2017 Smith
signed a plea agreement on state criminal charges based on
the representation by his public defender, . Scott McElveen,
that his state sentence would run concurrently with his
federal sentence. (ECF No. 1, p. 3). Smith alleges McElveen
advised him that he would not have to serve any time in the
ADC, but Smith indicates he is currently serving a 20-year
sentence in the ADC. (ECF No. 1, p. 4).
contends his "confession" was coerced and his
privilege against self-incrimination was violated. (ECF No.
1, pp. 4-5). He also contends he was denied the right of
appeal. Specifically, Smith states he wrote to McElveen
asking him about filing a petition under Rule 37 of the
Arkansas Rules of Criminal Procedure. Initially, McElveen did
not even respond to the letter; however, after Smith asked
the attorney who was representing him on the federal charges
to intervene, McElveen did respond but again assured Smith he
had nothing to worry about because the state sentence would
run concurrently with the federal sentence. (ECF No. 1, p.
6). Smith contends McElveen was incompetent. (ECF No. 1, p.
relief, Smith seeks monetary compensation in the amount of
$1, 000, 000.00 and his ADC sentence reduced to time served.
noted above, under the PLRA, the Court is obligated to screen
a case prior to service of process being issued. A claim is
frivolous when it "lacks an arguable basis either in law
or fact." Neltzke v. Williams, 490 U.S. 319,
325 (1989). A claim fails to state a claim upon which relief
may be granted if it does not allege "enough facts to
state a claim to relief that is plausible on its face."
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007). The Court bears in mind, however, that when
"evaluating whether a pro se plaintiff has
asserted sufficient facts to state a claim, we hold 'a
pro se complaint, however inartfully pleaded, ... to
less stringent standards than formal pleadings drafted by
lawyers.'" Jackson v. Nixon, 747 F.3d 537,
541 (8th Cir. 2014) (quoting Erickson v. Pardus, 551
U.S. 89, 94 (2007)).
case is subject to dismissal. Section 1983 provides a federal
cause of action for the deprivation, under color of law, of a
citizen's "rights, privileges, or immunities secured
by the Constitution and laws" of the United States. In
order to state a claim under 42 U.S.C. § 1983, a
plaintiff must allege that the defendant acted under color of
state law and that he violated a right secured by the
Constitution. West v. Atkins, 487 U.S. 42 (1988);
Dunham v. Wadley, 195 F.3d 1007, 1009 (8th
Polk County v. Dodson, 454 U.S. 312, 325 (1981), the
Supreme Court held that a public defender does not act under
color of state law when performing a lawyer's traditional
functions as counsel to indigent defendants in state criminal
proceedings. Thus, when the claim is merely that the public
defender failed to adequately represent the client in his
criminal proceedings, it does not state a cognizable claim
under § 1983. See also Gilbert v. Corcoran, 530
F.2d 820 (8th Cir. 1976) (conclusory allegations of
ineffective assistance of counsel do not state a claim
against public defenders under § 1983).
Complaint fails to state a cognizable claim under § 1983
and is frivolous. Therefore, it is DISMISSED WITH
PREJUDICE. See 28 U.S.C. §
1915(e)(2)(B)(i)-(ii) (IFP action may be
dismissed at any time due to frivolousness or for failure to
state a claim).