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Pollard v. Albert

United States District Court, D. Vermont

June 16, 2015

Monica Pollard, Plaintiff,
v.
Daniel Albert and Vermont State Medical Examiner Agency, Defendants.

OPINION AND ORDER (Doc. 1)

J. GARVAN MURTHA, District Judge.

Pro se plaintiff Monica Pollard moves to proceed in forma pauperis against Defendants Daniel Albert ("Albert") and the Vermont State Medical Examiner Agency ("State Medical Examiner"), alleging constitutional rights violations, professional negligence, and legal malpractice (Doc. 1-2.) Because the financial affidavit in support of the motion meets the requirements of 28 U.S.C. § 1915(a), the motion for leave to proceed in forma pauperis is GRANTED.

Discussion

I. Factual Background and Procedural History

Mr. Pollard's claims arise from events leading to a Vermont state court conviction for manslaughter, [1] for which he served a term of imprisonment from 1985 until his release in 2000. (Doc. 1-2 at 2.) A review of the case law history indicates on July 9, 1985, Mr. Pollard "fatally stabbed a man in a department store in St. Albans." State v. Pollard, 657 A.2d 185, 187 (Vt. 1995). Initially, Pollard was sentenced to a term of fifty years to life imprisonment. Id . However, in 1995 the Vermont Supreme Court vacated his plea, conviction, and sentence, concluding the evidence presented at his mental competency hearing prior to entering a guilty plea did not satisfy the minimum due process standard. Id. at 205-06.

In the proposed Complaint before the Court, Pollard alleges the victim, Steve Lawrence, was treated for his injuries at Krebs Memorial Hospital in St. Albans, Vermont ("the Hospital"). (Doc. 1-2 at 4.) He alleges physicians at the Hospital committed involuntary manslaughter and are responsible for Lawrence's death because they performed a splenectomy "instead of immediately attending to and treating the bleeding heart and wounds." Id. at 4-5. Pollard claims that, by failing to perform cardiothoracic surgery first, Lawrence unnecessarily bled to death. Id. at 5. He alleges the Hospital's grossly negligent treatment of Lawrence constituted an intervening cause that contributed to Lawrence's death, and therefore, Pollard should not have been convicted of murder. Id. at 18.

Pollard brings suit against Defendants in their official capacities, claiming the State Medical Examiner "should have charged the Krebs Memorial Hospital Surgeons for the death of Steve Lawrence" due to their alleged gross negligence, and the State Medical Examiner "should have recognized the causes of Steve Lawrence's death, " including the "useless [s]plenectomy." Id. at 21-22. Pollard alleges this act or omission constitutes professional negligence.

Attorney Daniel Albert (a court-appointed public defender) represented Pollard during the criminal prosecution. Id. at 19. Pollard claims Albert was ineffective as his counsel and negligent in failing to procure medical expert witness testimony to challenge the cause of death listed by the State Medical Examiner. Id. at 20.

Pollard further alleges the Defendants are liable under 42 U.S.C. § 1983 for violating his Fifth, Sixth, and Fourteenth Amendment rights. Id. at 2, 21. He seeks $41 million in compensatory and punitive damages. Id. at 21.

II. Section 1915(e)(2)(B) Review

Pro se filings are "to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citations omitted). A district court shall dismiss a case, however, if it determines the complaint "(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B).

A court also has inherent authority to dismiss a case that presents no meritorious issue. See Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (district court may dismiss frivolous complaint sua sponte even where plaintiff paid filing fee); Pillay v. INS, 45 F.3d 14, 17 (2d Cir. 1995) (court has "inherent authority" to dismiss petition that "presents no arguably meritorious issue").

The proposed Complaint fails to state any viable legal claims against attorney Albert. As to the § 1983 claims, a court-appointed attorney "does not act under color of state law when performing a lawyer's traditional functions as counsel to a defendant in a criminal proceeding" and is not subject to § 1983 liability for such actions. Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981); accord Rodriguez v. Weprin, 116 F.3d 62, 65-66 (2d Cir. 1997).

Furthermore, absent the state's consent to be sued or an express or statutory waiver of immunity, the Eleventh Amendment bars suits in federal court for damages against state officials acting in their official capacities. Woods v. Rondout Valley Cent. Sch. Dist. Bd. of Educ., 466 F.3d 232, 236 (2d Cir. 2006). As to Pollard's common law negligence claims against Albert, under the Vermont Tort Claims Act, Vt. Stat. Ann. tit. 12, §§ 5601-06, only the State, not its employees, may be held liable for injuries caused by negligence. Vt. Stat. Ann. tit. 12, § 5602; see also Bradshaw v. Joseph, 666 A.2d 1175, 1178 (Vt. 1995) (holding that "public defenders ...


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