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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

DANSHAYE WILLIAMS,

Plaintiff,

vs. Case No. 4:10cv463-WS/WCS

JUSTIN WARD,

Defendant.

 /

REPORT AND RECOMMENDATION

Plaintiff, an inmate proceeding pro se, has filed a civil rights complaint under 42

U.S.C. § 1983. Doc. 1. Plaintiff's in forma pauperis motion, doc. 2, has been granted in

a separate order entered this day and, thus, the complaint has been reviewed pursuant

to 28 U.S.C. § 1915A. 

Plaintiff's complaint is brought against his criminal defense lawyer, who is an

assistant public defender. Doc. 1. Plaintiff is currently detained at the Leon County Jail

and it appears as though he is still facing criminal charges. Id. Plaintiff complains in

this case that the Defendant does not have his best interest in mind, that he is trying to

get Plaintiff to accept a plea offer, and is not properly representing Plaintiff. Id. 
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This case cannot proceed. Plaintiff initiated this case as a civil rights action

under 42 U.S.C. § 1983. Doc. 1. Yet § 1983 imposes liability on one who, "acting

under color of state law, deprives a person of 'any rights, privileges, or immunities

secured by the Constitution and laws.'" Doe 1-13 By and Through Doe, Sr. 1-13 v.

Chiles, 136 F.3d 709, 713 (11th Cir. 1998). Thus, to obtain relief, a plaintiff must show

that he was deprived of a federal right by a person acting under color of state law. 

Patrick v. Floyd Medical Center, 201 F.3d 1313, 1315 (11th Cir. 2000). 

Representation by public defenders or even retained attorneys of persons

accused of criminal offenses is not "state action" and thus gives rise to no liability

pursuant to § 1983 absent a conspiracy with state actors. 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). 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).

Plaintiff has not demonstrated the existence of either a constitutional violation or

that any act was taken by a "state actor" for purposes of § 1983.1

 The actions of

defense counsel in representing Plaintiff are the acts of a private party and this case

must be dismissed for failure to state a claim. Moreover, this Court has no authority to

appoint another attorney to represent Plaintiff against pending state criminal charges.

1

 Plaintiff fails to even allege what constitutional right he believes has been

violated. Doc. 1, p. 7.

Case No. 4:10cv463-WS/WCS
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In light of the foregoing, it is respectfully RECOMMENDED that Plaintiff's

complaint, doc. 1, be DISMISSED for failure to state a claim upon which relief may be

granted pursuant to 28 U.S.C. § 1915(e)(2), and that the order adopting this report and

recommendation direct the Clerk of Court to note on the docket that this cause was

dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

IN CHAMBERS at Tallahassee, Florida, on November 2, 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.

Case No. 4:10cv463-WS/WCS