United States District Court, E.D. Virginia, Richmond Division
JOHN A. BRYANT, JR., Plaintiff,
REBECCA SUE COLAW, Defendant.
E. Payne Richmond, Virginia Senior United States District
Bryant, a federal inmate proceeding pro se and
in forma pauperis, has filed this
Bivens action. The matter is before the Court for
evaluation pursuant to 28 U.S.C. §§ 1915(e)(2) and
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).
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 plaintiff's 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." Asheroft v. Iqbal,
556 U.S. 662, 679 (2009).
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, 3 55 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 a right 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 Bell Atl.
Corp., 550 U.S. at 556) . In order for a claim or
complaint to survive dismissal for failure to state a claim,
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).
SUMMARY OF ALLEGATIONS
Complaint, Mr. Bryant named as the sole defendant, Rebecca
Sue Colaw. Ms. Colaw served as appointed counsel for Mr.
Bryant during Mr. Bryant's appeal of his criminal
conviction from this Court to the United States Court of
Appeals for the Fourth Circuit. (Compl. 3.) Mr. Bryant
contends that Ms. Colaw's deficient performance deprived
him of his constitutional right to the effective assistance
of counsel. (Id.) Mr. Bryant demands monetary
damages. (Id. at 9.)
order to state a viable Bivens claim, a plaintiff
must allege facts which indicate that a person acting under
color of federal authority deprived him or her of a
constitutional right." Williams v. Burgess, No.
3:09CV115, 2010 WL 1957105, at *2 (E.D. Va. May 13, 2010)
(footnote omitted) (citing Goldstein v. Moatz, 364
F.3d 205, 210 n.8 (4th Cir. 2004)). Private attorneys and
public defenders do not act under color of federal authority
when they represent defendants in criminal proceedings.
See Polk Cty. 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.
1982) (holding that attorneys do not act under color of state
or federal law when representing clients, and therefore
relief cannot be obtained under either section 1983 or
Bivens); see Bagguley v. Cogburn, Nos.
89-7102, 89-7103, 1990 WL 139323, at *1 (4th Cir. Sept. 26,
1990). Accordingly, as Mr. Bryant has failed to state a
viable claim against Ms. Colaw, the action will be dismissed
with prejudice. The Clerk will be directed to note the
disposition of the action for the purposes of 28 U.S.C.
Clerk is directed to send a copy of the Memorandum Opinion to
Bivens v. Six Unknown Named Agents
of the Federal Bureau of Narcotics, 403 U.S. 388