United States District Court, D. Utah
MEMORANDUM DECISION & ORDER DISMISSING
J. Shelby Chief District Judge
Brian Oblad, proceeds in forma pauperis,
see 28 U.S.C.S. § 1915 (2019), in this pro
se civil-rights suit, see 42 id.
§ 1983. Having screened, 28 id. § 1915A,
the Complaint, (Doc. No. 3), the Court now orders dismissal.
Standard of Review
Court shall dismiss claims in a complaint filed in forma
pauperis that are frivolous, malicious, or fail to state
a claim upon which relief may be granted. See 28
U.S.C.S. § 1915(e)(2)(B) (2019). "Dismissal of a
pro se complaint for failure to state a claim is proper only
where it is obvious that the plaintiff cannot prevail on the
facts he has alleged and it would be futile to give him an
opportunity to amend.” Perkins v. Kan. Dep't of
Corrs., 165 F.3d 803, 806 (10th Cir. 1999). When
reviewing a complaint's sufficiency, the Court
"presumes all of plaintiff's factual allegations are
true and construes them in the light most favorable to the
plaintiff." Hall v. Bellmon, 935 F.2d 1106,
1109 (10th Cir. 1991).
Plaintiff is pro se, the Court construes his
pleadings "liberally" and holds them "to a
less stringent standard than formal pleadings drafted by
lawyers." Id. at 1110. However, "[t]he
broad reading of the plaintiff's complaint does not
relieve [him] of the burden of alleging sufficient facts on
which a recognized legal claim could be based."
Id. While Plaintiff need not describe every fact in
specific detail, "conclusory allegations without
supporting factual averments are insufficient to state a
claim on which relief can be based." Id.
asserts prison contract attorneys Cundick and Freestone
violated his federal civil rights by denying him meaningful
access to the courts when they provided inadequate legal
the Court concludes that Defendants are not culpable under
federal civil-rights law because, as private attorneys
contracted by the Utah Department of Corrections to provide
initial legal services for state prisoners, they are not
“state actors.” First, though lawyers are
generally licensed by states, “they are not officials
of government by virtue of being lawyers.” In re
Griffiths, 413 U.S. 717, 729 (1973). Further, precedent
holds that private contractors' acts do not become
governmental acts under § 1983 by reason of their
significant or even total involvement in executing the terms
of public contracts. Rendell-Baker v. Kohn, 457 U.S.
830, 841 (1982). “[The Fourteenth] Amendment erects no
shield against merely private conduct, however discriminatory
or wrongful.” Shelly v. Kramer, 334 U.S. 1, 14
earlier case decided in this Court is persuasive: Smith
v. Freestone, No. 2:97-CV-944. A Report and
Recommendation adopted in a dismissal order by the
district-court judge, states, “Prison contract
attorneys do not work under color of state law for purposes
of § 1983.” See id., slip op. at 3 (D.
Utah Aug. 20, 1998). The dismissal was affirmed by the Tenth
Circuit, ruling that attorneys contracting with the state to
provide legal help to inmates were not acting under
“color of state law” in performing those duties.
Smith v. Freestone, No. 99-4005, 1999 U.S. App.
LEXIS 16766, at *2 (10th Cir. July 20, 1999); cf. Polk
County v Dodson, 454 U.S. 312, 321 (1981) (“[A]
public defender is not amenable to administrative direction
in the same sense as other employees of the State.”).
final point: Like public defenders, Defendants work under
canons of professional responsibility that govern their
exercise of independent judgment on behalf of clients.
“[T]he canons of professional ethics impose limits on
permissible advocacy.” Dodson, 454 U.S. at
323. In other words, every lawyer, whether privately retained
or publicly appointed, is charged to avoid clogging the
courts with frivolous claims. See id.
IS HEREBY ORDERED that this action is
DISMISSED with prejudice, under 28 U.S.C.S.
§ 1915(e)(2)(B) (2019), because Plaintiff failed to