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Camacho v. Hughes

United States District Court, W.D. North Carolina

May 30, 2018

ISHMAEL M. CAMACHO, Plaintiff,
v.
STAPLES HUGHES, et al., Defendants.

          ORDER

          Frank D. Whitney, Chief United States District Judge

         THIS MATTER is before the Court upon initial review of Plaintiff Ishmael M. Camacho's pro se civil Complaint pursuant to 42 U.S.C. § 1983. (Doc. No. 1.) Also before the Court is Plaintiff's Motion to Compel, titled "Plaintiff's First Request for Production of Documents." (Doc. No. 6.)

         I.BACKGROUND

         Plaintiff is a prisoner of the State of North Carolina. He filed this Complaint on October 10, 2017, naming Staples Hughes, identified as the former director of the North Carolina Appellate Defender's Office, Glen Gerding, identified as Director of the North Carolina Appellate Defender's Office, and W. David Lee, identified as the Senior Resident Superior Court Judge for the 20th Judicial District of North Carolina, as Defendants in this action. (Compl. 1-2, Doc. No. 1.)

         According to the Complaint and exhibits attached thereto, Plaintiff pled guilty on November 18, 2013, in Union County Superior Court, to six counts of taking indecent liberties with a child. Defendant Lee was the presiding judge, and after entering judgment, he appointed the Office of the Appellate Defender of North Carolina to represent Plaintiff on direct appeal. (Jan. 15, 2014 Let. to Def. Lee 15, Doc. No. 1.) Defendant Hughes, the Appellate Defender at that time, declined the appointment after determining that Plaintiff had no right to file a direct appeal, and, thus, no right to appointed appellate counsel. (Id.) The Court assumes that, thereafter, Defendant Lee did not appoint Plaintiff alternate appellate counsel.

         On September 27, 2017, Plaintiff wrote Defendant Gerding, the Appellate Defender at the time, pointing out an error in the information Defendant Hughes provided both Defendant Lee and Plaintiff regarding the sentences Defendant Lee had imposed. (Oct. 2, 2017 Let. To Pl. 11, Doc. No. 1.) While acknowledging the error, Defendant Gerding reinforced Defendant Hughes' ultimate conclusion that Plaintiff did not have a right to a direct appeal. (Id.)

         Plaintiff filed the instant § 1983 Complaint, claiming Defendants deprived him of the right to counsel on direct appeal. He contends he had the right to a direct appeal and attributes Defendants' refusal to appoint appellate counsel or accept appointment as appellate counsel to bias, although he alleges no facts to support his assertion of bias. Plaintiff seeks monetary damages and declaratory relief with respect to each Defendant. He also seeks injunctive relief in the form of an order requiring the current Appellate Defender, whomever that may be, to “appoint counsel to undue [sic] the infringement that [has] been done to Plaintiff.” (Compl. 9.)

         II. STANDARD OF REVIEW

         Because Plaintiff is proceeding in forma pauperis, [1] the Court must review the Complaint to determine whether it is subject to dismissal on the grounds that it is “frivolous, ” “malicious, ” “fails to state a claim on which relief may be granted, ” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). In its frivolity review, the Court must determine whether the Complaint raises an “indisputably meritless legal theory, ” Denton v. Hernandez, 504 U.S. 25, 32 (1992), or is founded upon clearly baseless factual contentions, such as “fantastic or delusional scenarios, ” Neitzke v. Williams, 490 U.S. 319, 327-28 (1989).

         A complaint should not be dismissed for failure to state a claim “unless ‘after accepting all well-pleaded allegations in the plaintiff's complaint as true and drawing all reasonable factual inferences from those facts in the plaintiff's favor, it appears certain that the plaintiff cannot prove any set of facts in support of his claim entitling him to relief.'” Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999)). While a pro se complaint must be construed liberally, see Haines v. Kerner, 404 U.S. 519, 520 (1972), the liberal construction requirement will not permit a district court to ignore a plaintiff's clear failure to allege facts which set forth a claim that is cognizable under federal law, see Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).

         III. DISCUSSION

         Plaintiff's Complaint is subject to dismissal on several grounds. First, “[t]o state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). A public defender does not act under color of state law, which is a jurisdictional requirement for any civil action brought under 42 U.S.C. § 1983. See Polk County v. Dodson, 454 U.S. 312, 317-24 nn. 8-16 (1981) (public defender); Georgia v. McCollum, 505 U.S. 42, 53 n.9 (1992) (public defender); Hall v. Quillen, 631 F.2d 1154, 1155-56 nn. 2-3 (4th Cir. 1980) (court-appointed attorney); Deas v. Potts, 547 F.2d 800 (4th Cir. 1976) (per curiam) (private attorney). As appellate public defenders, Defendants Hughes and Gerding, did not operate under the color of state law when they declined to appoint appellate counsel for Plaintiff. Therefore, they are not subject to suit under § 1983.

         Even if Hughes and Gerding did operate under the color of state law, however, Plaintiff's claim for damages against them, and against Defendant Lee, must be dismissed under the Supreme Court's holding in Heck v. Humphry, 512 U.S. 477 (1994). In Heck, the Supreme Court held that,

in order to recover damages for alleged unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Thus, when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction has already been invalidated. But if the district ...

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