UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

LAWRENCE JAMES WHEELER,

CASE NO: 14-CV-14672

Plaintiff,

DISTRICT JUDGE STEPHEN J. MURPHY, III

v. MAGISTRATE JUDGEPATRICIA T. MORRIS

DEBORAH H. McKELVEY, 

Defendant.

________________________________/

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

ON DEFENDANT’S MOTION TO DISMISS 

(Doc. 4)

I. RECOMMENDATION

For the reasons set forth below, IT IS RECOMMENDED that Defendant’s motion

to dismiss (Doc. 4) be GRANTED and that the case be DISMISSED with prejudice.

II. REPORT

A. Introduction

On December 10, 2014, Plaintiff Lawrence James Wheeler (“Wheeler”), filed this pro

se prisoner civil rights action. The defendant was Plaintiff’s court-appointed attorney during

the early stages of a criminal proceeding in state court, i.e., Oakland County Circuit Court.

The case was referred to the undersigned magistrate judge for pretrial proceedings. (Doc. 6.)

2:14-cv-14672-SJM-PTM Doc # 11 Filed 04/27/15 Pg 1 of 7 Pg ID 109
Defendant filed the instant motion to dismiss on December 30, 2014, Plaintiff responded

(Doc. 8,) and Defendant replied. (Doc. 9.) 

B. Motion to dismiss standards

Defendants move for dismissal under Rule 12(b)(6) of the Federal Rules of Civil

Procedure. When deciding a motion to dismiss, “[t]he court must construe the complaint in

the light most favorable to the plaintiff, accept all the factual allegations as true, and

determine whether the plaintiff can prove a set of facts in support of its claims that would

entitle it to relief.” Bovee v. Coopers & Lybrand C.P.A., 272 F.3d 356, 360 (6th Cir. 2001).

As the Supreme Court held in Bell Atlantic Corp. v. Twombly, a complaint must be dismissed

pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted if the

complaint does not plead “enough facts to state a claim to relief that is plausible on its face.”

550 U.S. 544, 570 (2007) (rejecting the traditional Rule 12(b)(6) standard set forth in Conley

v. Gibson, 355 U.S. 41, 45-46 (1957)). Under Rule 12(b)(6) of the Federal Rules of Civil

Procedure, “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’

requires more than labels and conclusions, and a formulaic recitation of the elements of a

cause of action will not do.” Twombly, 550 U.S. at 555 (citations omitted). Even though a

complaint need not contain “detailed” factual allegations, its “[f]actual allegations must be

enough to raise a right to relief above the speculative level on the assumption that all the

allegations in the complaint are true (even if doubtful in fact).” Id. (citations omitted). 

2

2:14-cv-14672-SJM-PTM Doc # 11 Filed 04/27/15 Pg 2 of 7 Pg ID 110
The Supreme Court has explained that the “tenet that a court must accept as true all

of the allegations contained in the complaint is inapplicable to legal conclusions.” Ashcroft

v. Iqbal, 556 U.S.662, 678 (2009) (finding assertions that one defendant was the “principal

architect” and another defendant was “instrumental” in adopting and executing a policy of

invidious discrimination insufficient to survive a motion to dismiss because they were

“conclusory” and thus not entitled to the presumption of truth). Although Rule 8 “marks a

notable and generous departure from the hyper-technical, code-pleading regime of a prior

era,” it “does not unlock the doors of discovery for a plaintiff armed with nothing more than

conclusions.” Id. “Determining whether a complaint states a plausible claim for relief will

. . . be a context-specific task that requires the reviewing court to draw on its judicial

experience and common sense.” Id. at 679. Thus, “a court considering a motion to dismiss

can choose to begin by identifying pleadings that, because they are no more than conclusions,

are not entitled to the assumption of truth. . . . When there are well-pleaded factual

allegations, a court should assume their veracity and then determine whether they plausibly

give rise to an entitlement to relief.” Id.

“In determining whether to grant a Rule 12(b)(6) motion, the court primarily considers

the allegations in the complaint, although matters of public record, orders, items appearing

in the record of the case, and exhibits attached to the complaint, also may be taken into

account.” Nieman v. NLO, Inc., 108 F.3d 1546, 1554 (6th Cir. 1997) (quoting 5A Charles

A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (2d ed. 1990)). This

3

2:14-cv-14672-SJM-PTM Doc # 11 Filed 04/27/15 Pg 3 of 7 Pg ID 111
circuit has further “held that ‘documents that a defendant attaches to a motion to dismiss are

considered part of the pleadings if they are referred to in the plaintiff’s complaint and are

central to [the plaintiff’s] claim.’” Weiner v. Klais & Co., 108 F.3d 86, 89 (6th Cir. 1997)

(quoting Venture Assoc. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993));

Yeary v. Goodwill Industries-Knoxville, Inc., 107 F.3d 443, 445 (6th Cir. 1997) (finding that

the consideration of other materials that “simply filled in the contours and details of the

plaintiff’s [second amended] complaint, and added nothing new” did not convert motion to

dismiss into motion for summary judgment). 

A civil rights action under 42 U.S.C. § 1983 consists of two elements: (1) the

defendant acted under color ofstate law; and (2) the offending conduct deprived the plaintiff

of rights secured by federal law. Bloch v. Ribar, 156 F.3d 673, 677 (6th Cir. 1998) (citing

Parratt v. Taylor, 451 U.S. 527, 535 (1981)). In addition, a plaintiff must allege that he

suffered a specific injury as a result of the conduct of a particular defendant and he must

allege an affirmative link between the injury and the conduct of that defendant. Rizzo v.

