Smith v. Jackson et al

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
*
DAVID LEE SMITH, 	*
*
Plaintiff, 	*
*
vs. 	* 	CIVIL ACTION 22-00124-CG-B
*
HEATH JACKSON, et al., 	*
*
Defendants. 	*
REPORT AND RECOMMENDATION
Plaintiff David Lee Smith, an Alabama jail inmate proceeding
pro 	se 	and 	in 	forma 	pauperis, 	filed 	an 	action 	under 	42 	U.S.C. 	§
1983. 	This 	action 	has 	been 	referred 	to 	the 	undersigned 	for
appropriate 	action 	pursuant 	to 	28 	U.S.C. 	§ 	636(b)(1)(B) 	and 	S.D.
Ala. 	GenLR 	72(a)(2)(R). 	After 	careful 	consideration, 	it 	is
recommended 	that 	Smith’s 	claim 	against 	Defendant 	Hartly 	be
dismissed without prejudice, prior to service of process, pursuant
to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon
which relief may be granted.
I. 	Nature of Proceedings.
The 	operative 	complaint 	in 	this 	action 	is 	Smith’s 	second
amended complaint, which he filed at the Court’s directive. 	(Doc.
16, 	PageID.97). 	Smith’s 	original 	complaint 	was 	filed 	utilizing
another 	court’s 	complaint 	form. 	(Doc. 	1, 	PageID.1). 	Smith 	was
ordered 	to 	file 	his 	complaint 	on 	this 	Court’s 	complaint 	form 	for
Case 1:22-cv-00124-CG-B Doc# 17 Filed 01/17/23 Page 1 of 10 PageID#
<pageID>

2
a § 1983 action, albeit a first amended complaint, and he did so.
(Doc. 3, PageID.9; Doc. 5, PageID.12).
Upon 	screening 	Smith’s 	first 	amended 	complaint, 	the
undersigned found that it failed to state a claim upon which relief
could be granted. 	(Doc. 3, PageID.9; Doc. 5, PageID.12). 	Instead
of 	recommending 	dismissal 	of 	the 	action, 	the 	Court 	granted 	Smith
leave 	to 	file 	a 	seconded 	amended 	complaint 	for 	the 	purpose 	of
stating 	a 	claim. 	(Doc. 	12, 	PageID.51). 	The 	undersigned 	also
highlighted 	the 	deficiencies 	in 	Smith’s 	amended 	complaint.
Specifically, 	Smith 	was 	advised 	that 	to 	state 	a 	§ 	1983 	claim
against a person, that person must have acted under color of state
law 	when 	he 	deprived 	Smith 	of 	a 	federal 	right, 	and 	that 	the 	fact
that Defendant Hartly served as Smith’s state public defender when
he represented him in the underlying criminal proceedings did not
establish 	that 	Hartly 	acted 	under 	color 	of 	state 	law. 	(Doc. 	3,
PageID.9; Doc. 12, PageID.62).
Smith was also advised that his second amended complaint would
replace 	his 	prior 	complaint; 	therefore, 	he 	should 	not 	rely 	upon
his 	prior 	complaint. 	(Doc. 	12 	at 	2, 	PageID.51). 	He 	was 	further
cautioned him that this action would be recommended for dismissal
if he did not comply with the Court’s order to timely file a second
amended 	complaint 	that 	complied 	with 	the 	pleading 	standards 	and
corrected the deficiencies highlighted in the Court’s order. 	(Id.---
Case 1:22-cv-00124-CG-B Doc# 17 Filed 01/17/23 Page 2 of 10 PageID#
<pageID>

3
at 15, PageID.64).
II. 	Standards of Review Under 28 U.S.C. § 1915(e)(2)(B).
Because 	Smith 	is 	proceeding 	in 	forma 	pauperis, 	the 	Court 	is
reviewing 	his 	second 	amended 	complaint 	(Doc. 	16) 	under 	28 	U.S.C.
§ 1915(e)(2)(B). 	Under 	§ 1915(e)(2)(B)(i), 	a 	claim 	may 	be
dismissed as “frivolous where it lacks an arguable basis in law or
fact.” 	Neitzke 	v. 	Williams, 	490 	U.S. 	319, 	325, 	109 	S.Ct. 	1827,
1831-32, 104 L.Ed.2d 338 (1989). 	A claim is frivolous as a matter
of law where, inter alia, the defendants are immune from suit, id.
at 	327, 	109 	S.Ct. 	at 	1833, 	or 	the 	claim 	seeks 	to 	enforce 	a 	right
that clearly does not exist. 	Id.
Moreover, 	a 	complaint 	may 	be 	dismissed 	under 	28 	U.S.C.
§ 1915(e)(2)(B)(ii) for failure to state a claim upon which relief
may 	be 	granted. 	Mitchell 	v. 	Farcass, 	112 	F.3d 	1483, 	1490 	(11th
Cir. 1997). 	To avoid dismissal for failure to state a claim upon
which 	relief 	can 	be 	granted, 	the 	allegations 	must 	show
plausibility. 	Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127
S.Ct. 	1955, 	1966, 	167 	L.Ed.2d 	929 	(2007). 	“A 	claim 	has 	facial
plausibility when the plaintiff pleads factual content that allows
the 	court 	to 	draw 	the 	reasonable 	inference 	that 	the 	defendant 	is
liable 	for 	the 	misconduct 	alleged.” 	Ashcroft 	v. 	Iqbal, 	556 	U.S.
662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). 	That is,
“[f]actual 	allegations 	must 	be 	enough 	to 	raise 	a 	right 	to 	relief
Case 1:22-cv-00124-CG-B Doc# 17 Filed 01/17/23 Page 3 of 10 PageID#
<pageID>

