Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

SEAN REILLY,

Plaintiff,

vs. Case No. 4:10cv69-WS/WCS

PAUL M. VILLENEUVE,

Defendant.

 /

REPORT AND RECOMMENDATION

Plaintiff, an inmate proceeding pro se and in forma pauperis, has filed a civil

rights complaint under 42 U.S.C. § 1983. Doc. 1. In a separate order entered this day,

Plaintiff's in forma pauperis motion, doc. 2, has been granted. Because Plaintiff lacks

sufficient funds in his inmate bank account, he has not been required to pay an initial

partial filing fee and the complaint has now been reviewed pursuant to 28 U.S.C. §

1915A. 

Plaintiff has named only one Defendant, Paul M. Villeneuve, an attorney in

private practice. Plaintiff states he is suing the Defendant "for malpractice, negligence,

breach of contract and deliberate indifference . . . ." Doc. 1, p. 5. Plaintiff contends that
Page 2 of 4

Case No. 4:10cv69-WS/WCS

he contracted with the Defendant to represent him in several, separate criminal cases

and after the first case went to trial, the Defendant requested additional money. Id.

When Plaintiff's family could not pay the additional amount over the fifteen thousand

originally paid, Plaintiff claims the Defendant "withdrew from all the remaining cases and

abandoned" him. Id. Plaintiff alleges he is now defending himself in his remaining

cases. Id. Plaintiff contends that beyond abandoning him due to lack of funds, the

Defendant withdrew over frustration that Plaintiff did not want to accept the State's plea

offer. Id. In short, Plaintiff contends the Defendant "was negligent because he did not

move to dismiss" a case, and failed to complete his part of their agreement. Id., at 6. 

Plaintiff alleges the Defendant's abandonment cause him "extensive" harm and Plaintiff

seeks just compensation. Id., at 6-7.

"To state a claim under § 1983, a plaintiff must allege facts showing that the

defendant's act or omission, done under color of state law, deprived him of a right,

privilege, or immunity protected by the Constitution or laws of the United States." 

Emory v. Peeler, 756 F.2d 1547, 1554 (11th Cir. 1985); Dollar v. Haralson County, 704

F.2d 1540, 1542-43 (11th Cir.), cert. denied, 464 U.S. 963, 104 S. Ct. 399, 78 L. Ed. 2d

341 (1983). In other words, Plaintiff must allege that the Defendant "deprived him of a

right secured by the 'Constitution and laws' of the United States" and that the Defendant

did so "under color of any statute, ordinance, regulation custom, or usage of any State. .

. ." Fadjo v. Coon, 633 F.2d 1172, 1174-1175 (5th Cir. 1981), quoting Adickes v. S. H.

Kress & Co., 398 U.S. 144, 150, 90 S. Ct. 1598, 1604, 26 L. Ed. 2d 142 (1970); see

Paisey v. Vitale In and For Broward Co., 807 F.2d 889, 892 (11th Cir. 1986); Lugar v.

Edmondson Oil Co., 457 U.S. 922, 930, 102 S. Ct. 2744, 2750, 73 L. Ed. 2d 482 (1981);
Page 3 of 4

Case No. 4:10cv69-WS/WCS

Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 155, 98 S. Ct. 1729, 1732, 56 L. Ed. 2d

185 (1978). Plaintiff's complaint fails to allege facts sufficient to constitute a constitution

deprivation under § 1983. 

Representation by public defenders or private attorneys retained to provide

criminal defense is not "state action" and thus gives rise to no liability pursuant to §

1983. Richardson v. Fleming, 651 F.2d 366, 371 (5th Cir. 1981); Slavin v. Curry, 574

F.2d 1256, 1265 (5th Cir. 1976); Wahl v. McIver, 773 F.2d 1169, 1173 (11th Cir. 1985). 

Plaintiff's complaint fails to state a claim because the Defendant is not a "state actor."

The actions of defense counsel in representing Plaintiff are the acts of a private

party and the allegations support nothing more than a state law claim. Even if he had

not paid for legal representation and had court-appointed counsel, the law is clear that

"when performing a lawyer's traditional functions as counsel to a defendant in a criminal

proceeding," a public defender is not a "state actor" for purposes of § 1983. Polk

County v. Dodson, 454 U.S. 312, 325, 102 S. Ct. 445, 453, 70 L. Ed. 2d 509 (1981)

(holding that under the facts of this case, a public defender was act acting "under color

of state law" but declining to hold that a public defender never acts in that role.)

Perhaps Plaintiff has a claim for legal malpractice or breach of contract, see

Weiner v. Prudential Mortgage Investors, Inc., 557 So. 2d 912 (Fla. 3d DCA 1990), but

no federal constitutional claims are evident. Diversity of citizenship does not exist, and

this court lacks subject matter jurisdiction of any potential claim, whether federal or

state. This case should be dismissed. 
Page 4 of 4

Case No. 4:10cv69-WS/WCS

In light of the foregoing, it is respectfully RECOMMENDED that Plaintiff's

complaint, doc. 1, be DISMISSED for lack of jurisdiction as to any state claim and for

failure to state a claim as to any federal claim.

IN CHAMBERS at Tallahassee, Florida, on March 10, 2010.

 s/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 14 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 14 days

after being served with a copy thereof. Failure to file specific objections limits the

scope of review of proposed factual findings and recommendations.