Brumit v. Perkins

Full title: LARRY S. BRUMIT, Plaintiff/Appellant, RUSSEL N. PERKINS, Defendant/Appellee

Court: Court of Appeals of Tennessee. Middle Section, at Nashville

Date published: Dec 12, 1997

Appeal No. 01A01-9707-CV-00335 (Tenn. Ct. App. Dec. 12, 1997)

Opinion

Appeal No. 01A01-9707-CV-00335.

December 12, 1997

Appeal From The Rutherford Circuit Court At Murfreesboro, Tennessee, Honorable Robert E. Corlew, Judge, Rutherford Circuit No. 37544.

Larry S. Brumit, PRO S.E. FOR PLAINTIFF/APPELLANT

Heather C. Ross, ATTORNEY FOR DEFENDANT/APPELLEE

AFFIRMED AND REMANDED

TODD; Presiding Judge, Middle Section

OPINION

The captioned plaintiff has appealed from the judgment of the Trial Court dismissing his suit against the captioned defendant for failure to state a claim for which relief can be granted.

The nine issues presented by plaintiff to this Court constitute a single issue of whether his suit should have been dismissed on the ground stated above.

The complaint asserts:

1. Plaintiff is presently in custody of Tennessee Department of Correction. (The cause of incarceration is not stated).

2. Defendant is an assistant public defender.

3. Defendant advised plaintiff to show no remorse during a trial, thereby causing plaintiff to appear to be a cold bloodied killer. (The nature of the case on trial is not stated.)

4. Defendant refused to retire from the case when plaintiff dismissed him.

5. Defendant was incompetent to handle the case.

6. Defendant has failed to answer plaintiff's letters and calls.

7. Defendant has violated plaintiff's constitutional rights.

8. Plaintiff invokes his rights under 42 U.S.C. § 1983.

The defendant filed a motion to dismiss for failure to state a claim for which relief can be granted.

All personnel of public defenders are immune to suit for any act of negligence arising from the execution of the official duties of that office with two inapplicable exceptions. T.C.A. § 8-14-209.

A public defender does not act under color of state law when performing a lawyer's traditional functioning as counsel to a defendant in a criminal proceeding. Polk County v. Dodson, 4540 U.S. 312 (1981). Acting under color of state law is essential for a cause of action under 42 U.S.C. § 1983.

No error is found in the judgment of the Trial Court, which is affirmed with costs. The cause is remanded to the Trial Court for any necessary further proceedings.

AFFIRMED AND REMANDED

___________________________________ HENRY F. TODD, PRESIDING JUDGE

CONCURS:

____________________________ BEN H. CANTRELL, JUDGE

____________________________ WALTER W. BUSSART, JUDGE