Bradley Linn v. Carolyn Saitin

Case: 14-30094 Document: 00512708555 Page: 1 Date Filed: 07/23/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-30094 FILED
Summary Calendar July 23, 2014
Lyle W. Cayce
Clerk
BRADLEY LINN,
Plaintiff-Appellant
v.
CAROLYN SAITIN; ALAN J. GOLDEN,
Defendant-Appellee
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:13-CV-3238
Before DAVIS, CLEMENT and COSTA, Circuit Judges.
PER CURIAM: *
Bradley Linn, Louisiana pre-trial detainee #80041, filed a 42 U.S.C.
§ 1983 complaint, naming as defendants his appointed public defender and her
supervisor. The district court granted leave to proceed in forma pauperis (IFP)
but later dismissed the complaint as frivolous pursuant to 28 U.S.C. § 1915(e).
Linn now appeals.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 14-30094 Document: 00512708555 Page: 2 Date Filed: 07/23/2014
No. 14-30094
“To plead a constitutional claim for relief under § 1983, [a plaintiff must]
allege a violation of a right secured . . . by the Constitution or laws of the United
States and a violation of that right by one or more state actors.” Johnson v.
Dallas Indep. Sch. Dist., 38 F.3d 198, 200 (5th Cir. 1994). A district court may
dismiss an IFP complaint as frivolous under § 1915(e)(2)(B)(i) if it lacks an
arguable basis in law or fact. Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir.
1997). We review the district court’s dismissal of a complaint as frivolous
pursuant to § 1915(e)(2)(B)(i) for an abuse of discretion. Brewster v. Dretke,
587 F.3d 764, 767 (5th Cir. 2009).
On appeal, Linn argues that the defendants have provided ineffective
assistance, thus denying his rights to due process and a fair trial. As the
district court concluded, a court-appointed attorney generally is not a state
actor for purposes of § 1983 liability. See Polk County v. Dodson, 454 U.S. 312,
324-25 (1981). If his brief is liberally construed, see Haines v. Kerner, 404 U.S.
519, 520-21 (1972), Linn appears to assert that his counsel acted in “concert”
with the prosecution to secure his conviction. Court-appointed attorneys may
be liable under § 1983 “for intentional misconduct, ‘under color of’ state law,
by virtue of alleged conspiratorial action with state officials that deprives their
clients of federal rights.” Tower v. Glover, 467 U.S. 914, 923 (1984). However,
Linn has made only generalized allegations of concerted action, which are
insufficient to establish the existence of a conspiracy. See Lynch v. Cannatella,
810 F.2d 1363, 1369-70 (5th Cir. 1987). We conclude that the district court did
not abuse its discretion by dismissing the instant complaint. See Brewster, 587
F.3d at 767.
We also deny Linn’s motion for leave to proceed in forma pauperis (IFP)
on appeal as unnecessary; the district court previously granted him leave to
proceed IFP on appeal.
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Case: 14-30094 Document: 00512708555 Page: 3 Date Filed: 07/23/2014
No. 14-30094
The district court’s dismissal of Linn’s complaint as frivolous counts as
one strike for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103
F.3d 383, 387-88 (5th Cir. 1996). Linn is warned that, if he accumulates three
strikes, he will be barred from proceeding IFP in any civil action or appeal filed
while he is incarcerated or detained in any facility unless he is under imminent
danger of serious physical injury. See § 1915(g).
AFFIRMED; MOTION FOR LEAVE TO APPEAL IN FORMA
PAUPERIS DENIED AS UNNECESSARY; SANCTION WARNING ISSUED.
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