NEWELL v. MONTGOMERY COUNTY PUBLIC DEFENDER'S OFFICE

ROBERT ECHOLS, District Judge

The plaintiff, proceeding pro se and in forma pauperis, is a prisoner in the Charles Bass Correctional Complex in Nashville, Tennessee He brings this action under 42 U.S C. § 1983 against the following defendants: 1) the Montgomery County Public Defender's Office; 2) the State of Tennessee; 3) Rebecca F Stevens, Assistant Public Defender (retired), 19^th Judicial District; 4) Steven L. Garrett, Assistant District Attorney General, 19^th Judicial District; 5) Norman Lewis, Sher iff of Montgomery County; and 6) the Montgomery County Sheriff's Department The plaintiff seeks money damages and injunctive relief.

The plaintiff avers that he was arrested in September 2005, and booked on charges of "domestic assault and criminal attempt to commit murder." Fifteen months later, in October, 2006, the plaintiff pled guilty to attempted second-degree murder. The plaintiff alleges that Assistant Public Defender Stevens was unprofessional and unethical in her representation, and that she and Assistant District Attorney General Garrett coerced him into entering the plea agreement According to the plaintiff, the trial judge permitted him to withdraw his guilty plea in March, 2008 "due to coercion" The plaintiff claims that he was then tried for the offense(s) on September 21, 2008

In addition to the foregoing, the plaintiff raises numerous conditions of confinement claims relating to those times during which he was incarcerated in the Montgomery County Jail from 2005 to 2008 The plaintiffs myriad conditions-of-confinement claims include: false imprisonment, cruel and unusual punishment, mail tampering, denial of visitation rights, and theft of personal property

To state a claim under § 1983, the plaintiff must allege and show: 1) that he was deprived of a right secured by the Constitution or laws of the United States; and 2) that the deprivation was caused by a person acting under color of state law Parratt v Taylor, 451 U.S. 527, 535 (1981) (overruled in part by Daniels v Williams, 474 U.S. 327, 330 (1986)); Flagg Bros v Brooks, 436 U S. 149, 155-56 (1978); Black v Barberton Citizens Hosp, 134 F 3d 1265, 1267 (6^th Cir 1998). Both parts of this two-part test must be satisfied to support a claim under § 1983. See Christy v Randlett, 932 F 2d 502, 504 (6^th Cir 1991).

Under the Prison Litigation Reform Act (PLRA), the courts are required to dismiss a prisoner's complaint if it is determined to be frivolous, malicious, or if it fails to state a claim on which relief may be granted 28 U.S C § 1915A(b) A complaint is frivolous and warrants dismissal when the claims "lack[] an arguable basis in law or fact." Neitzke v Williams, 490 U S. 319, 325 (1989) Claims lack an arguable basis in law or fact if they contain factual allegations that are fantastic or delusional, or if they are based on legal theories that are indisputably meritless. Id. at 327-28; Brown v Bargery, 207 F 3d 863, 866 (6^th Cir. 2000); see also Lawler v Marshall, 898 F.2d 1196, 1198-99 (6^th Cir 1990). Although the courts are required to construe pro se pleadings liberally, see Boag v MacDougall, 454 U S. 364, 365 (1982), under the PLRA, the "courts have no discretion in permitting a plaintiff to amend a complaint to avoid a sua sponte dismissal," McGore v Wrigglesworth, 114 F 3d 601, 612 (6^th Cir 1997).

The crux of the plaintiffs claim against the Montgomery County Public Defender's Office is that he "had an exemplary record and impeccable character before [he] was misrepresented" by retired Assistant Public Defender Stevens

Although the Sixth Circuit does not appear to have addressed whether a public defender's office is a "person" for purposes of § 1983, in a lengthy opinion on a similar question, the Third Circuit held that a district attorney's office is not a person within the meaning of § 1983, because a district attorney's office is not a body politic or corporate Reitz v County of Bucks, 125 F.3d 139 (3^rd Cir 1997). The reasoning in Reitz parallels that in Petty v County of Franklin, Ohio 478 F 3d 341, 347 (6^th Cir. 2007) and Matthews v Jones, 35 F.3d 1046, 1049 (6^th Cir 1994), in which the Sixth Circuit determined that a shetiff's office/department is not a person within the meaning of § 1983 for the same reason. As reasoned above, the Court finds that a public defender's office is not a "person" within the meaning of § 1983 Consequently, the plaintiff's claim against the Montgomery County Public Defender's Office fails to satisfy the second part of the two-part test under Parratt, supra at p 2

Even if it were determined that the Montgomery County Public Defender's Office is a person within the meaning of § 1983, it is apparent from the complaint that the plaintiff's legal theory as to the Montgomery County Public Defender's Office is that it is liable for the representation provided by retired Assistant Public Defender Stevens. The law is well established, however, that actions brought against state actors cannot be maintained on a theory of respondeat superior, see e.g, Monell v Dept of Social Serv's of The City of New York, et al, 436 U.S. 658, 659, 691-95 (1978); Taylor v Michigan Dep't of Corrections, 69 F 3d 76, 80-81 (6^th Cit 1995); Dunn v Tennessee, 697 F 2d 121, 128 (6^th Cir 1982), unless the defendant was personally involved in the alleged violations of the plaintiffs constitutional rights, see e.g., Copelandv Machulis, 57 F 3d 476, 481 (6^th Cir 1995); Bellamy v Bradley, 729 F 2d 416, 421 (6^th Cir. 1984). In other words, for vicarious liability to attach, the Montgomery County Public Defender's Office would have had to have "encouraged. directly participated, authorized, approved, or knowingly acquiesced." in the violations alleged. See Shehee v Luttrell, 199 F 3d 295, 300 (6^th Cir 1999)

