UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

NILE GUTHRIE,

Plaintiff,

Case. No. 5:15-cv-11820

v. Hon. John Corbett O’Meara

DAVID NEWMAN, and

THOMAS M. McGINNIS,

Defendants.

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ORDER OF SUMMARY DISMISSAL

Plaintiff Nile Guthrie, an inmate at the Ojibway Correctional Facility, is suing the attorneys

who represented him in his state criminal proceedings. In particular, Plaintiff asserts that his trial

attorney, Thomas McGinnis, failed to secure the benefit of a negotiated plea bargain, and that his

appellate attorney, David Newman, was ineffective. He seeks compensatory and punitive damages.

“[A] district court may, at any time, sua sponte dismiss a complaint for lack of subject matter

jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure when the allegations

of a complaint are totally implausible, attenuated, unsubstantial, frivolous, devoid of merit, or no

longer open to discussion.” Apple v. Glenn, 183 F. 3d at 479 (citing Hagans v. Lavine, 415 U.S. 528,

536-37 (1974)(citing numerous Supreme Court cases for the proposition that patently frivolous,

attenuated, or unsubstantial claims divest the district court of jurisdiction)).

A complaint is frivolous if it lacks an arguable basis in law or fact. Neitzke v. Williams, 490

U.S. 319, 325 (1989); see also Denton v. Hernandez, 504 U.S. 25, 32 (1992). “A complaint lacks

an arguable basis in law or fact if it ... is based on legal theories that are indisputably meritless.” 

Brown v. Bargery, 207 F. 3d 863, 866 (6th Cir. 2000)(citing Neitzke, 490 U.S. at 327-28). A

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complaint fails to state a claim “if it appears beyond a doubt that the plaintiff can prove no set of

facts in support of his claim that would entitle him to relief.” Brown, 207 F. 3d at 867. Sua sponte

dismissal is appropriate if the complaint lacks an arguable basis when filed. McGore, 114 F. 3d at

612; Goodell v. Anthony, 157 F. Supp. 2d 796, 799 (E.D. Mich. 2001).

 A pro se litigant’s complaint is to be construed liberally, Middleton v. McGinnis, 860 F.

Supp. 391, 392 ( E.D. Mich.1994)(citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)); that is, they

are held to a “less stringent standard” than those drafted by attorneys. Haines v. Kerner, 404 U.S.

519, 520 (1972). Such complaints, however, must plead facts sufficient to show a legal wrong has

been committed from which plaintiff may be granted relief. Fed.R.Civ.P. 12(b); Dekoven v. Bell, 140

F. Supp. 2d 748, 755 (E.D. Mich.2001).

The essential elements of a claim under 42 U.S.C. § 1983 are that the conduct complained

of: (1) was committed by a person acting under color of state law, and (2) deprived plaintiff of

rights, privileges or immunities secured by the Constitution or laws of the United States. Parratt v.

Taylor, 451 U.S. 527, 535 (1981). "Absent either element, a section 1983 claim will not lie." Christy

v. Randlett, 932 F.2d 502, 504 (6th Cir. 1991). To be a "state actor," a party's actions must be "'fairly

attributable to the state.'" Ellison v. Garbarino, 48 F.3d 192, 195 (6th Cir. 1995), quoting Lugar v.

Edmondson Oil Co., 457 U.S. 922, 937 (1982).

Attorneys representing clients in criminal actions do not act under color of law for § 1983

purposes, even where such attorneys are appointed by the government to represent the criminal

defendant. Polk County v. Dodson, 454 U.S. 312 (1981). Thus, the defendants were not acting under

color of state law in acting as Plaintiff's attorneys. Accordingly, Plaintiff fails to state a claim upon

which relief may be granted under 42 U.S.C. § 1983. 

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For the foregoing reasons, the complaint is DISMISSED pursuant to Fed.R.Civ.P. 12(b)(1).

SO ORDERED.

s/John Corbett O’Meara 

United States District Judge

Date: May 28, 2015

I hereby certify that a copy of the foregoing document was served upon the parties of record

on this date, May 28, 2015, using the ECF system and/or ordinary mail.

s/William Barkholz 

Case Manager

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