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    Velazquez v. Tulin - Document No. 2

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    ORDER that Plaintiff's complaint is dismissed, with prejudice. The Clerk is directed to enter judgment against Plaintiff and TO CLOSE THIS CASE. Plaintiff is assessed the 250.00 filing fee. The Clerk is directed to send a copy of this order to Inmate Accounting at the address in the order.Signed by Judge Susan C Bucklew on 7/21/2005. (SM) 8:2005cv01344 Florida Middle District Court

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    Velazquez v. Tulin - Document No. 2

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    ORDER that Plaintiff's complaint is dismissed, with prejudice. The Clerk is directed to enter judgment against Plaintiff and TO CLOSE THIS CASE. Plaintiff is assessed the 250.00 filing fee. The Clerk is directed to send a copy of this order to Inmate Accounting at the address in the order.Signed by Judge Susan C Bucklew on 7/21/2005. (SM) 8:2005cv01344 Florida Middle District Court

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    ORDER that Plaintiff's complaint is dismissed, with prejudice. The Clerk is directed to enter judgment against Plaintiff and TO CLOSE THIS CASE. Plaintiff is assessed the 250.00 filing fee. The Clerk is directed to send a copy of this order to Inmate Accounting at the address in the order.Signed by Judge Susan C Bucklew on 7/21/2005. (SM) 8:2005cv01344 Florida Middle District Court

    Copyright:

    Public Domain
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    138 views3 pages

    Velazquez v. Tulin - Document No. 2

    Uploaded by

    Justia.com
    ORDER that Plaintiff's complaint is dismissed, with prejudice. The Clerk is directed to enter judgment against Plaintiff and TO CLOSE THIS CASE. Plaintiff is assessed the 250.00 filing fee. The Clerk is directed to send a copy of this order to Inmate Accounting at the address in the order.Signed by Judge Susan C Bucklew on 7/21/2005. (SM) 8:2005cv01344 Florida Middle District Court

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    Velazquez v. Tulin Doc.

    2
    Case 8:05-cv-01344-SCB-TBM Document 2 Filed 07/21/2005 Page 1 of 3

    UNITED STATES DISTRICT COURT


    MIDDLE DISTRICT OF FLORIDA
    TAMPA DIVISION

    JUAN E. VELAZQUEZ,

    Plaintiff,

    -vs- Case No. 8:05-cv-1344-T-24TBM

    ATTORNEY RONALD TULIN,

    Defendant.
    ________________________________

    ORDER

    Pro se prisoner Plaintiff, who is incarcerated at Jackson Correctional Institution,

    Jackson County, Florida, filed a 42 U.S.C. § 1983 civil rights complaint against his privately-

    retained attorney. Included with the complaint was a copy of the contract Plaintiff

    Velazquez signed when he retained Attorney Tulin to represent him in his state criminal

    case. Plaintiff was charged with trafficking in cocaine, conspiracy to traffic in cocaine, and

    violation of parole.

    In his complaint, Plaintiff alleges that counsel "did not keep his agreement under the

    constitutions and laws which led me to correct the problem he caused for me." He also

    contends that his attorney violated Plaintiff's Eighth Amendment rights because Plaintiff has

    experienced "a lot of pain and suffering" as a result of counsel's actions.

    Plaintiff seeks to have the fees he paid the attorney returned "since I had to do my

    own case that I paid him for." He also seeks $300,000 for all the pain and suffering he [the

    attorney] "caused me that will remain in my mind for the rest of my life."

    Dockets.Justia.com
    Case 8:05-cv-01344-SCB-TBM Document 2 Filed 07/21/2005 Page 2 of 3

    DISCUSSION

    A review of the file demonstrates that, for the following reasons, the complaint must

    be DISMISSED, with prejudice.

    In any § 1983 action, the initial inquiry must focus on whether the two essential

    elements to a § 1983 action are present:

    1. whether the conduct complained of was committed by a person acting


    under color of state law; and

    2. whether this conduct deprived a person of rights, privileges, or immunities


    secured by the Constitution or laws of the United States.

    Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds by Daniels v.

    Williams, 474 U.S. 327, 330-31 (1986); Tillman v. Coley, 886 F.2d 317, 319 (11th Cir.),

    reh'g denied en banc, 893 F.2d 346 (11th Cir. 1989); Barfield v. Brierton, 883 F.2d 923, 934

    (11th Cir. 1989); Cornelius v. Town of Highland Lake, Alabama, 880 F.2d 348, 352 (11th

    Cir.), reh'g denied en banc, 887 F.2d 1093 (11th Cir. 1989), cert. denied, Spears v.

    Cornelius, 494 U.S. 1066 (1990) overruled on other grounds by White v. Lemacks, 183

    F.3d 1253, 1259 (1999) citing Collins v. City of Harker Heights, 503 U.S. 115 (1992).

    Plaintiff fails to meet the elements described above. First, Plaintiff has not shown

    that his attorney was acting under color of state law. A public defender does not act under

    color of state law when performing a lawyer's traditional functions as counsel to a

    defendant in a criminal proceeding Polk County v. Dodson, 454 U.S. 312 (1981). Likewise

    a lawyer representing a private client in criminal proceedings cannot at the same time

    represent the State, Georgia v. McCollum, 505 U.S. 42 (1992), and does not act under

    color of state law.

    -2-
    Case 8:05-cv-01344-SCB-TBM Document 2 Filed 07/21/2005 Page 3 of 3

    Accordingly, the Court orders:

    1. That Plaintiff's complaint is dismissed, with prejudice. The Clerk is directed to

    enter judgment against Plaintiff and to close this case.

    2. That Plaintiff is assessed the $250.00 filing fee. The Clerk is directed to send a

    copy of this order to Inmate Accounting 1711 Mahan Drive, Tallahassee, FL 32308

    Attention: Jeffrey R. Straley, Professional Account Supervisor.

    ORDERED in Tampa, Florida, on July 21, 2005.

    Juan E. Velazquez

    -3-

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