IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

TYLER DIVISION

JAMES ODOM #113614 §

VS. § CIVIL ACTION NO. 6:23cv237

KIM SUNG §

REPORT AND RECOMMENDATION 

OF THE UNITED STATES MAGISTRATE JUDGE

Plaintiff James Odom, an inmate of the Gregg County Jail proceeding pro se and in forma 

pauperis, filed this civil rights lawsuit pursuant to 42 U.S.C. § 1983 alleging violations of his 

constitutional rights. The case was referred to the undersigned for findings of fact, conclusions 

of law, and recommendations for the disposition of the case. 

I. Plaintiff’s Allegations

Plaintiff, a pretrial detainee, sues his appointed defense counsel. He alleges that counsel 

refuses to confer with him or to file motions Plaintiff believes are appropriate to file in his state 

criminal case, including a motion for bond and a motion for speedy trial. (Dkt. #1 at 4.) The 

relief he seeks is an order requiring Defendant to file such motions in state court. (Id.)

Plaintiff attaches to his complaint several institutional grievance documents in which he 

complains of denial of access to the law library and a “joint effort” by jail administration to 

somehow violate his rights. (Dkt. #1-1.) But Plaintiff’s handwritten note on the first page of 

these documents specifies that “[t]his packet is for lawsuit against Kim Sung att at law,” and he 

does not name any other defendants in his complaint. (Id. at 1; Dkt. #1 at 1, 3.) Moreover, the 

Court dismissed claims against jail personnel based on similar complaints of lack of access last 

Case 6:23-cv-00237-JCB-JDL Document 5 Filed 05/10/23 Page 1 of 6 PageID #: 19
2

year. See Report and Recommendation, Odom v. Fuller, et al., No. 6:22-129 (E.D. Tex. Apr. 

22, 2022), adopted (E.D. Tex. Jun. 10, 2022). Accordingly, the Court does not construe these 

attachments to reflect any effort to pursue claims against anyone other than Plaintiff’s appointed 

defense counsel.

II. Legal Standards and Preliminary Screening

Plaintiff is a prisoner seeking redress from an officer or employee of a governmental 

entity, so his complaint is subject to preliminary screening pursuant to 28 U.S.C. § 1915A. See 

Martin v. Scott, 156 F.3d 578, 579-80 (5th Cir. 1998) (per curiam). Plaintiff is proceeding in 

forma pauperis, so his complaint is also subject to screening under section 1915(e)(2). Both 

statutes provide for sua sponte dismissal of a complaint—or any portion thereof—if the Court 

finds it frivolous or malicious, if it fails to state a claim upon which relief can be granted, or if 

it seeks monetary relief against a defendant who is immune from such relief. 

A complaint is frivolous if it lacks an arguable basis in law or fact. Samford v. Dretke, 

562 F.3d 674, 678 (5th Cir. 2009). The Fifth Circuit has held that a complaint lacks an arguable 

basis in fact when “the facts alleged are fantastic or delusional scenarios or the legal theory upon 

which a complaint relies is indisputably meritless.” Id. (quoting Harris v. Hegmann, 198 F.3d 

153, 156 (5th Cir. 1999) (internal quotation marks omitted)). In other words, during the initial 

screening under section 1915A, a court may determine that a prisoner’s complaint is frivolous if 

it rests upon delusional scenarios or baseless facts—and dismiss the complaint. See Henry v. Kerr 

County, Texas, 2016 WL 2344231 *3 (W.D. Tex. May 2, 2016) (“A court may dismiss a claim 

as factually frivolous only if the facts alleged are clearly baseless, fanciful, fantastic, delusional, 

or otherwise rise to the level of the irrational or the wholly incredible, regardless of whether 

there are judicially noticeable facts available to contradict them.”) (citing Denton v. Hernandez, 

Case 6:23-cv-00237-JCB-JDL Document 5 Filed 05/10/23 Page 2 of 6 PageID #: 20
3

504 U.S. 25, 32-33 (1992)). 

Moreover, a complaint fails to state a claim upon which relief may be granted where it 

does not allege sufficient facts which, taken as true, state a claim which is plausible on its face 

and thus does not raise a right to relief above the speculative level. See Montoya v. FedEx Ground 

Packaging Sys. Inc., 614 F.3d 145, 149 (5th Cir. 2010) (citing Bell Atl. Corp. v. Twombly, 550 

U.S. 544, 555 (2007)). A claim has factual plausibility when the pleaded factual content allows 

the court to draw reasonable inferences that the defendant is liable for the misconduct alleged. 