4
above 	the 	speculative 	level” 	and 	must 	be 	a 	“‘plain 	statement’
possess[ing] 	enough 	heft 	to 	‘sho[w] 	that 	the 	pleader 	is 	entitled
to 	relief.’” 	Twombly, 	550 	U.S. 	at 	555, 	557, 	127 	S.Ct. 	at 	1965,
1966 (second brackets in original). 	But “[t]hreadbare recitals of
the 	elements 	of 	a 	cause 	of 	action, 	supported 	by 	mere 	conclusory
statements, do not suffice.” 	Id.
When 	considering 	a 	pro 	se 	litigant’s 	allegations, 	a 	court
gives 	them 	a 	liberal 	construction 	holding 	them 	to 	a 	more 	lenient
standard 	than 	those 	of 	an 	attorney, 	Tannenbaum 	v. 	United 	States,
148 F.3d 1262, 1263 (11th Cir. 1998), but “this leniency does not
give a court license to serve as de facto counsel for a party, or
to rewrite an otherwise deficient pleading in order to sustain an
action.” 	Campbell 	v. 	Air 	Jamaica 	Ltd., 	760 	F.3d 	1165, 	1168–69
(11th Cir.) (citation and quotation marks omitted), cert. denied,
574 U.S. 1047 (2014). 	Furthermore, a court treats as true factual
allegations, 	but 	it 	does 	not 	treat 	as 	true 	conclusory 	assertions
or a recitation of a cause of action’s elements. 	Iqbal, 566 U.S.
at 	681, 	129 	S.Ct. 	at 	1951. 	In 	addition, 	a 	pro 	se 	litigant 	“is
subject 	to 	the 	relevant 	law 	and 	rules 	of 	court 	including 	the
Federal Rules of Civil Procedure.” 	Moon v. Newsome, 863 F.2d 835,
837 (11th Cir.), cert. denied, 493 U.S. 863 (1989).
III. Discussion.
In 	Smith’s 	second 	amended 	complaint, 	he 	again 	named 	Public
Case 1:22-cv-00124-CG-B Doc# 17 Filed 01/17/23 Page 4 of 10 PageID#
<pageID>

5
Defender 	Wade 	Hartly 	as 	a 	Defendant, 	as 	well 	as 	Heath 	Jackson,
Sheriff 	of 	Escambia 	County, 	Alabama, 	and 	Richard 	Hetrick, 	Warden
of the Escambia County Jail. 	(Doc. 16, PageID.100).
According 	to 	Smith, 	his 	claims 	against 	Defendant 	Hartly 	are
for 	ineffective 	assistance 	of 	counsel 	and 	for 	a 	conflict 	of
interest between June 28, 2021 and July 26, 2021. 	(Doc. 16 at 10,
PageID.106). 	According to Smith, Hartly was negligent in that he
failed to advise him that this was the time period for scheduling
a preliminary hearing. 	Additionally, Smith asserts that after he
was 	unable 	to 	notify 	the 	medical 	staff 	of 	his 	medical 	condition,
he 	notified 	Defendant 	Hartly 	of 	his 	medical 	condition, 	and 	after
two months with no response to his medical concerns and his legal
situation, 	he 	again 	contacted 	Defendant 	Hartly 	who 	told 	him 	that
the 	time 	for 	his 	preliminary 	hearing 	had 	expired. 	(Id.). 	Smith
asserts that during the following months, he received no advice or
updates 	about 	his 	criminal 	case. 	(Id.). 	Smith 	asserts 	that 	due
to his multiple unsuccessful attempts to contact Defendant Hartly
about 	his 	criminal 	case 	and 	his 	medical 	condition, 	he 	felt
neglected 	and 	felt 	it 	was 	necessary 	for 	him 	to 	file 	this 	action
for ineffective assistance of counsel. 	(Id.).
Smith believes that “Defendants” became aware of this lawsuit
against them around May 18, 2022.1 	(Id.). 	Then, on May 19, 2022,
1 	The Court received Smith’s complaint on March 22, 2022.
Case 1:22-cv-00124-CG-B Doc# 17 Filed 01/17/23 Page 5 of 10 PageID#
<pageID>

