United States District Court, D. Massachusetts
ORDER ON MOTION TO PROCEED IN FORMA PAUPERIS AND FOR
REASSIGNMENT AND REPORT AND RECOMMENDATION
JENNIFER C. BOAL United States Magistrate Judge
reasons set forth below, plaintiff's motion for leave to
proceed in forma pauperis is ALLOWED and, because
the parties have not yet consented to proceed before a
Magistrate Judge, the Court will order that this action be
REASSIGNED to a District Judge for further proceedings, and
makes RECOMMENDATIONS to the District Judge to whom the case
is assigned, as follows.
Levesque, now residing in New York,  initiated this action on
April 10, 2017, while in custody at FMC Devens awaiting a
civil determination pursuant to 18 U.S.C. § 4246. At
that time, plaintiff filed a civil rights complaint seeking
monetary damages from several federal defenders. See
Docket No. 1. Plaintiff's allegations against Defendants
Miriam Conrad, Joshua Hayne and the Federal Defender Office,
stem from Mr. Hayne's representation of Levesque in civil
commitment proceedings. See United States v.
Levesque, C.A. No. 16-12055-IT (pending). With his
complaint, Levesque filed a motion to proceed in forma
pauperis. See Docket No. 2.
The Motion for Leave to Proceed In Forma Pauperis
bringing a civil action must either (1) pay the $350.00
filing fee and the $50.00 administrative fee, see 28
U.S.C. § 1914(a); or (2) seek leave to proceed without
prepayment of the filing fee, see 28 U.S.C. §
1915 (proceedings in forma pauperis). Based on the
financial disclosures, and because Levesque reports that he
is without income or assets to prepay the filing and
administrative fees, his motion to proceed in forma
pauperis is granted.
as here, a plaintiff is allowed to proceed without prepayment
of the filing fee, summons do not issue until the Court
reviews the complaint and determines that it satisfies the
substantive requirements of 28 U.S.C. § 1915. This
statute authorizes federal courts to dismiss a complaint if
the claims are frivolous, malicious, fail to state a claim on
which relief may be granted, or seek monetary relief against
a defendant who is immune from such relief. See 28
U.S.C. § 1915(e)(2). In connection with the preliminary
screening, pro se pleadings are construed
generously. Haines v. Kerner, 404 U.S. 519, 520-21
(1972); Rodi v. New Eng. Sch. of Law, 389 F.3d 5, 13
(1st Cir. 2004); see also Strahan v. Coxe, 127 F.3d
155, 158 n. 1 (1st Cir.1997) (noting obligation to construe
pro se pleadings liberally) (citing Haines v.
Kerner, 404 U.S. at 520). However, even under a liberal
construction, the complaint is subject to dismissal for the
reasons discussed below.
The Complaint is Subject to Dismissal
extent plaintiff alleges violation of his constitutional
rights, see Complaint at ¶ 5, such claims may
be asserted against federal defendants pursuant to Bivens
v. Six Unknown Named Agents of the Federal Bureau of
Narcotics, 403 U.S. 388 (1971), which established a
direct cause of action against federal officials for
violations of the federal constitution. Under
Bivens, Levesque may seek “to vindicate
certain constitutionally protected rights through a private
cause of action for damages against federal officials in
their individual capacities.” DeMayo v.
Nugent, 517 F.3d 11, 14 (1st Cir. 2008).
Hayne is an assistant federal public defender who was
appointed to represent Levesque in a civil commitment
proceeding pursuant to 18 U.S.C. § 4246. In Polk
Cnty. v. Dodson, 454 U.S. 312, 317-18 (1981), in the
context of a Section 1983 civil rights suit, the United
States Supreme Court held that public defenders do “not
act under color of state law” when performing
traditional lawyer duties. Similarly, a federal
court-appointed attorney does not act under color of federal
law when representing clients in federal criminal proceedings
and therefore is not subject to suit under Bivens.
Pandey v. Freedman, 66 F.3d 306 (1st Cir. 1995)
(unpublished); Barnett v. Levin, No.
1:12-cv-518-JJM, 2013 WL 684454, at *2 (D.N.H. Feb. 25, 2013)
(citations omitted); see also Crump v. Morton-Smith,
No. C.A. No. 3:10-788, 2010 WL 4719383, at *5 (S.D. W.Va.
Oct. 19, 2010) (“It is a matter of well-settled law
that an attorney, whether retained, court-appointed, or a
public defender, does not act under color of state or federal
law when performing the traditional functions of a lawyer
and, therefore, is not amenable to suit under § 1983 or
Bivens.”). Thus, the claim against Hayne is
subject to dismissal.
extent Levesque seeks to hold Miriam Conrad and the Federal
Defender's Office liable under a theory of respondeat
superior, there is no respondeat superior liability in a
Bivens action, and any such claims are also be
subject to dismissal. See Ruiz-Rivera v. Riley, 209
F.3d 24, 28 (1st Cir. 2000); see also Terrell v.
Brewer, 935 F.2d 1015, 1018 (9th Cir. 1991) (respondeat
superior theory of liability inapplicable to Bivens
actions). As such, the claims against Conrad and the Federal
Defender's Office are subject to dismissal.