See Hershey v. Energy Transfer Partners, L.P., 610 F.3d 239, 245 (5th Cir. 2010); Ashcroft v. 

Iqbal, 556 U.S. 662, 678 (2009). This plausibility standard is not akin to a probability standard; 

rather, the plausibility standard requires more than the mere possibility that the defendant has 

acted unlawfully. Twombly, 550 U.S. at 556 (emphasis supplied). 

All well-pleaded facts are taken as true, but the district court need not accept as true 

conclusory allegations, unwarranted factual inferences, or legal conclusions. See Whatley v. 

Coffin, 496 F. App’x 414 (5th Cir. 2012) (unpublished) (citing Plotkin v. IP Axess Inc., 407 

F.3d 690, 696 (5th Cir. 2005)). Crucially, while the federal pleading rules do not require 

“detailed factual allegations,” the rule does “demand more than an unadorned, the-defendantunlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A pleading offering “labels and 

conclusions” or a “formulaic recitation of the elements of a cause of action” will not suffice, nor 

does a complaint which provides only naked assertions that are devoid of further factual 

enhancement. Id. 

A federal court has an independent duty, at any level of the proceedings, to determine whether 

it properly has subject matter jurisdiction over a case. Ruhgras AG v. Marathon Oil Co., 526 U.S. 

574, 583 (1999) (“[S]ubject-matter delineations must be policed by the courts on their own initiative 

Case 6:23-cv-00237-JCB-JDL Document 5 Filed 05/10/23 Page 3 of 6 PageID #: 21
4

even at the highest level.”); McDonal v. Abbott Labs., 408 F.3d 177, 182 n.5 (5th Cir. 2005) 

(“federal court may raise subject matter jurisdiction sua sponte”).

III. Discussion and Analysis 

Plaintiff’s lawsuit fails for one simple reason: defense counsel is simply not subject to 

suit under Section 1983. To state a civil rights claim under Section 1983, a plaintiff must allege 

facts showing that he has been deprived of a right secured by the Constitution or laws of the 

United States, and that the deprivation was caused by someone acting under color of state 

law. Baker v. McCollan, 443 U.S. 137 (1979). The requirement to show the defendant violated 

his rights while acting under color of state law means the defendant must be a state actor. Moody 

v. Farrell, 868 F.3d 348, 351 (5th Cir. 2017); Whitley v. Hanna, 726 F.3d 631, 638 (5th Cir. 

2013). Private individuals are not state actors subject to suit under Section 1983 unless their 

conduct is “fairly attributable to the state.” Moody, 868 F.3d at 352; see also Filarsky v. Delia, 

566 U.S. 377, 383 (2012) (“Section 1983 provide a cause of action against any person who 

deprives an individual of federally guaranteed rights ‘under color’ of state law. 42 U.S.C. 

§ 1983. Anyone whose conduct is ‘fairly attributable to the State’ can be sued as a state actor 

under § 1983.”). To establish fair attribution to the State,

[T]he plaintiff must show (1) that the deprivation was caused by the exercise of 

some right or privilege created by the state or by a rule of conduct imposed by 

the state, or by a person for whom the state is responsible, and (2) that the party 

charged with the deprivation may fairly be said to be a state actor. 

Moody, 868 F.3d at 352 (citing Priester v. Lowndes Cnty., 354 F.3d 414, 432 (5th Cir. 2004)). 

Finally, “[d]eciding whether a deprivation of a protected right is fairly attributable to the State 

begins by identifying the specific conduct of which the plaintiff complains.” Cornish v. Corr. 

