Causey v. Newcomb

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS CENTRAL DIVISION DOUGLAS EUGENE CAUSEY PLAINTIFF ADC #093679 V. CASE NO. 4:21-cv-01240 JM ROBERT ALSTON NEWCOMB DEFENDANT ORDER Plaintiff Douglas Causey, in custody at the Grimes Unit of the Arkansas Division of Correction, paid the filing fee and filed a pro se Complaint pursuant to 42 U.S.C. § 1983 , challenging his trial counsel’s effectiveness. (Doc. 1, 5). His Complaint, however, will be dismissed for failure to state a claim on which relief may be granted. I. Screening Federal law requires courts to screen in forma pauperis complaints, 28 U.S.C. § 1915 (e), and prisoner complaints seeking relief against a governmental entity, officer, or employee. 28 U.S.C. § 1915A. Claims that are legally frivolous or malicious; that fail to state a claim for relief; or that seek money from a defendant who is immune from paying damages should be dismissed before the defendants are served. 28 U.S.C. § 1915 (e); 28 U.S.C. § 1915A. A complaint must contain enough facts to state a claim to relief that is plausible on its face, not merely conceivable. Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 570 (2007). However, a pro se plaintiff’s allegations must be construed liberally. Burke v. North Dakota Dept. of Corr. & Rehab., 294 F.3d 1043, 1043-1044 (8th Cir.2002) (citations omitted). II. Discussion Causey retained counsel Robert Newcomb to represent him in a number of cases including as defense counsel in two state criminal matters. (Doc. 1 at 1); See State v. Causey, 60-CR-182487 and State v. Causey, 60-CR-19-1595. In this suit, Causey says Newcomb never effectively represented him and challenges that representation in a number of ways. A review of Arkansas’s case management system reveals that both state criminal cases remain open. Causey brings suit under 42 U.S.C. § 1983 alleging that Newcomb provided ineffective counsel. To state a claim for relief under § 1983, the complaint must allege that a person acting under the color of state law deprived the plaintiff of a constitutional or federally-protected statutory right. American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). Defense counsel in a criminal case, whether appointed or retained, is not a state actor. See Polk Cty. v. Dodson, 454 U.S. 312, 318 (1981); Chambers v. Kaplan, 648 F.2d 1193, 1194 (8th Cir. 1981). As a result, Newcomb is a private actor. To be subject to a claim under § 1983, “a private actor must be a ‘willful participant in joint activity with the State’ in denying plaintiff’s constitutional rights.” Magee v. Trustee of Hamline University, Minn., 747 F.3d 532, 536 (8th Cir. 2014) (internal citation omitted). Causey has made no such showing. To the extent Causey also made state-law malpractice or breach of contract claims, this Court may decline to exercise supplemental jurisdiction over those claims if no live federal claims remain in this case. 28 U.S.C. § 1367 . “‘[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine . . . will point towards declining to exercise jurisdiction over the remaining state-law claims.’” King v. City of Crestwood, Missouri, 899 F.3d 643, 651 (8th Cir. 2018) (internal citation omitted). Having already determined that Causey’s federal claims must be dismissed, the Court declines to retain jurisdiction over his state-law claim. Causey’s claims are dismissed without prejudice for failure to state a claim upon which relief may be granted. The Court recommends this dismissal count as a “strike” for purposes of 28 U.S.C. § 1915 (g). This Court certifies that, pursuant to 28 U.S.C. § 1915 (a)(3), an in forma pauperis appeal would not be taken in good faith. IT IS SO ORDERED this 1st day of February, 2022. UL STA JUDGE