1 28 U.S.C. § 1915(e)(2) provides, in pertinent part:

Notwithstanding any filing fee, or any portion thereof, that may

have been paid, the court shall dismiss the case at any time if the

court determines that –

. . .

(B) the action or appeal –

. . .

(ii) fails to state a claim upon which relief may be granted . . . 

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

THOMAS J. EARLS,

Plaintiff,

v.

DAVE HERRINGTON,

Defendant.

/

Case Number: 5:09-CV-13570

HON. JOHN CORBETT O’MEARA

ORDER OF SUMMARY DISMISSAL

Plaintiff Thomas J. Earls, a state prisoner incarcerated at the Ojibway Correctional

Facility in Marensico, Michigan, has filed a pro se civil rights complaint pursuant to 42 U.S.C. §

1983. Plaintiff is proceeding without prepayment of the filing fee under 28 U.S.C. § 1915(a)(1). 

After careful consideration, the Court dismisses the complaint, pursuant to 28 U.S.C. §

1915(e)(2),1 because Plaintiff fails to state a claim upon which relief may be granted. 

In his complaint, Plaintiff alleges that defendant attorney Dave Herrington rendered

ineffective assistance in his representation of Plaintiff in a criminal trial. Plaintiff argues that

defendant Herrington was aware that the circuit court judge who presided over Plaintiff’s

criminal trial had an intimate relationship with the victim’s wife. Plaintiff maintains that, despite

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this alleged relationship, defendant Herrington refused to file a recusal motion or place an

objection on the record. Further, Plaintiff argues that defendant Herrington allowed known false

testimony to stand uncorrected and otherwise failed to present an effective defense by failing to

present exculpatory evidence. Plaintiff alleges that defendant Herrington did so in collusion with

the prosecutor and judge. Plaintiff seeks compensatory and punitive damages. 

The essential elements of a claim under 42 U.S.C. § 1983 are that the conduct

complained of: (1) was committed by a person acting under color of state law, and (2) deprived

plaintiff of rights, privileges or immunities secured by the Constitution or laws of the United

States. Parratt v. Taylor, 451 U.S. 527, 535 (1981). “Absent either element, a section 1983

claim will not lie.” Christy v. Randlett, 932 F.2d 502, 504 (6th Cir. 1991). To be a “state actor,”

a party’s actions must be “‘fairly attributable to the state.’” Ellison v. Garbarino, 48 F.3d 192,

195 (6th Cir. 1995), quoting Lugar v. Edmundson Oil Co., 457 U.S. 922, 937 (1982). 

Attorneys representing clients in criminal actions do not act under color of law for § 1983

purposes, even where such attorneys are appointed by the government to represent the criminal

defendant. Polk County v. Dodson, 454 U.S. 312 (1981). Thus, Herrington was not acting under

color of state law in acting as Plaintiff’s defense attorney. However, “private citizens acting in

concert with state officials may be subject to § 1983 liability.” Horton v. Martin, 137 F. App’x

773, 774 (6th Cir. 2005), citing Dennis v. Sparks, 449 U.S. 24, 27-28 (1980). Plaintiff asserts

that Herrington acted in concert with the prosecutor and trial court judge to deny him a fair trial. 

Plaintiff’s allegation that Herrington engaged in a conspiracy with the state actors was not pled

with a sufficient degree of specificity. Accordingly, Plaintiff fails to state a claim upon which

relief may be granted under 42 U.S.C. § 1983. See id. 

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To the extent that Plaintiff claims that his conviction is invalid because he received

ineffective assistance of counsel, he also fails to state a claim upon which relief may be granted

under 42 U.S.C. § 1983. A judgment in favor of Plaintiff on this issue would necessarily imply

the invalidity of his continued confinement. In Heck v. Humphrey, 512 U.S. 477, 486-87 (1994),

the Supreme Court held such claims to be improper under 42 U.S.C. § 1983:

[W]hen a state prisoner seeks damages in a § 1983 suit, the district court must

consider whether a judgment in favor of the plaintiff would necessarily imply the

invalidity of his conviction or sentence; if it would, the complaint must be

dismissed unless plaintiff can demonstrate that the conviction or sentence has

already been invalidated.

Id. at 486-87. A petition for a writ of habeas corpus provides the appropriate vehicle for

challenging the fact or duration of a prisoner’s confinement. Preiser v. Rodriguez, 411 U.S. 475,

486-87 (1973). Thus, if Plaintiff wishes to assert a claim that he was deprived of his right to the

effective assistance of counsel, he must do so by filing a habeas corpus petition under 28 U.S.C.

§ 2254. The Court declines to construe Plaintiff’s complaint as a habeas corpus petition because

he does not allege that his claims are exhausted, see Parker v. Phillips, 27 F. App’x 491, 494

(6th Cir. 2001). Further, the Court declines to construe the complaint as a habeas corpus petition

because Plaintiff may want to assert additional or different claims for relief in a habeas corpus

petition than those contained in the complaint. 

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For the foregoing reasons, the complaint is DISMISSED pursuant to 28 U.S.C. §

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

SO ORDERED. 

s/John Corbett O’Meara 

United States District Judge

Date: September 28, 2009

I hereby certify that a copy of the foregoing document was served upon the parties of

record on this date, September 28, 2009, using the ECF system and/or ordinary mail.

s/William Barkholz

Case Manager

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