UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN NORTHERN DIVISION ______

JOEY THOMAS TADGERSON,

Plaintiff, Case No. 2:19-cv-251

v. Honorable Paul L. Maloney

BRIAN RAHILLY et al.,

Defendants. ____________________________/ OPINION This is a civil rights action brought by a state prisoner under

. Under the Prison Litigation Reform Act,

Stat. 1321 (1996) (PLRA), the Court is required to dismiss any prisoner action brought under federal law if the complaint is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant immune from such relief.

(e)(2), 1915A; 42 U.S.C. § 1997e(c). The Court must read Plaintiff’s pro se complaint indulgently, see Haines v. Kerner,

(1972), and accept Plaintiff’s allegations as true, unless they are clearly irrational or wholly incredible. Denton v. Hernandez,

(1992). Applying these standards, the Court will dismiss Plaintiff’s complaint for failure to state a claim. Discussion I. Factual allegations Plaintiff presently is detained at the Chippewa County Jail in Sault Ste. Marie, Michigan. Plaintiff sues Chippewa County Chief Public Defender Jennifer France and court- appointed attorney Brian Rahilly. Plaintiff alleges that Defendant Rahilly was appointed to represent Plaintiff in the criminal proceeding for which he is now serving a prison term. Plaintiff suggests that Defendant France was involved in his representation or in the assignment to Defendant Rahilly. Plaintiff complains that Defendant Rahilly had a conflict of interest in his case, having defended other persons involved in the crime, all of whom “got off the hook.” (Compl., ECF No. 1, PageID.3.)

Plaintiff alleges that he did not learn of the conflict of interest until after he had entered his guilty plea. Plaintiff seeks punitive damages. II. Failure to state a claim A complaint may be dismissed for failure to state a claim if it fails “‘to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly,

(2007) (quoting Conley v. Gibson,

(1957)). While a complaint need not contain detailed factual allegations, a plaintiff’s allegations must include more than labels and conclusions. Twombly,

; Ashcroft v. Iqbal,

(2009) (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.”). The court must determine whether the complaint contains “enough facts to state a claim to relief that is plausible on its face.” Twombly,

. “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,

. Although the plausibility standard is not equivalent to a “‘probability requirement,’ . . . it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal,

(quoting Twombly,

). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—that the pleader is entitled to relief.” Iqbal,

(quoting Fed. R. Civ. P. 8(a)(2)); see also Hill v. Lappin,

(6th Cir. 2010) (holding that the Twombly/Iqbal plausibility standard applies to dismissals of prisoner cases on initial review under 28 U.S.C. §§ 1915A(b)(1) and 1915(e)(2)(B)(i)). To state a claim under

, a plaintiff must allege the violation of a right secured by the federal Constitution or laws and must show that the deprivation was committed

by a person acting under color of state law. West v. Atkins,

(1988); Street v. Corr. Corp. of Am.,

(6th Cir. 1996). Plaintiff cannot show that either Defendant Rahilly or Defendant France acted under color of state law. In Polk Cty. v. Dodson,

(1981), the Supreme Court held that defense counsel perform a private, not an official, function: In our system[,] a defense lawyer characteristically opposes the designated representatives of the State. The system assumes that adversarial testing will ultimately advance the public interest in truth and fairness. But it posits that a defense lawyer best serves the public, not by acting on behalf of the State or in concert with it, but rather by advancing “the undivided interest of his client.” This is essentially a private function, traditionally filled by retained counsel, for which state office and authority are not needed.

(footnotes omitted). The Polk County Court further held that this is true even of the state-appointed and state-paid public defender.

. The Court said that, once a lawyer undertakes the representation of an accused, the duties and obligations are the same whether the lawyer is privately retained, appointed, or serves in a legal aid or defender program.

. The Court held that, even though a public defender is paid by the state, he or she does not act under color of state law in representing the accused.

. Rather, defense counsel—whether privately retained or paid by the state—acts purely on behalf of the client and free from state control.

The Sixth Circuit has adhered to the holding in Polk County in numerous decisions. See, e.g., Floyd v. Cty. of Kent,

(6th Cir. 2012) (holding that, when performing traditional functions as counsel, a public defender is not a state actor); Powers v. Hamilton Cty. Pub. Defender,

(6th Cir. 2007) (same); Harmon v. Hamilton Cty. Court of Common Pleas,

(6th Cir. 2003). Accordingly, Plaintiff’s court-appointed attorney, Defendant Rahilly, does not act under color of state law. For the same reason, Defendant France does not act under color of law by taking an unspecified part in Plaintiff’s criminal defense. As a result, no claim under § 1983

can be maintained against them. Also pending before the Court are two motions filed by Plaintiff: (1) a motion to appoint counsel (ECF No. 3), and (2) a motion to drop Jennifer France as a Defendant in this action (ECF No. 5). Plaintiff’s motion to appoint counsel will be denied. Indigent parties in civil cases have no constitutional right to a court-appointed attorney. Abdur-Rahman v. Mich. Dep’t of Corr.,

(6th Cir. 1995); Lavado v. Keohane,

(6th Cir. 1993). The Court may, however, request an attorney to serve as counsel, in the Court’s discretion. Abdur- Rahman,

; Lavado,

; see Mallard v. U.S. Dist. Court,

(1989). Appointment of counsel is a privilege that is justified only in exceptional circumstances. In determining whether to exercise its discretion, the Court should consider the complexity of the issues, the procedural posture of the case, and Plaintiff’s apparent ability to prosecute the action without the help of counsel. See Lavado,

. The Court carefully considered these factors and determined that the assistance of counsel was not necessary to the proper presentation of Plaintiff’s position for initial screening, and the request for appointment of counsel is now mooted by the dismissal. Plaintiff’s motion therefore will be denied. Plaintiff’s motion to drop Jennifer France as a Defendant also will be denied. As the Court has discussed, Plaintiff’s allegations against Defendant France fail to state a claim. As a consequence, the Court has found that Plaintiff’s claims against Defendant France must be dismissed with prejudice. His motion to drop Defendant France therefore is moot. Conclusion Having conducted the review required by the Prison Litigation Reform Act, the Court determines that Plaintiff’s complaint will be dismissed for failure to state a claim, under

(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c). The Court also will deny Plaintiff’s motion to appoint counsel and motion to drop Defendant France. The Court must next decide whether an appeal of this action would be in good faith within the meaning of

(a)(3). See McGore v. Wrigglesworth,

(6th Cir. 1997). For the same reasons that the Court dismisses the action, the Court discerns no good-faith basis for an appeal. Should Plaintiff appeal this decision, the Court will assess the $505.00 appellate filing fee pursuant to § 1915(b)(1), see McGore,

, unless Plaintiff is barred from proceeding in forma pauperis, e.g., by the “three-strikes” rule of § 1915(g). If he is barred, he will be required to pay the $505.00 appellate filing fee in one lump sum. This is a dismissal as described by

(g).

A judgment consistent with this opinion will be entered.

Dated: January 16, 2020 /s/ Paul L. Maloney Paul L. Maloney United States District Judge