Goode, 423 U.S. 362, 371-72 (1976). “If a plaintiff fails to make a showing on any essential

element of a § 1983 claim, it must fail.” Redding v. St. Eward, 241 F.3d 530, 532 (6th Cir.

2001).

C. Analysis & Conclusions

Defendant was Wheeler’s court-appointed trial attorney on a first degree home

invasion and an unlawful driving away of an automobile charges in Oakland County Circuit

4

2:14-cv-14672-SJM-PTM Doc # 11 Filed 04/27/15 Pg 4 of 7 Pg ID 112
Court, Michigan. Wheeler contends that Defendant “falsely and feloniously” “forge[d] the

name of Lawrence Wheeler on a waiver of arraignment formwithout the plaintiff’s consent.”

(Doc. 1 at 1.) Wheeler was not arraigned in person but rather was arraigned bymail. Wheeler

alleges that he never signed the waiver of in-person arraignment and that this act of forgery

violates 42 U.S.C. § 1983, professional ethics, and the Michigan Forgery and Counterfeiting

laws, Mich. Comp. Laws §§ 750.248-750.266.

Defendant represented Wheeler from April 6, 2011, to July 14, 2011, at which time

Defendant was allowed to withdraw as counsel since Defendant and Wheeler’s attorneyclient relationship had broken down due to the forgery accusation. 

First, I suggest that Defendant is not subject to suit under § 1983 because she is not

a state actor nor was she acting under color of state law. See Dallas v. Holmes, 137 Fed.

App’x 746, 752 (6th Cir. 2005) (“It is well-settled that a lawyer representing a client is not

a state actor ‘under color of law’ within the meaning of § 1983.”); accord, Polk County v.

Dodson, 454 U.S. 312 (1981) (public defendant does not act under color of state law for

purposes of § 1983). 

Nor has Plaintiff stated a valid state law claim under Mich. Comp. Laws §§ 750.248-

750.266 since that statute does not provide a private cause of action. Kloss v. RBS Citizens,

N.A., 996 F. Supp. 2d 574, 589 (E.D. Mich. 2014). Finally, Wheeler’s claim that Defendant

violated her ethical obligations as an attorney is also not actionable. See Glasson Aerospace

Science, Inc. v. RCO Engineering, Inc., No. 14-11358, 2014 WL 6389568, at *6 (E.D. Mich,

5

2:14-cv-14672-SJM-PTM Doc # 11 Filed 04/27/15 Pg 5 of 7 Pg ID 113
Nov. 14, 2014) (finding that a violation of the ethics rules does not give rise to a cause of

action); DeVolder v. Lee, No. 14-cv-10624, 2014 WL 4182452, at *6 (E.D. Mich. Aug. 21,

2014) (Michigan Rules of Professional Conduct, Rule 1.0(b) explicitly states that the ethics

rules “do not, however, give rise to a cause of action for enforcement of a rule or for

damages caused by failure to comply with an obligation or prohibition imposed by a rule.”).

D. Conclusion

Accordingly, I suggest that Defendant’s motion be granted and the case be dismissed

with prejudice for failure to state a claim upon which relief can be granted.

III. REVIEW

Pursuant to Rule 72(b)(2) of the Federal Rules of Civil Procedure, “[w]ithin 14 days

after being served with a copy of the recommended disposition, a party may serve and file

specific written objections to the proposed findings and recommendations. A party may

respond to another party’s objections within 14 days after being served with a copy.” Fed.

R. Civ. P. 72(b)(2); see also 28 U.S.C. § 636(b)(1). Failure to file specific objections

constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct.

466, 88 L. Ed.2d 435 (1985); Howard v. Sec’y of Health & Human Servs., 932 F.2d 505 (6th

Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). The parties are advised

that making some objections, but failing to raise others, will not preserve all the objections

a party may have to this Report and Recommendation. Willis v. Sec’y of Health & Human

6

2:14-cv-14672-SJM-PTM Doc # 11 Filed 04/27/15 Pg 6 of 7 Pg ID 114
Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed’n of Teachers Local 231, 829

F.2d 1370, 1373 (6th Cir. 1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any

objections is to be served upon this magistrate judge. 

Any objections must be labeled as “Objection No. 1,” “Objection No. 2,” etc. Any

objection must recite precisely the provision of this Report and Recommendation to which

it pertains. Not later than 14 days after service of an objection, the opposing party may file

a concise response proportionate to the objections in length and complexity. Fed. R. Civ. P.

72(b)(2); E.D. Mich. LR 72.1(d). The response must specifically address each issue raised

in the objections, in the same order, and labeled as “Response to Objection No. 1,”

“Response to Objection No. 2,” etc. If the Court determines that any objections are without

merit, it may rule without awaiting the response.

Date: April 27, 2015 s/ Patricia T. Morris

Patricia T. Morris

United States Magistrate Judge

CERTIFICATION

I hereby certify that the foregoing document was electronically filed this date

through the Court’s CM/ECF system which delivers a copy to all counsel of record. A

copy was also sent via First Class mail to Lawrence James Wheeler #270597 at G. Robert

Cotton Correctional Facility, 3500 N. Elm Road, Jackson, MI 49201.

Date: April 27, 2015 By s/Kristen Krawczyk 

 Case Manager to Magistrate Judge Morris

7

2:14-cv-14672-SJM-PTM Doc # 11 Filed 04/27/15 Pg 7 of 7 Pg ID 115