6
Smith 	received 	a 	plea 	offer 	from 	Defendant 	Hartly 	for 	“20 	years
out of retaliation.” 	(Id. at 10-11, PageID.106-107). 	Per Smith,
Defendant Hartly stated, “first of all, I’m not trying to give you
anything.” 	(Id.). 	According 	to 	Smith, 	at 	that 	time, 	he 	noticed
the charges had been altered to include a charge for distribution
of 	an 	“uncontrolled 	[sic] 	substance,” 	for 	which 	he 	received 	no
legal 	advice. 	(Id. 	at 	11, 	PageID.107). 	Smith 	told 	Defendant
Hartly 	that 	the 	plea 	offer 	was 	“unconstitutional” 	and 	not 	in 	his
best interests, because he is not a habitual offender, and it would
be a death sentence. 	(Id.). 	Smith maintains that Defendant Hartly
acted in retaliation because Hartly was “aware of the outstanding
lawsuit against him, but . . . negl[ec]ted to remove himself from
[Smith’s criminal] case due to [a] conflict of interest.” 	(Id.).
Smith further asserts that 	on September 8, 2022, he “inquired of”
Defendant 	Hartly, 	and 	that 	shortly 	thereafter, 	on 	September 	12,
2022, he received a letter from the clerk reflecting that Defendant
Hartly had been removed. 	(Id.). 	Smith asserts that on September
17, 2022, he was released on a signature bond, and ten days later,
he 	was 	transported 	to 	the 	Lee 	County 	Jail. 	(Id. 	at 	12,
PageID.108).
(Doc. 1). 	Subsequently, on May 16, 2022, the undersigned
entered an order that was sent to Smith and to the Warden of the
Escambia County Jail regarding Smith’s request to proceed in
forma pauperis. 	(Doc. 7, PageID.27).
Case 1:22-cv-00124-CG-B Doc# 17 Filed 01/17/23 Page 6 of 10 PageID#
<pageID>

7
Smith’s 	allegations 	against 	Defendant 	Hartly 	clearly 	arise
from Defendant Hartly representation of him in the underlying state
criminal proceedings. 	As noted supra, Smith seeks to assert claims
against Defendant Hartly for ineffective assistance of counsel and
conflict of interest. 	In the Court’s order dated October 4, 2022,
Smith 	was 	previously 	advised 	that 	to 	state 	a 	§ 	1983 	claim, 	a
person/defendant must be acting under color of state law when the
deprivation 	of 	the 	plaintiff’s 	federal 	rights 	occurs 	and 	that 	a
public 	defender 	does 	not 	act 	under 	color 	of 	state 	law. 	(Doc. 	12
at 13, PageID.62). 	The court further advised Smith that for these
reasons, he failed to state a § 1983 claim against Defendant Hartly
in his first amended complaint. 	(Id.).
The law in this area has not changed, that is, “[a] successful
section 1983 action requires a showing that the conduct complained
of 	(1) 	was 	committed 	by 	a 	person 	acting 	under 	color 	of 	state 	law
and 	(2) 	deprived 	the 	complainant 	of 	rights, 	privileges, 	or
immunities 	secured 	by 	the 	Constitution 	or 	laws 	of 	the 	United
States.” 	Harvey 	v. 	Harvey, 	949 	F.2d 	1127, 	1130 	(11th 	Cir. 	1992)
(emphasis 	added). 	The 	law 	is 	also 	well 	settled 	that 	in 	a 	§ 	1983
action, 	a 	criminal 	defense 	counsel, 	whether 	retained 	or 	court-
appointed, does not act under color of state law in the absence of
a conspiracy. 	Polk Cnty. v. Dodson, 454 U.S. 312, 325, 102 S.Ct.
445, 70 L.Ed.2d 509 (1981) (public defender); Slavin v. Curry, 574
Case 1:22-cv-00124-CG-B Doc# 17 Filed 01/17/23 Page 7 of 10 PageID#
<pageID>

