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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

RAY CHRIS MOBLEY,

Plaintiff,

v. CASE NO. 5:11-cv-181-RS-GRJ

RUSSELL K. RAMEY,

Defendant.

_____________________________/

REPORT AND RECOMMENDATION

Plaintiff initiated this case by filing a complaint pursuant to 42 U.S.C § 1983, and

seeks leave to proceed as a pauper. Docs. 1 and 2. Plaintiff was an inmate in the

Putnam County, Georgia, jail at the time the Complaint was filed, but he has since been

released. The Court finds that leave to proceed as a pauper should be granted for the

limited purpose of dismissing this case pursuant to 28 U.S.C. § 1915(b)(2)(B)(ii) for

failure to state a claim upon which relief can be granted. 

Plaintiff’s Claims

The Complaint stems from unspecified criminal charges against Plaintiff in Bay

County, Florida. Plaintiff alleges that Defendant Ramey was the fifth Public Defender

appointed to represent Plaintiff in connection with the charges. Ramey was allowed to

withdraw from the case due to a conflict of interest, and another Public Defender was

appointed to represent Plaintiff. The charges against Plaintiff were dismissed. Plaintiff

alleges that while Ramey represented him, Defendant failed to file speedy trial and

other motions on Plaintiff’s behalf, and failed to act on Plaintiff’s request for legal

assistance in connection with civil claims that Plaintiff wanted to pursue against local

law enforcement officers. Plaintiff alleges that Defendant is “guilty of negligent

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malpractice.” Doc. 1.

Discussion

To state a claim for relief that will survive screening by the Court, a plaintiff must

make factual allegations that are “enough to raise a right to relief above the speculative

level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The complaint “must

contain something more . . . than . . . a statement of facts that merely creates a

suspicion [of] a legally cognizable right of action.” Id.; Ashcroft v. Iqbal, ___ U.S. ___,

129 S.Ct. 1937, 1951-53 (2009) (Twombly “expounded the pleading standard for all civil

actions,” and conclusory allegations that “amount to nothing more than a formulaic

recitation of the elements of a constitutional . . . claim” are “not entitled to be assumed

true,” and, to escape dismissal, complaint must allege facts sufficient to move claims

“across the line from conceivable to plausible.”).

A pro se litigant's allegations are entitled to the benefit of liberal construction.

Haines v. Kerner, 404 U.S. 519, 520 (1972). However, a court does not have “license .

. . to rewrite an otherwise deficient pleading [by a pro se litigant] in order to sustain an

action.” GJR Investments v. County of Escambia, Fla., 132 F.3d 1359, 1369 (11th

Cir.1998) (overruled on other grounds by Iqbal).

In order to prevail on a civil rights action under § 1983, a plaintiff must show that

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

City of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir.2001). “[T]he

under-color-of-state-law element of § 1983 excludes from its reach merely private

conduct, no matter how discriminatory or wrongful.” Focus on the Family v. Pinellas

Suncoast Transit Auth., 344 F.3d 1263, 1277 (11th Cir.2003) (citation and quotation

Case No: 5:11-cv-181-RS-GRJ

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marks omitted). “[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 (1981).

Plaintiff’s malpractice claims are based on allegations that Defendant failed to

file various motions as Plaintiff’s counsel during the state criminal proceedings. Thus,

these claims cannot proceed under § 1983 because Defendant was not acting under

color of state law. Polk County, 454 U.S. at 325. As Plaintiff’s criminal defense

attorney, Defendant was under no obligation to pursue civil cases on Plaintiff’s behalf,

and Defendant’s refusal to do so plainly cannot give rise to liability as a state actor

under § 1983. 

Conclusion

For the foregoing reasons, it is ORDERED AND ADJUDGED that Plaintiff’s

motion for leave to proceed as a pauper, Doc. 2, is GRANTED. It is respectfully

RECOMMENDED that this case be DISMISSED pursuant to 28 U.S.C §

1915(e)(2)(B)(ii) for failure to state a claim upon which relief may be granted.

IN CHAMBERS this 29 day of December 2011. 

th

s/Gary R. Jones 

GARY R. JONES

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.

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