United States District Court, D. Maryland
JOSEPH G. ROBERTS, Plaintiff
JOHN HENDERSON, Defendant
K. Bredar United States District Judge.
above-captioned Complaint was filed on November 2, 2016,
together with a Motion for Leave to Proceed in Forma
Pauperis. Plaintiff Joseph G. Roberts seeks $1 million in
damages and alleges that Cecil County Public Defender John
Henderson "violated my rights to defend myself by
entering his appearance in my Cecil County District Court
Case (0K76825) in Septemb [sic] 2016, " and
"advocated for the State['s] Attorney by getting my
case postpone[d]." (ECF No. 1 at p. 3.) The Complaint
shall be dismissed for the reasons set forth below.
electronic docket for District Court Case 0K00076825,
charging Roberts with possession of a drug other than
marijuana, reveals only that an "attorney appearance
[was] filed" on August 15, 2016, that Roberts's
trial was postponed on September 19, 2016, and that a motion
to strike appearance was filed on October 27, 2016, and
denied by the district court on November 4,
2016. The docket also reveals that the Maryland
Office of the Public Defender was in some way involved in
Roberts's other pending District Court criminal cases,
including No. 3K00076940, charging Roberts with disorderly
conduct, which was moved to the stet docket on October 26,
2016,  and No. 2K00076946, involving the
consumption of alcoholic beverages in public, to which
Roberts pleaded guilty on October 19, 2016. Finally, the
court notes that Roberts, who was not held prior to trial on
the above-listed misdemeanors, was arrested on October 5,
2016, and charged with animal cruelty, resisting arrest, and
possession of drug paraphernalia in District Court Criminal
Case No. D032CR16000667. In that case, Roberts was held one day
until he posted bail. He is represented by Assistant Public
Defender Thomas E.L. Klenk, and trial is scheduled for
November 21, 2016.
court may preliminarily review the claims in Plaintiffs
Complaint and dismiss it pursuant to 28 U.S.C. § 1915(e)
prior to service if satisfied that it has no factual or legal
basis and it is frivolous on its face. See Neitzke v.
Williams, 490 U.S. 319, 328 (1989); see also Denton
v. Hernandez, 504 U.S. 25, 33 (1992); Cochran v.
Morris, 73 F.3d 1310, 1314 (4th Cir. 1996). The instant
Complaint shall be dismissed as frivolous pursuant to this
threshold requirement for filing an action pursuant to 42
U.S.C. § 1983 is that the defendant must be acting
"under color of state law. A defense attorney, whether
privately retained or publicly appointed, is not deemed to be
acting under state law and is therefore not amenable to suit
under § 1983. There is no state action in the conduct of
public defenders and attorneys appointed by the State of
Maryland. See Polk County v. Dodson, 454 U.S. 312
(1981); Hall v. Quillen, 631 F.2d 1154 (4th Cir.
1980). Here, it appears that Attorney Henderson, a public
defender, was assigned to Roberts's drug possession case,
appeared briefly to obtain postponement on September 19,
2016, and has unsuccessfully moved to strike his appearance
in that case. Henderson's only involvement in
Roberts's criminal case has been undertaken solely
because Henderson was assigned to the case to fulfill his
duty as a public defender. Consequently, a § 1983 cause
of action may not rest against Henderson.
is reminded that under 28 U.S.C. § 1915(g) he will not
be granted in forma pauperis status if he has
"on 3 or more prior occasions, while incarcerated or
detained in any facility, brought an action or appeal in a
court of the United States that was dismissed on the grounds
that it is frivolous, malicious, or fails to state a claim
upon which relief may be granted, unless the prisoner is
under imminent danger of serious physical injury."
separate Order follows.