United States District Court, E.D. Arkansas, Western Division
Procedure for Filing Objections:
following Recommended Disposition
(“Recommendation”) has been sent to Judge Susan
Webber Wright. Mr. Traylor may file written objections with
the Clerk of Court within fourteen (14) days of filing this
Recommendation. Objections must be specific and must include
the factual or legal basis for the objection. An objection to
a factual finding must identify the finding of fact believed
to be wrong and describe the evidence that supports that
objections are filed, Judge Wright can adopt this
Recommendation without independently reviewing the record. By
not objecting, Mr. Traylor may also waive any right to appeal
questions of fact.
Emanuel Traylor, in custody at the Pulaski County Detention
Center, filed this complaint under 42 U.S.C. § 1983.
(Docket entry #2) Mr. Traylor requested that he be allowed to
proceed in forma pauperis. (#1) The Court granted
that request and ordered that Mr. Traylor pay the $350.00
filing fee for a civil rights action in monthly installments
to be collected from his prison account. (#4)
Traylor sued Public Defenders Leslie Borgognoni, Andrew
Thornton, and Harrison Tome. (#2, at pp. 1-2) He alleges that
Defendants refused, pursuant to policy, to give him a copy of
the evidence to be used against him in a criminal case. (#2,
at p. 4) Mr. Traylor alleges that Defendants are violating
his rights under the Fifth, Sixth, and Fourteenth Amendments
by not providing him the documents he requested. (#2, at p.
4) As relief, Mr. Traylor wants to receive a copy of the
discovery in his criminal case, and asks that the policy
pursuant to which Defendants denied his request be stricken.
(#2, at p. 5).
docketing the complaint, or as soon thereafter as
practicable, a prisoner's complaint must be reviewed to
identify whether the prisoner has stated claims for relief.
Claims must be dismissed if they: (1) are frivolous or
malicious; (2) fail to state a claim upon which relief may be
granted; or (3) seek monetary relief against a defendant who
is immune from paying damages. See 28 U.S.C. § 1915A.
Although the Rules require that a complaint include only a
short, plain statement showing that the pleader is entitled
to relief, the factual allegations must raise the right to
relief above the speculative level. See Fed.R.Civ.P. 8(a)(2);
Bell Atlantic Corporation v. Twombly, 550 U.S. 544,
555 (2007) (“a plaintiff's obligation to provide
the ‘grounds' of his ‘entitle[ment]to
relief' requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do....”). While construed liberally, a pro
se complaint must contain enough facts to state a claim
to relief that is plausible on its face, not merely
conceivable. Martin v. Sargent, 780 F .2d 1334, 1337
Court recommends dismissal of this lawsuit because Mr.
Traylor has not stated a federal claim for relief. To state a
constitutional claim under § 1983, Mr. Traylor must
allege facts showing that one or more of the Defendants
deprived him of a federally protected right while acting
under color of state law. West v. Atkins, 487
U.S. 42, 48 (1988). Here, none of the Defendants was acting
under color of law. Each Defendant in this case is a public
defender; and defense attorneys in criminal cases, whether
appointed or retained, are not deemed state actors. See
Polk Cty. v. Dodson, 454 U.S. 312, 318 (1981);
Chambers v. Kaplan, 648 F.2d 1193, 1194 (8th Cir.
subject to a claim under § 1983, “a private actor
must be a ‘willful participant in joint activity with
the State in denying plaintiff's constitutional
rights.” Magee v. Trustees of Hamline University,
Minn., 747 F.3d 532, 536 (8th Cir. 2014) (quoting
Dossett v. First Bank, 399 F.3d 940, 947 (8th Cir.
2005)). This means that Mr. Traylor's complaint would
have to allege “at the very least, that there was a
mutual understanding, or a meeting of the minds, between the
private party and state actor.'” Pendleton v.
St. Louis County, 178 F.3d 1007, 1011 (8th Cir. 1999)
(internal citation omitted). Here, Mr. Traylor has not
alleged any facts indicating that Defendants were willful
participants in joint activity with state actors.
Accordingly, Defendants are not subject to suit under §
1983, and Mr. Traylor's claims should be dismissed
Court recommends that Judge Wright DISMISS Emanuel
Traylor's complaint (#2), without prejudice, based on his
failure to state a federal claim. Furthermore, the dismissal
should count as a “strike” for purposes of 28
U.S.C. § 1915(g). The Court further recommends that
Judge Wright certify, pursuant to 28 U.S.C. §
1915(a)(3), that an in forma pauperis ...