Richardson v. Fleming
Decision Date | 22 July 1981 |
Docket Number | No. 80-1958,80-1958 |
Citation | 651 F.2d 366 |
Parties | Ronald P. RICHARDSON, Petitioner-Appellant, v. Les FLEMING, Respondent-Appellee. Summary Calendar. . Unit A |
Court | U.S. Court of Appeals — Fifth Circuit |
Ronald P. Richardson, pro se.
Les Fleming, pro se.
Appeal from the United States District Court for the Southern District of Texas.
Before AINSWORTH, GARZA and SAM D. JOHNSON, Circuit Judges.
Appellant, Ronald P. Richardson, incarcerated in a Texas prison, brought this civil rights suit, based upon 42 U.S.C. § 1983 1 against his retained attorney who represented him in two criminal actions in Harris County, Texas. Appellant's complaint, the thrust of which will be discussed below, did not seek release or any other form of modification of confinement, but did seek a declaratory judgment and monetary damages. Appellee, Les Fleming (Richardson's attorney), filed an answer containing a general denial and a defense of statute of limitations.
On May 27, 1980, the District Court sua sponte dismissed Richardson's suit for failure to state a claim upon which relief can be granted. 2 Relying upon Nelson v. Stratton, 469 F.2d 1155 (5th Cir. 1972), cert. denied, 410 U.S. 957, 93 S.Ct. 1432, 35 L.Ed.2d 691 (1973), the District Court held that acts or omissions of retained counsel must fail under § 1983 for lack of state action. As an additional basis for dismissal, the District Court held that § 1983 was not intended as a means for prosecuting legal malpractice claims against attorneys. O'Brien v. Colbath, 465 F.2d 358, 359 (5th Cir. 1972). Richardson now appeals the dismissal.
In testing the sufficiency of a § 1983 complaint it must be remembered that the complaint should not be dismissed unless it appears that the plaintiff can prove no set of facts which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The allegations of the complaint, especially a pro se complaint, must be read in a liberal fashion, Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972), and they must be accepted as true in testing their sufficiency, Haines v. Kerner, supra, Cruz v. Beto, supra. A prisoner's pro se complaint "however inartfully pleaded" must be held to "less stringent standards than formal pleadings drafted by lawyers" and can only be dismissed for failure to state a claim if it appears "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). See Williams v. Rhoden, 629 F.2d 1099 (5th Cir. 1980); Jackson v. Reese, 608 F.2d 159 (5th Cir. 1979); Slavin v. Curry, 574 F.2d 1256 (5th Cir. 1978); Cruz v. Skelton, 543 F.2d 86 (5th Cir. 1976), cert. denied, 433 U.S. 911, 97 S.Ct. 2980, 53 L.Ed.2d 1096 (1977). Covington v. Cole, 528 F.2d 1365 (5th Cir. 1976); See also, Finley v. Staton, 542 F.2d 250, (5th Cir. 1976); Williams v. McCall, 531 F.2d 1247 (5th Cir. 1976); Taylor v. Gibson, 529 F.2d 709 (5th Cir. 1976); Goff v. Jones, 500 F.2d 395 (5th Cir. 1974); Reed v. Jones, 483 F.2d 77 (5th Cir. 1973); and Madison v. Purdy, 410 F.2d 99 (5th Cir. 1969).
Keeping this standard in mind, we turn to the content of Richardson's complaint. In summary, Richardson's complaint alleges that he retained Fleming to represent him in two criminal actions involving marijuana and that Fleming promised to represent him to the best of his ability. The complaint goes on to state that Fleming breached this promise and that Fleming failed to give Richardson adequate legal representation under Richardson's plea of not guilty in that Fleming, without the informed consent of his client, stipulated that Richardson was in possession of marijuana, failed to call Richardson to the stand, stipulated to the testimony of the state's chemist and waived any cross-examination of the chemist, failed to call any witnesses or present any evidence on behalf of Richardson, and falsely represented to the court that Richardson was an agent for the police. Richardson also alleges that Fleming completely failed to prepare any defense whatsoever even though a substantial defense could have been prepared. In addition to these charges of breach of contract and professional malpractice, paragraph 5 of Richardson's complaint alleges, " 'The action on the part of defendant Fleming was part of a well 'concerted plot' to deprive plaintiff of his 'property (money) and his liberty.' " In paragraph 8 of his complaint, Richardson further alleges that "Defendant Fleming did set (sic ) with total interest for the state..." A liberal reading of the allegations contained in paragraphs 5 and 8 of Richardson's complaint, indeed even a fair reading, clearly alleges that Fleming conspired with the prosecution in denying Richardson of his right to adequate legal representation and a fair trial. Richardson's complaint having alleged a conspiracy between his attorney and the prosecution to deny him his rights, we must now ask whether or not such an allegation states a cause of action under 42 U.S.C. § 1983? We think it does.
