United States District Court, E.D. Virginia, Richmond Division
E. Payne, Senior United States District Judge
Hicks, Jr., a Virginia inmate proceeding pro se and
in forma pauperis, has filed this 42 U.S.C. §
1983 action. The matter is before the Court for evaluation
pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A.
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." Ashcroft 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, 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 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. Hicks named David S. Clements as the sole
defendant. Mr. Clements served as Mr. Hicks's counsel
during Mr. Hicks's state criminal trial. Mr. Hicks
contends that, inter alia, Mr. Clements violated his
constitutional rights and engaged in legal malpractice. Mr.
Hicks demands millions of dollars in damages.
order to state a 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 a constitutional right or of
a right 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). 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) P[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, Mr. Hicks has failed to state a viable
§ 1983 claim against Mr. Clements, and Mr. Hicks's
constitutional claims will be dismissed.
state a cause of action for legal malpractice under Virginia
law, plaintiff must show (1) the existence of an
attorney-client relationship giving rise to a duty; (2) the
breach of that duty by the attorney; and (3) damages
proximately caused by the breach." Jones v.
Link, 493 F.Supp.2d 765, 771 (E.D. Va. 2007) (citing
Rutter v. Jones, Blechman, Woltz & Kelly, P.C.,
568 S.E.2d 693 (Va. 2002)). Furthermore, in a legal
malpractice action arising from a criminal case, where the
plaintiff contends his attorney's negligence resulted in
an erroneous conviction or a longer sentence, he must also
allege "that he has obtained postconviction
relief." Id. at 769 (quoting Taylor v.
Davis, 576 S.E.2d 445, 447 (Va. 2003)); Astrop v.
Brunswick, No. 3:06CV640-HEH, 2007 WL 6080449, at *2
(E.D. Va. Apr. 26, 2007)(alterations in original) (citation
omitted) ("Virginia requires an inmate bringing a claim
for legal malpractice arising out of his conviction or
sentence to 'alleg[e] and prov[e] as a part of his cause
of action that he has obtained post-conviction
relief."), aff'd, 251 Fed.Appx. 227 (4th
Cir. 2007). Mr. Hicks has not obtained any post-conviction
relief with respect to his state conviction. See Hicks v.
Clements, No. 3:17CV96, 2017 WL 1963901, at *1 (E.D. Va.
May 11, 2017) (dismissing Mr. Hicks's successive,
unauthorized challenge to his state conviction), appeal
dismissed, 699 Fed.Appx. 199 (4th Cir. 2017) . Thus, Mr.
Hicks has failed to state a claim for legal malpractice.
Accordingly, Mr. Hicks's legal malpractice claim will be
action will be dismissed for failure to state a claim and as
legally frivolous. The Clerk will be directed to note the
disposition of the action ...