United States District Court, D. New Mexico
BERDINO J. ARTHUR, Plaintiff,
GEORGE A. HARRISON, Defendant.
MEMORANDUM OPINON AND ORDER
MATTER is before the Court under 28 U.S.C. §
1915(e)(2) on the Prisoner's Civil Rights Complaint filed
by Plaintiff Berdino J. Arthur on November 7, 2016. (Doc. 1).
The Court will dismiss the Complaint for failure to state a
claim on which relief can be granted and will impose a
“strike” under 28 U.S.C. § 1915(g).
Berdino J. Arthur pled guilty/no contest to charges of child
abuse resulting in great bodily harm and aggravated battery
against a household member in New Mexico cause no.
D-116-CR-2008-00611. Judgment on his conviction and sentence
was entered on October 28, 2008. Following entry of Judgment
on his conviction, Arthur sought to withdraw his guilty/no
contest plea. The Court denied his Motion. Arthur then filed
a New Mexico Petition for Writ of Habeas Corpus, alleging
ineffective assistance and constitutional violations by his
defense counsel, George A. Harrison. The Petition was denied
by the District Court, and the New Mexico Supreme Court
declined to grant a writ of certiorari to review the District
Court's ruling. See D-116-CR-2008-00611. At the
time his Complaint was filed, Plaintiff Arthur was
incarcerated at the Guadalupe County Correctional Facility on
the sentence imposed in D-116-CR-2008-00611. (Doc. 1 at 1).
Arthur filed his Prisoner's Civil Rights Complaint on
November 7, 2016. (Doc. 1). In his Complaint, Arthur names
Attorney George A. Harrison as the sole Defendant. (Doc. 1 at
1, ¶ 2). Arthur alleges that Defendant Harrison was his
private attorney in case no. D-116-CR-2008-00611, and that
Attorney Harrison “violated the Rules of Professional
Conduct by misrepresentation [sic] me and false statements of
material fact on my behalf.” (Doc. 1 at 1). Arthur
contends the misrepresentation and false statement violated
his due process rights. (Doc. 1 at 2). He seeks an order
vacating his criminal conviction and sentence and $50, 000,
000 in damages. (Doc. 1 at 5).
Failure to State a Claim: Plaintiff Arthur is
proceeding pro se and in forma pauperis on civil
rights claims under 42 U.S.C. § 1983. The Court may
dismiss an in forma pauperis complaint for failure
to state a claim upon which relief may be granted under
either Fed.R.Civ.P. 12(b)(6) or 28 U.S.C. §
1915(e)(2)(B). Under Fed.R.Civ.P. 12(b)(6) the Court accepts
well-pled factual allegations, but not conclusory,
unsupported allegations, and may not consider matters outside
the pleading. Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007); Dunn v. White, 880 F.2d 1188,
1190 (10th Cir. 1989). A claim should be dismissed
where it is legally or factually insufficient to state a
plausible claim for relief. Twombly, 550 U.S. at
570; Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir.
§ 1915(e)(2)(B) the Court may dismiss the complaint if
the Court determines the action fails to state a claim for
relief or is frivolous or malicious. 28 U.S.C. §
915(e)(2)(B)(2). The authority granted by § 1915 permits
the court the power to pierce the veil of the complaint's
factual allegations and dismiss those claims whose factual
contentions are clearly baseless. Neitzke v.
Williams, 490 U.S. 319, 327 (1989); see also Hall v.
Bellmon, 935 F.2d at 1109. The Court is not required to
accept the truth of the plaintiff's allegations but may
go beyond the pleadings and consider any other materials
filed by the parties. Denton v. Hernandez, 504 U.S.
