IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
DAVID L. DANIELS
Civil No. 06-5119
JOHN R. VANWINKLE,
Attorney; IAN J. GILBERT,
Attorney; and CHRISTIE
P. DAVILA, Legal Assistant
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
Plaintiff’s complaint was filed on June 29, 2006. He proceeds pro se and in forma
pauperis. Before the undersigned is the issue of whether the complaint should be served.
Daniels is currently incarcerated in the Benton County Detention Center (BCDC). He
indicates he retained Ian Gilbert to represent him in connection with pending criminal charges.
Daniels alleges Gilbert charged him $1,300 and then failed to show up for arraignment and
otherwise did not represent Daniels in a manner he believed to be satisfactory.
Additionally, Daniels alleges Christie Davila, a legal assistant for Gilbert, made a
prejudicial comment about his case. Daniels maintains the comment defamed his character.
Because Daniels was unhappy with the representation he was receiving, he wrote John
R. VanWinkle and informed him about the situation. Daniels asked for a refund of the fees he
Case 5:06-cv-05119-JLH Document 4 Filed 07/05/2006 Page 1 of 3
Daniels v. VanWinkle et al
Daniels’ claims are subject to dismissal. Ian Gilbert and John VanWinkle are not subject
to suit under § 1983. A § 1983 complaint must allege that each defendant, acting under color
of state law, deprived plaintiff of "rights, privileges or immunities secured by the Constitution
and laws" of the United States. 42 U.S.C. § 1983. DuBose v. Kelly, 187 F.3d 999 (8th Cir.
1999). An attorney does not act under color of state law while representing a client. Polk
County v. Dodson, 454 U.S. 312, 318, 102 S. Ct. 445, 70 L. Ed. 2d 509 (1981) (public defender
does not act under color of state law when performing traditional functions as counsel)