Free Order - District Court of Delaware - Delaware

Case 1:05-cv—OO472-KAJ Document 5 Filed O3/O3/2006 Paget of4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
GBEKE MICHAEL AWALA, )
Plaintiff, g
v. ) Civ. N0. 05-472—|· ATTORNEY SAMUEL C. )
STRETTON, )
Defendant. g
MEMORANDUM ORDER
Plaintiff Gbeke Michael Awala ("Awala"), an inmate at the Federal Detention
Center, in Philadelphia, Pennsylvania, brings this civil rights action against his
appointed defense counsel, Samuel C. Stretton ("Stretton"). (D.l. 1.) The case was
dismissed on January 13, 2006, when Awala failed to file the required documents to
proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (D.l. 3.) Awala moves for
reconsideration (D.I. 4) of the January 13, 2006 order, and in doing so, he argues the
merits of his complaint.
Awala is well-known to the Court. In the interest ofjudicial economy, I will now
proceed to review and screen the complaint pursuant to 28 U.S.C. § 1915 and § 1915A.
For the reasons discussed below, I am dismissing the complaint for failure to state a
claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and §
1915A(b)(1).
I. THE COMPLAINT
Awala brings suit against Stretton who was appointed to defend Awala in a
criminal case in this district court. See United States v. Awala, Crim. No. O4—90-I
Case 1:05-cv—00472-KAJ Document 5 Filed 03/03/2006 Page 2 of 4
Del.). On January 18, 2006, Awala was found guilty of illegally re-entering this country
after having been deported, 8 U.S.C. § 1326. ld. at D.|. 175.
in this suit, Awala essentially alleges that, at the time of the filing of this civil
complaint, Stretton was not providing him with effective assistance of counsel. l—le also
alleges that Stretton conspired to deprive him of his civil rights, but makes no mention
of who was involved in the alleged conspiracy.
Awala seeks compensatory damages in the sum of $1.5 million for all injuries
sustained "due to the grave misconduct" of Stretton.
II. STANDARD OF REVIEW
When a litigant proceeds in forma pauperis, 28 U.S.C. § 1915 provides for
dismissal under certain circumstances. When a prisoner seeks redress in a civil action,
28 U.S.C. § 1915A provides for screening ofthe complaint by the Court. Both 28
U.S.C. § 1915(e)(2)(B) and § 1915A(b)(1) provide that the Court may dismiss a
complaint, at any time, if the action is frivolous, malicious, fails to state a claim upon
which relief may be granted or seeks monetary relief from a defendant immune from
such relief. An action is frivolous if it "lacks an arguable basis either in law or in fact."
Neilzke v. Williams, 490 U.S. 319, 325 (1989).
The court must "accept as true factual allegations in the complaint and all
reasonable inferences that can be drawn therefrom? Nami v. Fauver, 82 F.3d 63, 65
(3d Cir. 1996) (citing Holder v. City ofillllentown, 987 F.2d 188, 194 (3d Cir. 1993)).
Additionally, pro se complaints are held to "Iess stringent standards than formal
pleadings drafted by |awyers" and can only be dismissed for failure to state a claim
when "it appears ‘beyond doubt that the plaintiff can prove no set of facts in support of
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Case 1:05-cv—00472-KAJ Document 5 Filed 03/03/2006 Page 3 of 4
his claim which would entitle him to relief."' Haines v. Kerner, 404 U.S. 519, 520-521
(1972) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
lll. ANALYSIS
Stretton was appointed to represent Awala in a federal criminal case, and Awala
seems to think Stretton is liable as an agent of the federal government. A claim against
a federal defendant is governed by Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388, 389 (1971). In Bivens, the Supreme Court created
a federal tort counterpart to the remedy created by 42 U.S.C. § 1983 as it applies to
federal officers. To state a claim under Bivens, a claimant must show (1) a deprivation
of a right secured by the Constitution and laws of the United States; and (2) that the
deprivation ofthe right was caused by an official acting under color of federal law. See
Mahoney v. National Org. for Women, 681 F.Supp. 129, 132 (D.Conn.1987) (citing
Fiagg Bros., Inc. v. Brooks, 436 U.S. 149, 155-56 (1978)).
Awala is quite clear in his complaint that he brings suit against Stretton on the
basis that, according to him, he provided him with ineffective assistance of counsel. As
noted above, when bringing a Bivens claim, a plaintiff must allege that the person who
allegedly caused a constitutional deprivation acted under color of federal law. See
Mahoney, 681 F.Supp. at 132 (citing Flagg Brothers, lnc. v. Brooks, 436 U.S. 149, 155-
56 (1978)). A
A defense counsel performing the traditional role of an attorney in criminal
proceedings does not act under color of law. See Polk County v. Dodson, 454 U.S. 312
(1981); Black v. Bayer, 672 F.2d 309 (3d Cir.1982). This is true whether defense
counsel is a public defender, court-appointed counsel, or privately retained. See id.;
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Cox v. Heiierstein, 685 F.2d 1098,1099 (9th Cir. 1982) (federal public defenders are not
amenable to suit under Bivens as they do not act under color of law). Because Stretton
is not considered to have acted under color of federal law, Awala’s claim against him
fails under Bivens.
Therefore, I am dismissing, without prejudice, pursuant to 28 U.S.C. §
1915(e)(2)(B) and §1915A(b)(1) the ineffective assistance of counsel claim brought
against Stratton for failure to state a claim upon which relief may be granted.
lll. CONCLUSION
IT IS THEREFORE ORDERED that;
1. The motion for reconsideration (D.|. 4) is DENIED.
2. Gbeke IVI. Awala’s complaint is DlSI\/IISSED without prejudice as legally
and factually frivolous and for failure to state a claim upon which relief may be granted
pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b)(1). Amendment ofthe complaint
would be futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 111 (3d Cir.
2002); Borelli v. City of Reading, 532 F.2d 950, 951-52 (3d. Cir. 1976).
3. For the reasons set forth in this Memorandum Order, the Court discerns
no good-faith basis for an appeal. See 28 U.S.C. § 1915(a)(3).
y `· .__, _ = / N (
U -ITE[)·'STATES DISTRICT JUDGE ~—»
/ ,\_//
l\/larch 3, 2006
Wilmington, Delaware
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