25, 32-33 (1992).
the Court liberally construes the factual allegations, a pro
se plaintiff's pleadings are judged by the same legal
standards that apply to all litigants, and a pro se plaintiff
must abide by the applicable rules of court. Northington
v. Jackson, 973 F.2d 1518, 1520-21 (10th Cir. 1992);
Ogden v. San Juan County, 32 F.3d 452, 455
(10th Cir. 1994). The Court is not obligated to
craft legal theories for the plaintiff or to supply factual
allegations to support the plaintiff's claims, nor may
the Court assume the role of advocate for the pro se
litigant. Hall v. Bellmon, 935 F.2d at 1110.
Arthur's Complaint Fails to State a Claim for § 1983
Relief: To state a claim for relief under 42
U.S.C. § 1983, a plaintiff must assert acts by
government officials acting under color of law that result in
a deprivation of rights secured by the United States
Constitution. 42 U.S.C. § 1983; West v. Atkins,
487 U.S. 42, 48 (1988). Plaintiff must allege some personal
involvement by an identified official in the alleged
constitutional violation to succeed under § 1983.
Fogarty v. Gallegos, 523 F.3d 1147, 1162
(10th Cir. 2008). A plaintiff's complaint must
“make clear exactly who is alleged to have
done what to whom.” Robbins v.
Oklahoma, 519 F.3d 1242, 1249-50 (10th Cir.
2008). Generalized allegations against
“defendants” or “officers, ” without
identification of individual actors and conduct that caused
the deprivation of a constitutional right, do not state any
claim for relief. Robbins v. Oklahoma, 519 F.3d at
Complaint filed by Arthur fails to state a claim for relief
under the § 1915(e)(2)(B) and Fed.R.Civ.P. 12(b)(6)
standards. Section 1983 states:
Every person who, under color of any statue,
ordinance, regulation, custom, or usage, of any State or
Territory or the District of Columbia, subjects
or causes to be subjected, any citizen of the United States
or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to the party
injured in an action at law . . . .
42 U.S.C. § 1983 (emphasis added). The United States
Supreme Court has held that attorneys acting as criminal
defense counsel cannot be sued under § 1983 because they
do not act under color of state law. See Polk County. v.
Dodson, 454 U.S. 312, 315, 102 S.Ct. 445, 70 L.Ed.2d 509
(1981). An attorney 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, 454 U.S. at 325.
Complaint makes no allegations against Defendant Harrison
other than that he was performing a lawyer's traditional
functions as defense counsel to Arthur in the state criminal
proceeding. Because Arthur's claims all are based on
allegations regarding the functions of counsel in his
criminal case, Defendant Harrison is not a state actor and
the complaint against him fails to state a § 1983 claim
for relief. Polk, 454 U.S. at 325.
addition to the lack of action under color of state law,
Arthur's Complaint fails to state a claim for relief
because it is barred by Heck v. Humphrey, 512 U.S.
477, 487 (1994). In Heck, the Supreme Court
addressed the question of when a prisoner may bring a §
1983 claim relating to his conviction or sentence. 512 U.S.
at 487. The Court held that 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.
Id. Similarly, although in some circumstances a
prospective injunction may be available under § 1983, to
the extent a request for declaratory or injunctive relief
would necessarily invalidate the prisoner's conviction or
sentence, declaratory and injunctive relief also are barred
by the Heck doctrine. Wilkinson v. Dotson,
544 U.S. 74, 80-81 (2005); see also Edwards v.
Balisok, 520 U.S. 641 (1997).
Prayer for Relief specifically asks the Court to vacate and
set aside his criminal sentence and award him damages. (Doc.
1 at 5). Arthur's request for relief clearly necessitates
the invalidation of his sentence. Because a favorable ruling
on Arthur's claims would require treating his sentence in
D-116-CR-2008-00611 as invalid, the civil rights claims in
the Complaint fail to state a claim upon which relief can be
granted and must be dismissed under the Heck
doctrine. See Beck v. City of Muskogee Police Dept.,
195 F.3d 553, 556-57 (10th Cir. 1999).
Arthur Will Not Be Granted Leave to ...