United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
M. YANDLE UNITED STATES DISTRICT JUDGE
Tarriel Hudson brings this action pursuant to 42 U.S.C.
§ 1983 asserting deprivations of his constitutional
rights and seeking monetary damages. (Doc. 1). The Complaint
is now before the Court for preliminary review under 28
U.S.C. § 1915A, which requires the Court to screen
prisoner complaints to filter out nonmeritorious claims. 28
U.S.C. § 1915A(a). Any portion of the Complaint that is
legally frivolous or malicious, fails to state a claim for
relief, or requests money damages from an immune defendant
must be dismissed. 28 U.S.C. § 1915A(b).
was represented by Defendant Ting in his capacity as a public
defender in numerous cases. (Doc. 1, p. 8). Plaintiff alleges
that in one case, Ting had a conflict of interest because he
had previously represented the alleged victim.
(Id.). He also alleges that Ting provided
ineffective assistance of counsel in numerous cases and
contends Ting violated “a few of [his] constitutional
attorneys, even those appointed by a court, are not
considered state actors or federal officials for purposes of
a claim under Section 1983. See Polk County v.
Dodson, 454 U.S. 312, 325 (1981) (holding that “a
public defender does not act under color of state law [for
purposes of liability under § 1983] when performing a
lawyer's traditional functions as counsel to a defendant
in a criminal proceeding”); Turner v. Godinez,
693 F.App'x. 449, 454 (7th Cir. 2017) (“public
defenders were not acting under color of state law and thus
cannot be sued under § 1983”); Brown v.
Wisconsin Public Defender's Office, 854 F.3d 916
(7th Cir. 2017) (prisoner incurred two strikes for filing
frivolous civil rights action and appeal against public
defender's office based on representation of him in
appeal); Swift v. Swift, 556 F.App'x. 509,
510-511 (7th Cir. 2014) (public defenders acting as criminal
counsel do not act “under color of state law” and
cannot be sued under § 1983); McDonald v.
White, 465 F.App'x. 544 (7th Cir. 2012) (same).
Accordingly, Plaintiff's claim against Ting will be
dismissed with prejudice.
the Court discerns no viable federal claim in the Complaint,
and because Plaintiff's claim relates only to conduct by
a public defender in a criminal proceeding, amendment of the
Complaint would be futile. Therefore, the Complaint and this
entire action will be dismissed for failure to state a claim
upon which relief may be granted. See Bogie v.
Rosenberg, 705 F.3d 603, 608 (7th Cir. 2013); Garcia
v. City of Chicago, 24 F.3d 966, 970 (7th Cir. 1994).
IS HEREBY ORDERED that this matter does not survive
preliminary review under 28 U.S.C. § 1915A, and the
Complaint and this entire action are
DISMISSED without prejudice for failure to
state a claim upon which relief may be granted. The dismissal
counts as one of Plaintiff's three allotted
“strikes” under 28 U.S.C. § 1915(g).
IS FURTHER ORDERED that Defendant Ting is
DISMISSED with prejudice from the action.
The Clerk of Court is DIRECTED to
TERMINATE him as a party in the Court's
Case Management/Electronic Case Filing (CM/ECF) system.
IS FURTHER ORDERED that Plaintiff's Motion for
Recruitment of Counsel (Doc. 3) is DENIED as
Plaintiff wishes to appeal this dismissal, his notice of
appeal must be filed with this Court within thirty days of
the entry of judgment. Fed. R. App. P. 4(a)(1)(A). A motion
for leave to appeal in forma pauperis should set
forth the issues Plaintiff plans to present on appeal.
See Fed. R. App. P. 24(a)(1)(C). If Plaintiff does
choose to appeal, he will be liable for the $505.00 appellate
filing fee irrespective of the outcome of the appeal.
See Fed. R. App. P. 3(e); 28 U.S.C. §
1915(e)(2); Ammons v. Gerlinger, 547 F.3d 724,
725-26 (7th Cir. 2008); Sloan v. Lesza, 181 F.3d
857, 858-59 (7th Cir. 1999); Lucien v. Jockisch, 133
F.3d 464, 467 (7th Cir. 1998). Moreover, if the appeal is
found to be nonmeritorious, Plaintiff may incur a
“strike.” A proper and timely motion filed
pursuant to Federal Rule of Civil Procedure 59(e) may toll
the 30-day appeal deadline. Fed. R. App. P. 4(a)(4). A Rule
59(e) motion must be filed no more than twenty-eight (28)
days after the entry of the judgment, and this 28-day
deadline cannot be extended.
is ADVISED that his obligation to pay the
filing fee for this action was incurred at the time the
action was filed, thus the filing fee remains due and
payable. 28 U.S.C. § 1915(b)(1); Lucien v.
Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).
Clerk of the Court is DIRECTED to enter
final judgment and to close this case.