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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

STEPHEN FREDRIC GANSTINE,

Plaintiff,

v. CASE NO. 4:11-cv-00129-MP -WCS

ARMANDO GARCIA, JOHNNY WILLIAMS,

Defendants.

_____________________________/

O R D E R

This matter is before the Court on Doc. 6, Report and Recommendation of the Magistrate

Judge, which recommends that Plaintiff's complaint, Doc. 1, be dismissed for failure to state a

claim upon which relief may be granted. Plaintiff filed a motion for reconsideration of the report

and recommendation, Doc. 6, and a motion to amend the complaint. The Magistrate Judge

granted the motion for reconsideration but concluded that the Plaintiff has not provide a basis for

vacating the prior report and recommendation. The Magistrate Judge issued a second report and

recommendation, Doc. 9, again recommending that the Plaintiff’s complaint be dismissed for

failure to state a claim upon which relief may be granted and that Plaintiff’s motion for leave to

amend be denied as futile. The Plaintiff filed a second motion for reconsideration, Doc. 10,

which the Magistrate Judge construed as timely objections to the report and recommendations. 

This Court reviews objected-to material de novo.

Plaintiff has attempted to sue Johnny Williams, the County Administrator for Gadsden

County, Florida, and Armando Garcia, his defense attorney, for civil rights violations under 42

U.S.C. § 1983. Plaintiff contends Defendant Williams and the County are responsible for the

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actions of the prosecutor, which he claims, violated his constitutional rights by commenting on

his prior silence and challenging his version of events which he testified to during the trial. 

Plaintiff also contends that Defendant Garcia, his court-appointed defense attorney, provided

ineffective assistance of counsel.

Plaintiff has presented no allegations of unlawful action by either Defendant Williams or

Gadsen County, Florida. Because the doctrine of respondeat superior does not provide a basis

for recovery under § l983, the complaint must be dismissed as to Defendant Williams. See

Harvey v. Harvey, 949 F.2d 1127, 1129 (11th Cir. 1992) (citing Monell v. Department of Social

Services, 436 U.S. 658, 98 S. Ct. 2018 (1978)). For the same reason, Plaintiff’s request to amend

the complaint to include Gadsden County, Florida is futile.

Furthermore, Plaintiff cannot bring a claim against Defendant Garcia because

representation by public defenders or retained criminal defense attorneys is not "state action"

and, thus, gives rise to no liability pursuant to § 1983 absent a conspiracy with state actors. See

Slavin v. Curry, 574 F.2d 1256, 1265 (5th Cir. 1976); Richardson v. Fleming, 651 F.2d 366, 371

(5th Cir. 1981); Wahl v. McIver, 773 F.2d 1169, 1173 (11th Cir. 1985).

As the Magistrate Judge concluded, the Plaintiff cannot bring claims against any of the

Defendants named. Furthermore, the Plaintiff lacks a sufficient basis to bring the claims desired

in the request for leave to file an amended complaint. Accordingly, it is hereby

ORDERED AND ADJUDGED:

1. The Report and Recommendations of the Magistrate Judge, Docs. 6 and 9, are

ADOPTED and incorporated herein.

2. Plaintiff’s complaint, Doc. 1, is DISMISSED for failure to state a claim upon

which relief may be granted.

Case No: 4:11-cv-00129-MP -WCS

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3. Plaintiff’s motion to amend the complaint Doc. 8, is DENIED as futile.

DONE AND ORDERED this 25th day of May, 2011

 s/Maurice M. Paul 

 Maurice M. Paul, Senior District Judge

Case No: 4:11-cv-00129-MP -WCS

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