The plaintiff does not allege that the Montgomery County Public Defender's Office was directly responsible for any of the alleged actions of retired Assistant Public Defender Stevens. Not does he allege that she acted pursuant to a policy or custom attributable to the Montgomery County Public Defender's Office that violated his constitutional rights. See Collins v City of Harker Heights, Tex, 503 U.S. 115, 122 (1992); Stemler v City of Florence, 126 F.3d 856, 865 (6^th Cir 1997) Consequently, even if the Montgomery County Public Defender's Office were a person within the meaning of § 1983, it is not liable to the plaintiff under the plaintiff's legal theory, i.e., under the doctrine of respondeat superior

The plaintiff's claim against the Montgomery County Public Defender's Office lacks an arguable basis in law or fact Accordingly, it will be dismissed as frivolous

In his complaint, the plaintiff asserts that Assistant District Attorney General Garrett was "acting for the STATE OF TENNESSEE . . ." Apart from this single assertion, the plaintiff provides no factual allegations relevant to the State of Tennessee's liability anywhere else in the statement of his claim.

It is apparent from the foregoing that the plaintiff's legal theory as to the State of Tennessee is that it is vicariously liable for the alleged actions of Assistant District Attorney General Garrett For the same reasons explained, supra at pp. 3-4, the State of Tennessee is not liable to the plaintiff under the doctrine of respondeat superior for the alleged actions of Assistant District Attorney General Garrett Therefore, the plaintiffs claim against the State of Tennessee will be dismissed for failure to state a claim on which relief may be granted.

The plaintiff levels numerous allegations against retired Assistant Public Defender Stevens and Assistant District Attorney General Garrett. However, the complaint sues both defendants only in their official capacity

"A suit against an individual in [their] official capacity is the equivalent of a suit against the governmental entity" of which the official is an agent, Matthews, 35 F 3d at 1049; see also Will v Michigan Dep't of State Police, 491 U.S. 58, (1989), in this case, the State of Tennessee. However, governmental entities cannot be held responsible for a constitutional deprivation, unless there is a direct causal link between a state policy or custom and the alleged constitutional violation. Monell, 436 U.S at 691; Gregory v Shelby County, Tenn., 220 F.3d 43.3, 442 (6^th Cir 2000) The plaintiff does not allege, nor can it be liberally construed from the complaint, that the above-named defendants acted according to any such policy or custom attributable to the State of Tennessee Consequently, the State of Tennessee has no liability under § 1983 with respect to the alleged acts and/or omissions of the above-named defendants

For the reasons explained above, and infra at p. 6, n. 3, the plaintiffs claims against retired Assistant Public Defender Stevens and Assistant Attorney General Garrett lack an arguable basis in law or fact Accordingly, these claims will be dismissed as frivolous.

The plaintiff alleges that Sheriff Lewis "and his deputies" kept him falsely imprisoned from September 2005 until December 2008. The plaintiff also raises numerous conditions of confinement claims that allegedly occurred during this time

The complaint sues Sheriff Lewis only in his official capacity (Docket Entry No 1, ¶ III.B.3, p 5) A sheriff sued in his official capacity is deemed to be a suit against the county. Marchese v Lucas, 758 F.2d 181, 189 (6^th Cir 1985) (citing Brandon v Holt, 469 U.S 464 (1985)). Since the plaintiff is, in essence, suing the County of Montgomery, he must claim that the alleged violations of his constitutional rights stemmed from a county policy, regulation, decision, custom, or the tolerance of a custom of such violations. Otherwise, a § 1983 claim will not lie See City of Canton, Ohio v Harris, 489 U.S 378, 385 (1989); Monell, 436 U.S at 690-91; Doe v Claiborne County, Tenn., 103 F 3d 495, 507-09 (6^th Cir. 1996). The plaintiff does not allege, not can it be liberally construed from the complaint, that any such county policy, regulation, decision, custom, or tolerance of a custom of such violations was responsible for the violations alleged

As reasoned above, the County of Montgomery has no liability under § 1983. Therefore, the plaintiff's claim against Sheriff Lewis will be dismissed for failure to state a claim on which relief may be granted

The plaintiff seeks money damages and injunctive relief from the Montgomery County Sheriff's Office for the acts and omissions of those in its employ.

Sheriffs' offices and police departments are not bodies politic, and as such, are not persons within the meaning of § 1983 See Petty, 478 F 3d at 347 (a sheriff's office is not a legal entity that can be sued under § 1983); Matthews, 35 F 3d at 1049 (a police department is not a person for purposes of § 1983); Timberlake by Timberlake v Benton, 786 F.Supp 676, 682-83 (M.D. Tenn. 1992) (police departments are not persons within the meaning of § 1983) Because the plaintiff cannot satisfy the second half of the two-part test under Parratt, supra at p. 2, he fails to make a prima facie showing of a violation under § 1983. Therefore, this claim will be dismissed for failure to state a claim on which relief may be granted

The complaint will be dismissed as frivolous and for failure to state a claim on which relief may be granted. An appropriate order will enter