Servs. Corp., 402 F.3d 545, 550 (5th Cir. 2005) (internal quotations and citation omitted). 

The Fifth Circuit has summarized the different tests under which a private party can be 

Case 6:23-cv-00237-JCB-JDL Document 5 Filed 05/10/23 Page 4 of 6 PageID #: 22
5

deemed to have acted under color of state law:

According to the public function test, a private entity acts under color of state law 

when the entity performs a function which is “exclusively reserved to the state.” 

Flagg Bros., 436 U.S. at 157–58 (internal quotations omitted); Wong v. Stripling, 

881 F.2d 200, 202 (5th Cir. 1989). The state compulsion (or coercion) test holds 

the state responsible “for a private decision only when [the state] has exercised 

coercive power or has provided such significant encouragement, either overt or 

covert, that the choice must in law be deemed to be that of the State.” Blum v. 

Yaretsky, 457 U.S. 991, 1004 (1982) (internal quotations omitted). Similarly, the 

nexus or state action test finds state action where the state has “so far insinuated 

itself into a position of interdependence with the [private actor] that it was a joint 

participant in the enterprise.” Jackson v. Metropolitan Edison Co., 419 U.S. 345, 

357–58 (1974); see also Lugar, 457 U.S. at 941–42 (1982).

Richard v. Hoechst Celanese Chem. Grp., Inc., 355 F.3d 345, 352 (5th Cir. 2003).

But a private person, including a defense attorney, is not a state actor under 42 U.S.C. 

§ 1983. Polk Cty. v. Dodson, 454 U.S. 312, 318 (1981) (“[T]he Courts of Appeals are agreed 

that a lawyer representing a client is not, by virtue of being an officer of the court, a state actor 

‘under color of state law’ within the meaning of § 1983.”) Even appointed counsel who are paid 

by the government for representing their clients are not state actors for Section 1983’s purposes. 

Id. at 321. The representation of a client is not a function reserved to the state, and counsel’s 

decisions about how to proceed in such representation are not matters in which the state is 

involved. Accordingly, Plaintiff’s defense attorney is not a state actor subject to suit under 

Section 1983, even assuming the truth of Plaintiff’s allegations against him.

For the reasons set forth above, Plaintiff’s complaint fails to state a claim for which relief 

can be granted under Section 1983. Traditionally, district courts should permit a pro se plaintiff 

an opportunity to amend his complaint or claim before dismissing the case. However, giving a 

plaintiff an opportunity to amend is not necessary if he has pleaded his “best case,” such that an 

amended claim would remain frivolous. See Norman v. Tex. Court of Criminal Appeals, 582 F. 

App’x 430, 431 (Mem) (5th Cir. 2014) (unpublished); Brewster v. Dretke, 587 F.3d 764, 767-

Case 6:23-cv-00237-JCB-JDL Document 5 Filed 05/10/23 Page 5 of 6 PageID #: 23
6

68 (5th Cir. 2009). There is no plausible amendment to Plaintiff’s complaint that would render 

his criminal defense attorney a state actor, and judicial economy dictates against inviting a futile 

amendment in this case.

RECOMMENDATION

Accordingly, the undersigned recommends that Plaintiff=s complaint be dismissed with 

prejudice pursuant to 28 U.S.C. §§ 1915A(b)(1) and 1915(e)(2)(b).

Within fourteen (14) days after receipt of the Magistrate Judge’s Report, any party may 

serve and file written objections to the findings and recommendations contained in the Report.

A party’s failure to file written objections to the findings, conclusions and 

recommendations contained in this Report within fourteen days after being served with a copy 

shall bar that party from de novo review by the district judge of those findings, conclusions and 

recommendations and, except on grounds of plain error, from appellate review of unobjected-to 

factual findings and legal conclusions accepted and adopted by the district court. Douglass v. 

United Servs. Auto. Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).

So ORDERED and SIGNED this 10th day of May, 2023.

Case 6:23-cv-00237-JCB-JDL Document 5 Filed 05/10/23 Page 6 of 6 PageID #: 24