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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

EMMETT STROMAS,

Plaintiff,

vs. Case No.: 3:10cv346/WS/MD

JAMES OWENS, et al. 

Defendants.

_____________________________________________________________________

ORDER and

REPORT AND RECOMMENDATION

This cause is before the court upon the pro se plaintiff’s civil rights complaint

filed pursuant to 42 U.S.C. § 1983 (doc. 1), and his motion to proceed in forma

pauperis (doc. 2). Good cause having been shown, leave to proceed in forma

pauperis will be granted. However, upon review of plaintiff’s complaint, the court

concludes that plaintiff has not presented an actionable claim and that dismissal of

this case is warranted. 

Since plaintiff is proceeding in forma pauperis, the court may dismiss the case

if satisfied that the action is “(i) frivolous or malicious; (ii) fails to state a claim on

which relief may be granted; or (iii) seeks monetary relief against a defendant who

is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). The court must read

plaintiff’s pro se allegations in a liberal fashion. Haines v. Kerner, 404 U.S. 519, 92

S.Ct. 594, 30 L.Ed.2d 652 (1972). A complaint is frivolous under section 1915(e)

“where it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490

U.S. 319, 325, 109 S.Ct. 1827, 1833, 104 L.Ed.2d 338 (1989). Dismissals on this

ground should only be ordered when the legal theories are “indisputably meritless,”

Id. at 327, 109 S.Ct. at 1833, or when the claims rely on factual allegations that are

“clearly baseless.” Denton v. Hernandez, 504 U.S. 25, 31, 112 S.Ct. 1728, 1733, 118
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L.Ed.2d 340 (1992). Dismissals for failure to state a claim are governed by the same

standard as Federal Rule of Civil Procedure 12(b)(6). Mitchell v. Farcass, 112 F.3d

1483, 1485 (11th Cir. 1997). In determining whether the complaint states a claim upon

which relief may be granted, the court accepts all the factual allegations in the

complaint as true and evaluates all inferences derived from those facts in the light

most favorable to the plaintiff. Hunnings v. Texaco, Inc., 29 F.3d 1480, 1483 (11th Cir.

1994). The complaint may be dismissed if the facts as pleaded do not state a claim

to relief that is plausible on its face. See Bell Atl. Corp. v. Twombly, 550 U.S. 544,

127 S.Ct. 1955, 1968-69, 1974, 167 L.Ed.2d 929 (May 21, 2007) (retiring the negativelyglossed “no set of facts” language previously used to describe the motion to

dismiss standard and determining that because plaintiffs had “not nudged their

claims across the line from conceivable to plausible, their complaint must be

dismissed” for failure to state a claim). A complaint is also subject to dismissal

under Rule 12(b)(6) when its allegations – on their face – show that an affirmative

defense bars recovery on the claim. Marsh v. Butler County, Ala., 268 F.3d 1014,

1022 (11th Cir. 2001).

Plaintiff is a pre-trial detainee currently incarcerated at the Escambia County

Jail. His complaint names two defendants: James Owens, Florida’s Public Defender

for the First Judicial Circuit; and Brandon Morris, Assistant Public Defender. (Id., p.

2). Plaintiff claims the defendants are violating his rights under the Florida and

United States constitutions in their representation of plaintiff in a state criminal case. 

Specifically, plaintiff asserts the defendants failed to acknowledge or respond to his

correspondence; refused to discuss and present to the court evidence “in

[plaintiff’s] favor”; refused to “use compulsory process” to obtain certain

documentary evidence; refused to depose certain individuals; “failed to obtain victim

tapes”; failed to investigate a knife allegedly used in the crime; failed to obtain “prior

domestic violence records” of “the witness”; failed to obtain evidence of “abusive

aggressive behavior” by the witness at her former place of employment; and failed

to request plaintiff’s pre-trial release. (Doc. 1, pp. 5-6). Plaintiff further complains

that after a period of self-representation, the defendants were re-appointed to his

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case and failed to advise the court that plaintiff had “irreconcilable differences” with

them and did not want their representation. (Id., p. 7). As relief, plaintiff seeks the

following: “Declare that defendants acted under color of authority of State of Florida

by depriving me of civil rights or by failing to act to prevent deprivation of civil

rights, costs of suit, if applicable attorney’s fees; demand for trial by jury.” (Id.). 

Taking the allegations of the complaint as true and construing them in the

light most favorable to the plaintiff, they fail to state a plausible § 1983 claim against

the named defendants. In any section 1983 action, the initial inquiry must focus on

whether two essential elements are present:

1. whether the conduct complained of was committed by a person

acting under color of state law; and

2. whether this conduct deprived a person of rights, privileges, or

immunities secured by the Constitution or laws of the United States.

Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420, 428 (1981),

overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88

L.Ed.2d 662 (1986); Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001). 

With regard to the first requirement, it is well-settled that “the party charged with the

deprivation must be a person who may fairly be said to be a state actor.” Patrick v.

Floyd Med. Ctr., 201 F.3d 1313, 1315 (11th Cir. 2000). 

The United States Supreme Court has held that “a public defender does not

act under color of state law when performing a lawyer’s traditional functions as

counsel to a defendant in a criminal proceeding.” Polk County v. Dodson, 454 U.S.

312, 325, 102 S.Ct. 445, 453, 70 L.Ed.2d 509 (1981). Plaintiff’s § 1983 claims against

Public Defender Owens and Assistant Public Defender Morris fall squarely under

Dodson. His claims are based on the defendants’ alleged inadequate representation

of plaintiff and primarily involve counsel’s decisions concerning the investigation

and preparation of plaintiff’s case for trial. Such decisions represent the exercise

of counsel’s independent professional judgment and, even when incorrectly made,

cannot be considered actions under color of state law. Because the defendants

were not acting under color of state law when they engaged in the alleged

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unconstitutional conduct, plaintiff’s claims against them cannot proceed under §

1983 and should be dismissed. Dodson, 454 U.S. at 325, 102 S.Ct. at 453. 

Having dismissed plaintiff’s federal claims, the undersigned recommends that

the court, in its discretion pursuant to 28 U.S.C. § 1367(c)(3), decline to exercise

supplemental jurisdiction over plaintiff’s state law claims, including those arising

under the Florida Constitution. See United Mine Workers of America v. Gibbs, 383

U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966). 

Accordingly, it is ORDERED:

Plaintiff’s motion to proceed in forma pauperis (doc. 2) is GRANTED for the

limited purpose of dismissing this action. 

And it is respectfully RECOMMENDED:

1. That plaintiff’s federal claims be DISMISSED WITH PREJUDICE pursuant

to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief can be

granted.

2. That plaintiff’s state law claims be DISMISSED WITHOUT PREJUDICE. 

3. That the clerk be directed to close this file. 

At Pensacola, Florida, this 14th day of September, 2010.

 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed

within fourteen days after being served a copy hereof. Any different deadline that

may appear on the electronic docket is for the court’s internal use only, and does not

control. A copy of any objections shall be served upon any other parties. Failure to

object may limit the scope of appellate review of factual findings. See 28 U.S.C. §

636; United States v. Roberts, 858 F.2d 698, 701 (11th Cir. 1988).

Case No: 3:10cv346/WS/MD