United States District Court, M.D. Florida, Fort Myers Division
REPORT AND RECOMMENDATION
MCCOY UNITED STATES MAGISTRATE JUDGE
cause is before the Undersigned on the Order to Show Cause
(Doc. 13) filed on April 2, 2018. Plaintiff David Freeman
failed to respond to the Order to Show Cause and the time to
respond has lapsed.
background of the case is as follows. On October 12, 2017,
Plaintiff filed a Complaint Under the Civil Rights Act, 42
U.S.C. § 1983. (Doc. 1). Plaintiff also filed an
Affidavit of Indigency (Doc. 10) on February 23, 2018,
seeking to proceed without the prepayment of fees and other
costs. After Plaintiff filed his Affidavit of Indigency (Doc.
10) and Prisoner Consent Form and Financial Certificate (Doc.
11), the Undersigned reviewed Plaintiff's Complaint
pursuant to 28 U.S.C. § 1915 and entered an Order (Doc.
12) on February 26, 2018, explaining that as written,
Plaintiff's Complaint fails to state a federal claim and
as such, the Undersigned required Plaintiff to file an
Amended Complaint. (Doc. 12 at 3-4). When Plaintiff failed to
file an Amended Complaint, the Undersigned entered an Order
to Show Cause (Doc. 13) on April 2, 2018 that: (1) afforded
Plaintiff another opportunity to comply with the February 26,
2018 Order by filing an Amended Complaint on or before April
20, 2018; and (2) required Plaintiff to show good cause why
this action should not be dismissed for failure to prosecute.
(Doc. 13 at 1-2). As stated above, Plaintiff did not comply
with the Order to Show Cause.
explained in the February 26 Order, Section 1915(e)(2)(B)
requires the Court to dismiss the case if it determines that
the action is frivolous or malicious; if it fails to state a
claim upon which relief may be granted; or if the complaint
seeks monetary relief against a defendant who is immune from
such relief. 28 U.S.C. § 1915. A complaint is considered
to be frivolous when it “lacks an arguable basis either
in law or in fact.” Neitzke v. Williams, 490
U.S. 319, 325 (1989).
Complaint (Doc. 1), Plaintiff alleges that he seeks damages
and injunctive relief pursuant to 42 U.S.C. § 1983,
claiming “attorney malpractice, repudiated adequate
legal representation, and fraud with grand theft under
deceptive practices.” (Doc. 1 at 2). Plaintiff states
that he retained attorney Matthew Cleary to represent him in
a criminal matter and paid Mr. Cleary $5, 000.00.
(Id. at 3 ¶ 4). Plaintiff alleges that at the
time he hired Mr. Cleary, Mr. Cleary failed to inform
Plaintiff that Mr. Cleary had a pending Florida Bar complaint
against him. (Id.). Plaintiff also claims that Mr.
Cleary accepted Plaintiff's retainer fees “and
virtually did nothing to substantiate good intent, thereby
committing fraud under Florida Statute [§]
817.0345.” (Id. at 3-4 ¶ 4). Eventually,
after Mr. Cleary was dismissed, the public defender was
appointed to represent Plaintiff and then Plaintiff's
family retained the services of attorneys Apellaniz and
Gallop. (Id. at 4 ¶ 5).
balance of the Complaint contains legal argument. (See
Id. at 4-10). Within the legal arguments, Plaintiff
claims that Mr. Cleary violated Plaintiff's
constitutional rights due to Mr. Cleary's malpractice and
these constitutional violations are cognizable under 42
U.S.C. § 1983. (Id. at 5). Plaintiff concedes
that Mr. Cleary “was not acting through the government,
” but argues “the oath taken by attorneys
within the Florida Bar puts the burden equal to those members
of the entire judicial system.” (Id. at 6).
Plaintiff argues that Mr. Cleary was acting under
“color of law.” (Id. at 7). Plaintiff
seeks an Order requiring Mr. Cleary to reimburse him for the
$5, 000.00 retainer fee, award him compensatory damages of
$50, 000.00, and award punitive damages of $50, 000.00.
(Id. at 10).
§ 1983 action, the initial inquiry must focus on whether
two essential elements are present:
(1) whether the person engaged in the conduct complained of
was acting under color of state law; and
(2) whether the alleged conduct deprived a person of rights,
privileges or immunities guaranteed under the Constitution or
laws of the United States.
Duke v. Massey, 87 F.3d 1226, 1231 (11th Cir. 1996)
(emphasis added); Hale v. Tallapoosa Cty., 50 F.3d
1579, 1582 (11th Cir. 1995). “To satisfy section
1983's ‘under color of [state law]'
requirement, a plaintiff must demonstrate that ‘the
conduct allegedly causing the deprivation of a federal right
[is] fairly attributable to the State.'” Gene
Thompson Lumber Co. v. Davis Parmer Lumber Co.,
984 F.2d 401, 403 (11th Cir. 1993) (quoting Lugar v.
Edmondson Oil Co., 457 U.S. 922, 937 (1982)). The law is
clear that “the under-color-of-state-law element of
§ 1983 excludes from its reach merely private conduct,
no matter how discriminatory or wrongful.” Focus on
the Family v. Pinellas Suncoast Transit Auth.,
344 F.3d 1263, 1277 (11th Cir. 2003) (citation omitted).
though Plaintiff attempts to claim that Mr. Cleary acted
under color of law, Plaintiff's claim fails. Plaintiff
retained a private citizen and attorney, Mr. Cleary, to
represent him in court. The Supreme Court held even a public
defender “does not act under color of state law when
performing a lawyer's traditional functions as counsel to
a defendant in a criminal proceeding.” Polk Cty. v.
Dodson, 454 U.S. 312, 325 (1981). The Supreme Court
explained that a public defender “works under canons of
professional responsibility that mandate his exercise of
independent judgment on behalf of the client” and
because there is an “assumption that counsel will be
free of state control.” Legal Servs. Corp. v.
Velazquez, 531 U.S. 533, 542 (2001) (quoting Polk
Cty., 454 U.S. 321-322); see also Rogozinski v.
Spaulding, 330 Fed.Appx. 170, 171 (11th Cir. 2009);
Hochstadt v. McHugh, No. 08-61098-CIV, 2008 WL
3992295, at *2 (S.D. Fla. Aug. 27, 2008). Consequently,
Plaintiff's Complaint fails to state a claim under §
1983. Moreover, although Plaintiff mentions the Eighth and
Fourteenth Amendments to the United States Constitution, he
does not state a claim under these Amendments or any other
addition, Plaintiff failed to comply with the February 26,
2018 Order (Doc. 12) and the Order to Show Cause (Doc. 13).
Under Local Rule 3.10, “[w]henever it appears that any
case is not being diligently prosecuted the Court may, on
motion of any party or on its own motion, enter an order to
show cause why the case should not be dismissed, and if no
satisfactory cause is shown, the case may be dismissed by the
Court for want of prosecution.” M.D. Fla. R. 3.10(a).
Here, Plaintiff did not comply with the February 26, 2018
Order (Doc. 12), the Order to Show Cause (Doc. 13), and did
not file an Amended Complaint. Thus, it appears that
Plaintiff has failed to prosecute this action.
foregoing reasons, the Undersigned finds that Plaintiff's
request to proceed in forma pauperis should be
denied and this action be dismissed.