United States District Court, D. Maryland
W. GRIMM UNITED STATES DISTRICT JUDGE
Michael Anthony Nash filed a civil rights complain,, ECF
No.,, on August 2, 2018, along with a Motion to Proceed in
Forma Pauperis, ECF NO.2. Nash is incarcerated at Jessup
Correctional Institution and alleges that the named
Defendants deprived him of his constitutional rights in
connection with his criminal case. See State of Maryland
v. Nash, Case No. CT131081X (Prince George's Cty.
Cir. Ct. 2013). Nash entered a guilty plea to
attempted second degree murder; he was sentenced to 30 years
of incarceration with all but 20 years suspended.
Id. The conviction has not been overturned through
appellate or post-conviction; review. Because Plaintiff fails to
state a claim against Righter or Waldrup and cannot bring a
claim pursuant to 42 U.S.C. § 1983 while his petition
for post-conviction relief remains pending in state court,
the complaint will be dismissed and Plaintiff s Motion to
Proceed in Forma Pauperis will be granted 
noted, Nash filed his complaint in forma pauperis pursuant to
28 U.S.C. S 19l5(a)(1), which permits an indigent litigant to
commence an action in this court without prepaying the filing
fee. To guard against possible abuses of this privilege, the
statute requires dismissal of any claim that is frivolous or
malicious, or fails to state a claim on which relief may be
granted. 28 U.S.C. S 19l5(e)(2)(B)(i) and (ii). To state a
claim sufficiently to survive dismissal, a complaint must
contain "a short and plain statement of the claim
showing that the pleader is entitled to relief,"
Fed.R.Civ.P. 8(a)(2), and must state "a plausible claim
for relief," Ashcroft v. Iqbal, 556 U.S. 662,
678-79 (2009). "A claim has facial plausibility when the
plaintiff pleads factual content. that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged." Iqbal, 556 U.S. at
678. Rule 12(b)(6)'s purpose "is to test the
sufficiency of a complaint and not to resolve contests
surrounding the facts, the merits of a claim, or the
applicability of defenses." Velencia v.
Drezhlo, No. RDB-12-237, 2012 WL 6562764, at *4 (D. Md.
Dec. 13, 2012) (quoting Presley v. City of
Charlottesville, 464 F.3d 480, 483 (4th Cir. . 2006)).
Court is mindful, however, of its obligation to liberally
construe self-represented pleadings, such as the instant
complaint. See Erickson v. Pardus, 551 U.S. 89, 94
(2007). In evaluating such a complaint, the factual
allegations are assumed to be true. Id. at 93
(citing Bell Atl Corp. v. Twombly, 550 U.S. 544,
555-56 (2007)). Nonetheless, liberal construction doe~not
mean that this court can ignore a clear failure in the
pleading to allege facts which set forth a cognizable claim.
See Weller v. Dep't of Soc. Servs., 901 F.2d 387
(4th Cir. 1990); see also Beaudett v. City of
Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985) (stating a
district court may not "conjure up questions never
squarely presented".. In making this determination,
"[t]he district court need not look beyond the
complaint's allegations .... It must hold the pro se
complaint to less stringent standards than pleadings drafted
by attorneys and must read the complaint liberally."
White v. White, 886 F.2d 721, 722-23 (4th Cir.
Sherri M. Waldrup was the Assistant State's Attorney
involved in prosecuting Nash. Compl. 2-3. Nash claims that
Waldrup had knowledge that the indictment was defective.
Id. at 4-5. Maryland's States Attorneys are
quasi-judicial officers who enjoy absolute immunity when
performing prosecutorial functions, as opposed to
investigative or administrative ones. See Imbler
v. Pachtman, 424 U.S. 409, 422-23 (1976); see also
Kalina v. Fletcher, 522 U;S. 118, 127 (1997);
Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993);
Nero v. Mosby, 890 F.3d 106, 117-18 (4th Cir. 2018).
Absolute immunity is designed to protect judicial process.
Thus, the inquiry is whether a prosecutor's actions are
closely associated with judicial process. See Burns v.
Reed, 500 U.S. 478, 479 (1991) (citing Imbler,
424 U.S. at 422-23.. The court must use a "functional
approach" to "determine whether a particular act is
'intimately associated with the judicial
phase.'" Nero, 890 F.3d at 117 (quoting
Imbler, 424 U.S. at 430). The Fourth Circuit
recently stated in Nero:
A prosecutor acts as an advocate when she professionally
evaluates evidence assembled by the police, Buckley,
509 U.S. at 273, decides to seek an arrest warrant,
Kalina, 522 U.S. at 130, prepares and files charging
documents, id participates in a probable cause
hearing, Burns, 500 U.S. at 493, and presents
evidence at trial, Imbler, 424 U.S. at 431.
890 F.3d at 118. Nash's claim against Waldrup is barred
and must be dismissed. See id
also names as a Defendant Kimberly B. Righter, a public
defender appointed to represent him in his criminal trial.
Compl. 4. He asserts that his public defender also knew or
should have known that indictment was defective. Id.
Defense attorneys, whether appointed or privately retained,
do not act under color of state law when performing a
lawyer's traditional functions as counsel to a defendant
in a criminal proceeding. See Deas v. Potts, 547
F.2d 800, 800 (4th Cir. 1976); see also Hall v.
Quillen, 631 F.2d 1154, 1155-56 (4th Cir. 1980);
Polk Cty. v. Dodson, 454 U.S. 312, 453-54 (1981).
Thus, Nash cannot state a claim against Righter under
§ 1983 based on her conduct serving as
his attorney. See 42 U.S.C. § 1983. While an
attorney who conspires with a state official to violate
constitutional rights does act under color of state law,
evidence of the conspiracy is required. See Tower v.
Glover, 467 U.S. 914, 920 (1984); Phillips v.
Mashburn, 746 F.2d 782, 785 (11th Cir. 1984) (plaintiff
must make more than naked assertion of conspiracy). Here,
Nash does not offer anything in support of his assertion that
Righter conspired with the state officials. This claim is a
naked assertion of conspiracy and must be dismissed. See
Tower, 467 U.S. at 920; see also Ashcroft v.
Iqbal, 556 U.S. 662, 678-79 (2009).
Prince George Police Department and
remaining named Defendants are the Prince George's Police
Department and individual police officers involved in the
investigation of the criminal case against Nash. As noted,
Nash's conviction has not been overturned or otherwise
invalidated. In Heck v. Humphrey, 512 U.S. 477,
486-87 (1994), the Supreme Court ruled:
[T]o recover damages for alleged unconstitutional conviction
or imprisonment, or for other harm caused by actions whose
unlawfulness would render a conviction or sentence invalid, a
S 1983 plaintiff must prove that the conviction or sentence
has been reversed on direct appeal, expunged by executive
order, declared invalid by a state tribunal authorized to
make such determination, or called into question by a federal
court's issuance of a writ of habeas corpus, 28 U.S.C. S
2254. A claim for damages bearing that relationship to a
conviction or sentence that has not been so invalidated is
not cognizable under S 1983. ... But if the district court
determines that the plaintiffs action, even if successful,