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Newkirk v. Lerner

United States District Court, E.D. Virginia, Richmond Division

February 14, 2014

KENNETH NEWKIRK, Plaintiff,
v.
LOUIS LERNER, etal, Defendants.

MEMORANDUM OPINION (Dismissing With Prejudice 42 U.S.C. § 1983 Action)

HENRY E. HUDSON, District Judge.

Kenneth Newkirk, a Virginia inmate proceeding pro se and informa pauperis, filed this 42 U.S.C. § 1983 action.[1] The matter is before the Court for evaluation pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A.

A. Preliminary Review

Pursuant to the Prison Litigation Reform Act ("PLRA") this Court must dismiss any action filed by a prisoner if the Court determines the action (1) "is frivolous" or (2) "fails to state a claim on which relief may be granted." 28 U.S.C. § 1915(e)(2); see 28 U.S.C. § 1915A. The first standard includes claims based upon "an indisputably meritless legal theory, '" or claims where the "factual contentions are clearly baseless.'" Clay v. Yates, 809 F.Supp. 417, 427 (E.D. Va. 1992) (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)). The second standard is the familiar standard for a motion to dismiss under Fed.R.Civ.P. 12(b)(6).

"A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citing 5A Charles A. Wright &Arthur R. Miller, Federal Practice and Procedure § 1356 (1990)). In considering a motion to dismiss for failure to state a claim, a plaintiffs well-pleaded allegations are taken as true and the complaint is viewed in the light most favorable to the plaintiff. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993); see also Martin, 980 F.2d at 952. This principle applies only to factual allegations, however, and "a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

The Federal Rules of Civil Procedure "require[] only a short and plain statement of the claim showing that the pleader is entitled to relief, ' in order to give the defendant fair notice of what the... claim is and the grounds upon which it rests.'" Bell Atl Corp. v. Twombly, 550 U.S. 544, 555 (2007) (second alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Plaintiffs cannot satisfy this standard with complaints containing only "labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Id. (citations omitted). Instead, a plaintiff must allege facts sufficient "to raise aright to relief above the speculative level, " id. (citation omitted), stating a claim that is "plausible on its face, " id. at 570, rather than merely "conceivable." Id. "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 (citing BellAtl. Corp., 550 U.S. at 556). In order for a claim or complaint to survive dismissal for failure to state a claim, therefore, the plaintiff must "allege facts sufficient to state all the elements of [his or] her claim." Bass v. E.I. DuPont de Nemours &Co., 324 F.3d 761, 765 (4th Cir. 2003) (citing Dickson v. Microsoft Corp., 309 F.3d 193, 213 (4th Cir. 2002); Iodice v. United States, 289 F.3d 270, 281 (4th Cir. 2002)). Lastly, while the Court liberally construes pro se complaints, Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), it will not act as the inmate's advocate and develop, sua sponte, statutory and constitutional claims that the inmate failed to clearly raise on the face of his complaint. See Brock v. Carroll, 107 F.3d 241, 243 (4th Cir. 1997) (Luttig, J., concurring); Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).

B. Summary of Allegations

Newkirk is currently detained pending his trial in the Circuit Court for the City of Hampton ("Circuit Court") for first-degree murder and shooting/stabbing in commission of a felony. See Newkirk v. Lerner, No. 3:13CV570-HEH, 2013 WL 4811219, at *1 (E.D. Va. Sept. 9, 2013). Newkirk's trial for the foregoing charges is currently set to begin on March 11, 2014.[2] In arambling and incoherent Complaint, Newkirk alleges that Judge Louis Lerner, Commonwealth's Attorney Anton Bell, defense counsel George Rogers, Clerk of the Circuit Court Linda Smith, Detective Rodey, attorney Charles Haden, two apparent witnesses, Debra Monae Waters and Thomas Sherrad Kearney, and a journalist with the Daily Press newspaper, Ashley Kelly, committed various errors in his criminal prosecution. (Compl. 2-3.)

Newkirk demands "$500, 000, 000, 000, 000" from each defendant, injunctive relief, and dismissal of the pending criminal charges. (Compl. 6.) As explained below, Newkirk's Complaintwill be dismissed.

C. Analysis

1. Persons Not Amenable to Suit Under § 1983

In order to state viable claim under 42 U.S.C. §1983, a plaintiff must allege that a person acting under color of state law deprived him or her of either a constitutional right or aright conferred by a law of the United States. See Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 658 (4th Cir. 1998) (citing 42 U.S.C. §1983). Defendants George Rogers, Charles Haden, Debra Monae Waters, Thomas Sherrad Kearney, and Ashley Kelly are not persons under § 1983 and are not amenable to suit.

a. Defense Counsel Rogers and Haden

Newkirk states "every [sic] 2011 I've been trying to fire standbye [sic] counsel George Rogers[.] He has forced himself on my case. 6th Amendment." (Compl. 5.) For Defendant Charles Haden, Newkirk states: "Lawyer. May 2011-refused to file an appeal-violation of my Sixth Amendment." ( Id ) Private attorneys and public defenders do not act under color of state or federal authority when they represent defendants in criminal proceedings. See, e.g., Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981) ("[A] public defender does not act under color of state law when performing a lawyer's traditional functions as counsel to a defendant in a criminal proceeding."); Cox v. Hellerstein, 685 F.2d 1098, 1099 (9th Cir. ...


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