UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

NORTHERN DIVISION 

ZACHARY TAYLOR, 

 Plaintiff, Case No. 15-cv-11606 

v Honorable Thomas L. Ludington 

EDWARD G. MARSHALL, 

 Defendant. 

__________________________________________/ 

ORDER SUMMARILY DISMISSING COMPLAINT AND DENYING PERMISSION TO 

PROCEED IN FORMA PAUPERIS ON APPEAL 

 Plaintiff Zachary Taylor, a state inmate incarcerated at the Macomb Correctional Facility, 

has filed a pro se civil rights complaint pursuant to 42 U.S.C. § 1983. The Court granted 

Plaintiff’s application to proceed in forma pauperis, and he is proceeding without prepayment of 

the filing fee in this action under 28 U.S.C. § 1915(a)(1). After careful consideration, the court 

summarily dismisses the complaint. 

I.

 Plaintiff is incarcerated as a result of his 2014 St. Clair Circuit Court convictions for 

distributing obscene matter to a minor and six counts of first-degree criminal sexual conduct. 

Plaintiff claims that Defendant, his defense counsel at his criminal trial, committed ineffective 

assistance of counsel, resulting in his erroneous conviction. The complaint seeks $250,000 in 

damages. 

II.

 Civil rights complaints filed by a pro se prisoner are subject to the screening requirements 

of 28 U.S.C. § 1915(e)(2). Brown v. Bargery, 207 F.3d 863, 866 (6th Cir. 2000). Section 

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1915(e)(2) requires district courts to screen and to dismiss complaints that are frivolous, fail to 

state a claim upon which relief can be granted, or that seek monetary relief from a defendant who 

is immune from such relief. 28 U.S.C. § 1915(e)(2); McGore v. Wigglesworth, 114 F.3d 601, 

604 (6th Cir. 1997). A complaint is frivolous and subject to sua sponte dismissal under § 

1915(e) if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 325 

(1989). A plaintiff fails to state a claim upon which relief may be granted when, construing the 

complaint in a light most favorable to the plaintiff and accepting all the factual allegations as 

true, the plaintiff undoubtedly can prove no set of facts in support of his claims that would entitle 

him to relief. Sistrunk v. City of Strongsville, 99 F.3d 194, 197 (6th Cir. 1996); Cline v. Rogers, 

87 F.3d 176, 179 (6th Cir. 1996); Wright v. MetroHealth Med. Ctr., 58 F.3d 1130, 1138 (6th Cir. 

1995). 

III.

 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, Defendant was not acting under 

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

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

 To the extent that Plaintiff claims that his conviction is invalid because he received 

ineffective assistance of counsel, he also fails to state a claim upon which relief may be granted 

under 42 U.S.C. § 1983. A judgment in favor of Plaintiff on this issue would necessarily imply 

the invalidity of his continued confinement. In Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), 

the Supreme Court held such claims to be improper under 42 U.S.C. § 1983: 

[W]hen 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 unless plaintiff can demonstrate that the conviction or sentence has 

already been invalidated. 

Id. at 486-87. A petition for a writ of habeas corpus provides the appropriate vehicle for 

challenging the fact or duration of a prisoner’s confinement. Preiser v. Rodriguez, 411 U.S. 475, 

486-87 (1973). Thus, if Plaintiff wishes to assert a claim that he was deprived of his right to the 

effective assistance of counsel, he must do so by filing a motion for habeas corpus. 

IV. 

 Accordingly, it is ORDERED that Plaintiff’s Complaint (ECF No. 1) is DISMISSED. 

It is further ORDERED that permission to proceed in forma pauperis on appeal is 

DENIED because any appeal would be frivolous and not taken in good faith pursuant 28 U.S.C. 

§ 1915(a)(3). 

s/Thomas L. Ludington 

 THOMAS L. LUDINGTON 

 United States District Judge 

Dated: May 27, 2015 

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PROOF OF SERVICE 

The undersigned certifies that a copy of the foregoing order was served 

upon each attorney or party of record herein by electronic means or first 

class U.S. mail and on Zachary Taylor #597646, Macomb Correctional 

Facility, 342625 26 Mile Road, New Haven, MI 48048 on May 27, 

2015. 

 s/Karri Sandusky 

 Karri Sandusky, Acting Case Manager 

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