Bryant Jr. v. Colaw, No. 3:2017cv00459 - Document 9 (E.D. Va. 2017)

Court Description: MEMORANDUM OPINION. SEE OPINION FOR COMPLETE DETAILS. Signed by District Judge Robert E. Payne on 12/28/2017. Copy of Memorandum Opinion mailed to Plaintiff.(ccol, ) Modified on 12/29/2017 (ccol, ).

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Bryant Jr. v. Colaw Doc. 9 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division DEC 2 9 2017 JOHN A. BRYANT, JR., CLERK. U.S. Plaintiff, COUR1 RICHMOl·lD. VA Civil Action No. 3:17CV459 v. REBECCA SUE COLAW, Defendant. MEMORANDUM OPINION John A. Bryant, forma pauperis, before §§ the a has federal inmate proceeding pro se and in filed Court for this Bivens'" action. evaluation The matter is pursuant to U.S. c. 28 1915 (e) (2) and 1915A. I. PRELIMINARY REVIEW Pursuant to the Prison Litigation Reform Act ( "PLRA") this Court must dismiss any action filed by a prisoner if the Court determines the action (1) a relief § claim on 1915(e) (2); includes which see claims 28 based "is frivolous" or U.S.C. upon may § '''an be (2) "fails to state granted." 1915A. The indisputably u.s.c. 28 first standard rneri tless legal theory, '" or claims where the "'factual contentions are clearly baseless.'" Clay v. Yates, 809 F. Supp. 417, 427 (E.D. Va. 1 Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). Dockets.Justia.com 1992) The (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)). second standard is the familiar standard for a motion to dismiss under Fed. R. Civ. P. 12(b)(6). "A motion to sufficiency of a dismiss under complaint; Rule 12(b)(6) importantly, contests surrounding the facts, applicability of defenses." tests it does not the resolve the merits of a claim, or the Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (1990)). In considering a motion to dismiss for failure to state a claim, a plaintiff's well-pleaded allegations are taken as true and the complaint is plaintiff. Cir. viewed in the only to factual considering a identifying pleadings conclusions, motion are Ashcroft V. Iqbal, The most favorable to the Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th 1993); see also Martin, applies light Federal not 980 F.2d at 952. allegations, to dismiss that, can because entitled to however, choose they the are This principle and "a to begin no assumption court more of by than truth." 556 U.S. 662, 679 (2009). Rules of Civil Procedure "require[ ] only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to »give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (second alteration in original) U.S. 41, 47 (1957)). (quoting Conley v. Plaintiffs cannot Gibson, satisfy this standard with complaints containing only "labels and conclusions" "formulaic Id. recitation of the (citations omitted). sufficient level," "to id. "plausible raise a its "conceivable." Id. Instead, right (citation on elements to id. a cause of or a action." a plaintiff must allege facts relief omitted), face," of 3 55 above stating at 570, the a speculative claim rather that than is merely "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference misconduct alleged." that Iqbal, Corp. , 550 U.S. at 556) . survive dismissal for the defendant 556 U.S. at 678 is liable for the (citing Bell Atl. In order for a claim or complaint to failure to state a claim, the plaintiff must "allege facts sufficient to state all the elements of [his or] her claim." Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003) F.3d 193, 213 270, 281 (4th Cir. 2002); lodice v. United States, 289 F.3d (4th Cir. 2002)). construes pro se 1151 (4th Cir. and develop, that the complaint. (citing Dickson v. Microsoft Corp., 309 complaints, 1978), sua inmate Lastly, while the Court liberally Gordon v. Leeke, 574 F.2d 1147, it will not act as the inmate's advocate sponte, failed to statutory and clearly raise constitutional on the face claims of his See Brock v. Carroll, 107 F.3d 241, 243 (4th Cir. 1997) (Luttig, J., concurring); Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). II. SUMMARY OF ALLEGATIONS In his Complaint, Rebecca Sue Colaw. Mr. Ms. Bryant named as the sole defendant, Colaw served as appointed counsel for Mr. Bryant during Mr. Bryant's appeal of his criminal conviction from this Court to the United States Court of Appeals for the Fourth Circuit. (Compl. 3.) Mr. Bryant contends that Ms. Colaw's deficient performance deprived him of his constitutional right to the effective assistance of counsel. (Id.) Mr. Bryant (Id.at9.) demands monetary damages. "In order to state a viable Bivens claim, a plaintiff must allege facts which indicate that a person acting under color of federal authority right." Williams v. Burgess, No. 3:09CV115, 2010 WL 1957105, at *2 (E.D. Va. May 13, v. Moatz, 364 deprived F.3d 2010) 205, him or her of a (footnote omitted) 210 n.8 (4th Cir. constitutional (citing Goldstein 2004)). Private attorneys and public def enders do not act under color of federal authority when they represent defendants See Polk Cty. v. Dodson, proceedings. in 454 U.S. 312, criminal 325 (1981) ("[A] public defender does not act under color of state law when performing a lawyer's traditional functions defendant in a criminal proceeding."); 4 Cox v. as counsel Hellerstein, to a 685 F.2d 1098, 1099 act color under clients, (9th Cir. of 1982) state or (holding that attorneys do not federal law when representing and therefore relief cannot be obtained under either section 1983 or Bivens); see Bagguley v. Cogburn, Nos. 89-7103, 1990 Accordingly, against Ms. WL as Mr. Colaw, 139323, at *l (4th Cir. Sept. 26, 89-7102, 1990). Bryant has failed to state a viable claim the action will be dismissed with prejudice. The Clerk will be directed to note the disposition of the action for the purposes of 28 U.S.C. The Clerk is directed § 1915(g). to send a copy of the Memorandum Opinion to Mr. Bryant. Date: -i,f, '1Ao{7 Richmond, Virginia /s/ /2U Robert E. Payne Senior United States District Judge 5

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