As mentioned above, the District Court relied upon Nelson v. Stratton, supra, which held there is no § 1983 cause of action against a retained attorney because such an attorney "is not acting under color of state law within the purview of the statute." 429 F.2d at 1155. If this had been the only case relied upon by the District Court in its order of dismissal, it might be reasonably inferred that the District Court failed to view Richardson's complaint as having alleged a conspiracy. However, the District Court also took notice of O'Brien v. Colbath, Hill v. McClellan, United States ex rel. Simmons v. Zilbilich 3 and, in the order granting leave to proceed in Forma Pauperis, also took notice of Skipper v. Brummer. 4 The District Court's application of the holdings in those cases to this case leads us to believe that the District Court, while recognizing the allegation of conspiracy, felt that since Fleming had not conspired with a party acting under color of state law, against whom a successful § 1983 cause of action could be pressed because of immunity, the cause of action against Fleming similarly must fail. Although this result would, not too long ago, have been correct, a series of cases in this Circuit now requires a contrary result. A brief review of the case law in this area is in order.
The case of Lewis v. Brautigam, 227 F.2d 124 (5th Cir. 1955), was the first case in recent history in this Circuit to deal with the theory of immunity for the actions of a state prosecutor charged in a § 1983 action with conspiring to deny a prisoner's due process rights. 5 In that case, Brautigam, the state's attorney, was accused of having conspired with law enforcement officers in intimidating and coercing a criminal defendant to change his not-guilty plea to a guilty plea. Without directly answering whether or not immunity existed, a distinguished panel of this Court recognized that "a prosecuting attorney, who acts outside the scope of his jurisdiction and without authorization of law, cannot shelter himself from liability by the plea that he is acting under color of office." Id. at 129. Fourteen years later in Madison v. Purdy, 410 F.2d 99 (5th Cir. 1969), this Court for the first time held that a state's prosecuting attorney generally enjoys official immunity for those acts within the scope of his jurisdiction but, when a state prosecutor enters into a conspiracy with others acting under color of state law (such as law enforcement officers) to deprive someone of their rights, the state prosecutor may be liable not only because he has exceeded his lawful authority but also because he is vicariously liable under principles of agency, partnership and joint venture. Id. at 102.
The extent to which a prosecutor's immunity might defeat the liability of a private individual with whom the prosecutor had conspired remained unanswered until Guedry v. Ford, 431 F.2d 660 (5th Cir. 1970), wherein this Court held that a private person alleged to have conspired with a state prosecutor, who is entitled to immunity because the acts complained of fell within the scope of his jurisdiction, cannot be held liable since the private person had not conspired with persons against whom a valid claim could be stated. Id. at 664. In other words, the opinion qualified the vicarious liability of a state prosecutor as set forth in Madison v. Purdy, supra, by holding that the color of state law, under which a state prosecutor acted, would not be imparted to a co-conspiring private individual even for the limited purpose of holding only the private individual liable. This legal rule became known as the doctrine of derivative immunity.
The rationale of Guedry v. Ford, supra, continued as the law in this Circuit 6 until and after 7 the Supreme Court's decision in Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), which granted absolute immunity from § 1983 liability for a state prosecutor acting within the scope of his duties in initiating and prosecuting a case. 8
The trend continued in this Circuit until this Court's opinion in Slavin v. Curry, 574 F.2d 1256 (5th Cir. 1978), reh. en banc denied, 583 F.2d 779 (5th Cir. 1978). That case involved a § 1983 suit filed by Slavin, a criminal defendant, against the trial judge, state prosecutors, retained and appointed counsel, court reporters, court-appointed investigator, police officers and witnesses alleging a single conspiracy to manufacture and prosecute him for false charges and for various other acts aimed at denying him his due process rights. In writing for the court, Judge Charles Clark discussed the vicarious liability under § 1983:
The contention that a conspiracy existed which deprived the petitioner of rights guaranteed by...
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