8
F.2d 1256, 1264 (5th Cir.) (retained counsel), overruled on other
grounds by Sparks v. Duval Cnty. Ranch Co., 604 F.2d 976 (5th Cir.
1979). 	But see Tower v. Glover, 467 U.S. 914, 920, 104 S.Ct. 2820,
2824, 91 L.Ed.2d 758 (1984) (a private person may act under color
of 	law 	“when 	engaged 	in 	a 	conspiracy 	with 	state 	officials 	to
deprive another of federal rights”); Hunt v. Bennett, 17 F.3d 1263,
1268 	(10th 	Cir.) 	(the 	conclusory 	assertion 	of 	a 	conspiracy 	with
state 	actors 	was 	unsupported 	by 	facts 	showing 	communication,
agreement, or meeting of minds and therefore failed to demonstrate
that 	the 	public 	defender 	was 	acting 	under 	color 	of 	state 	law),
cert. denied, 513 U.S. 832 (1994).
In 	Polk 	County, 	the 	Supreme 	court 	ruled 	that 	“[e]xcept 	for
the source of payment, the[] [relationship of public defender and
criminal defendant is] identical to that existing between any other
lawyer and client.” 	454 U.S. at 318, 102 S.Ct. at 318. 	The Court
noted 	that 	a 	defense 	lawyer 	within 	our 	legal 	system 	is 	obligated
to 	be 	a 	personal 	counselor 	and 	advocate 	for 	his 	client 	in
opposition to the State’s representatives. 	Id. at 318, 102 S.Ct.
at 450. 	By advancing a client’s interests, and “not by acting on
behalf 	of 	the 	State 	or 	in 	concert 	with 	it,” 	the 	Court 	reasoned,
the defense lawyer best serves the public’s interest of truth and
fairness. 	Id. 	Thus, the Court determined that a public defender
does not act under color of state law as he performs “essentially
Case 1:22-cv-00124-CG-B Doc# 17 Filed 01/17/23 Page 8 of 10 PageID#
<pageID>

9
a private function, traditionally filled by retained counsel, for
which state office and authority are not needed.” 	Id.
In the present action, Smith does not allege that Defendant
Hartly 	acted 	under 	color 	of 	state 	law, 	nor 	do 	his 	factual
allegations show that Defendant Hartly acted under color of state
law. 	Thus, Defendant Hartly was not acting under color of law in
his dealings with Smith. 	Accordingly, the undersigned finds that
Defendant Hartley is due to be dismissed from this action for the
failure 	to 	state 	a 	claim 	against 	him 	upon 	which 	relief 	can 	be
granted.
IV. 	Conclusion.
Based upon the foregoing reasons, it is recommended that that
the claim against Defendant Hartly be dismissed without prejudice,
prior 	to 	service 	of 	process, 	pursuant 	to 	28 	U.S.C. 	§
1915(e)(2)(B)(ii) 	for 	failure 	to 	state 	a 	claim 	upon 	which 	relief
may be granted.
NOTICE OF RIGHT TO FILE OBJECTIONS
A 	copy 	of 	this 	report 	and 	recommendation 	shall 	be 	served 	on
all parties in the manner provided by law. 	Any party who objects
to 	this 	recommendation 	or 	anything 	in 	it 	must, 	within 	fourteen
(14) 	days 	of 	the 	date 	of 	service 	of 	this 	document, 	file 	specific
written objections with the Clerk of this Court. 	See 28 U.S.C. §
636(b)(1); FED.R.CIV.P. 72(b); S.D. Ala. Gen.LR 72(c). 	The parties
Case 1:22-cv-00124-CG-B Doc# 17 Filed 01/17/23 Page 9 of 10 PageID#
<pageID>

10
should 	note 	that 	under 	Eleventh 	Circuit 	Rule 	3-1, 	“[a] 	party
failing 	to 	object 	to 	a 	magistrate 	judge’s 	findings 	or
recommendations 	contained 	in 	a 	report 	and 	recommendation 	in
accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the
right 	to 	challenge 	on 	appeal 	the 	district 	court's 	order 	based 	on
unobjected-to 	factual 	and 	legal 	conclusions 	if 	the 	party 	was
informed of the time period for objecting and the consequences on
appeal for failing to object. In the absence of a proper objection,
however, 	the 	court 	may 	review 	on 	appeal 	for 	plain 	error 	if
necessary, 	in 	the 	interests 	of 	justice.” 	11th 	Cir. 	R. 	3-1. 	In
order 	to 	be 	specific, 	an 	objection 	must 	identify 	the 	specific
finding 	or 	recommendation 	to 	which 	objection 	is 	made, 	state 	the
basis 	for 	the 	objection, 	and 	specify 	the 	place 	in 	the 	Magistrate
Judge’s report and recommendation where the disputed determination
is 	found. 	An 	objection 	that 	merely 	incorporates 	by 	reference 	or
refers to the briefing before the Magistrate Judge is not specific.
DONE this 17th 	day of January, 2023.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE
Case 1:22-cv-00124-CG-B Doc# 17 Filed 01/17/23 Page 10 of 10 PageID#
<pageID>