United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
Bristow Marchant United States Magistrate Judge
a civil action filed by the Plaintiff, Larry James Tyler, pro
se, pursuant to 42 U.S.C. § 1983, alleging violations of
his constitutional rights. Plaintiff is detained at the
Darlington County Detention Center, where he appears to be
awaiting civil commitment proceedings pursuant to the South
Carolina Sexually Violent Predator Act, SC Code Ann.
§§ 44-48-10 through 44-48-1 70. See Complaint, ECF
No. 1 at 5.
Complaint is before the Court for pre-service review. See 28
U.S.C. § 1915(e)(2)(B); In re Prison Litigation
Reform Act. 105 F.3d 1131, 1134 (6th Cir.l997)[pleadings
by non-prisoners should also be screened]. Under established
local procedure in this judicial district, a careful review
has been made of the pro se complaint herein pursuant to the
procedural provisions of § 1915, and in light of the
following precedents: Denton v. Hernandez, 504 U.S.
25 (1992); Neitzke v. Williams. 490 U.S. 319 (1989);
Haines v. Kerner. 404 U.S. 519 (1972); Nasim v.
Warden. Maryland House of Corr.. 64 F.3d 951 (4th Cir.
1995) (en banc); and Todd v. Baskerville, 712 F.2d
70 (4th Cir. 1983). Section 1915 permits an indigent litigant
to commence an action in federal court without paying the
administrative costs of proceeding with the lawsuit. However,
to protect against possible abuses of this privilege, the
statute allows a district court to dismiss the case upon a
finding that the action "is frivolous or malicious,
" "fails to state a claim on which relief may be
granted, " or "seeks monetary relief against a
defendant who is immune from such relief." 28 U.S.C.
finding of frivolousness can be made where the complaint
"lacks an arguable basis either in law or in fact."
Denton v. Hernandez. 504 U.S. at 31. Hence, under
§ 1915(e)(2)(B), a claim based on a meritless legal
theory may be dismissed sua sponte. Neitzke v.
Williams. 490 U.S. 319. Further, while this Court is
also required to liberally construe pro se documents, holding
them to a less stringent standard than those drafted by
attorneys, Erickson v. Pardus. 551 U.S. 89, 94
(2007)(quoting Estelle v. Gamble. 429 U.S. 97, 106
(1976)), the requirement of liberal construction does not
mean that the Court can ignore a clear failure in the
pleading to allege facts which set forth a claim currently
cognizable in a federal court. Weller v. Dep't of
Soc. Servs.. 901 F.2d 387 (4th Cir. 1990). Such is the
alleges that Richard Jones, a public defender for Darlington
County at the time of the alleged incidents, violated his
Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment
rights. Complaint, ECF No. 1 at 4. Plaintiff contends that he
was arrested and served with a warrant that contained false
information on September 24, 2011. Specifically, Plaintiff
alleges that police officer Eric Hodges lied to obtain the
arrest warrant by stating that Plaintiff had shown a nude
picture of Plaintiff (on Plaintiffs cell phone) to minors
when Plaintiff actually had a pair of swim shorts on in the
photograph. Defendant Jones was appointed as Plaintiffs
attorney a couple of weeks after Plaintiffs arrest. Plaintiff
complains that the Defendant agreed with Darlington County
officers to support the false warrant, search and seizure
warrants, and criminal charges, and did nothing to fight the
false statements Hodges allegedly made to the Darlington
County Grand Jury. Plaintiff also asserts that the Defendant
"did nothing in the face of the evidence that the photos
show [Plaintiff] wearing swim shorts and no nudity." He
contends that the Defendant should have asked that the
charges against him be dismissed, but failed to do so and
instead conspired with police, prosecutors, the judge, and
his public defenders to make sure Plaintiff was convicted.
ECF No. 1 at 6-9. Plaintiff lists his injuries as "equal
protection, conspiracy, obstruction of justice, loss of
liberty, los[t] wages, loss of medical care for chronic
migraine pain, loss of family relations, loss of property
over $3, 000, personal humiliation, mental anguish, [and]
injuries to the quality of [his] life." ECF No. 1 at 10.
He requests declaratory and injunctive relief, as well as
monetary damages. Id. at 11-13, This action is
subject to summary dismissal because the Defendant, a public
defender who represented Plaintiff in his I proceedings, is
not a state actor under § 1983, as an attorney, whether
retained, court-appointed, or a public defender, does not act
under color of state law. See Vermont v. Brillon, 556
U.S. 81, 91 (2009) [noting that a publicly assigned or
privately retained counsel for a criminal defendant is not
ordinarily considered a state actor]; Polk Cnty. v.
Dodson, 454 U.S. 312, 317-324 nn. 8-16 (1981)["A lawyer
representing a client is not, by virtue of being an officer
of the court, a state actor 'under color of state
law' within the meaning of § 1983."]; Hall
v. Quillen. 631 F.2d 1154, 1155-1156 & nn. 2-3 (4th
Cir. 1980)[court-appointed attorney]; Peas v. Potts.
547 F.2d 800 (4th Cir. 1976)[private attorney]. Therefore,
Plaintiff may not maintain this action in this Court against
even if Jones was a proper party Defendant,
Plaintiffs case also suffers from additional infirmities.
With respect to Plaintiffs claim for conspiracy, he appears
to allege that the Defendant conspired with prosecutors,
another public defender, police officers, and a judge to
obtain Plaintiffs conviction. However, to establish a civil
conspiracy under § 1983, a Plaintiff must present
evidence that the Defendants acted jointly in concert, and
that some overt act was done in furtherance of the conspiracy
which resulted in the deprivation of a constitutional right.
Glassman v. Arlington Cnty., 628 F.3d 140 (201
(Writing Hinkle v. City of Clarksburg. 81 F.3d 416
(4th Cir. 1996)). As such, at this stage of review Plaintiffs
factual allegations must reasonably lead to the inference
that the Defendant came to a mutual understanding with others
to try to "accomplish a common and unlawful plan."
Id. His allegations must do more than simply set
forth "rank speculation and conjecture, "
especially when the actions alleged are capable of innocent
interpretation. Id. at 422. Here, however, Plaintiff
offers only conclusory and unsupported allegations that there
was an agreement or meeting of the minds between the
Defendant and others for an improper purpose. There are no
actual "facts" presented in Plaintiffs allegations
to support such a claim; indeed, Plaintiff has only named one
defendant. Plaintiffs conclusory allegations are not
sufficient to state a claim for civil conspiracy, and this
claim is therefore subject to summary dismissal. See
generally Ashcroft v. Iqbal. 556 U.S. 662, 677-679
(2009); Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007); see also Simmons v. Sacramento County
Superior Court, 318 F.3d 1156, 1161 (9th Cir.
2003)[conclusory allegations of conspiracy between private
attorney and state officer insufficient to support §
1983 claim], Additionally, Plaintiffs claim for malicious
prosecution/denial of due process are subject to summary
dismissal based on the United States Supreme Court's
decision in Heck v. Humphrey, 512 U.S. 477 (1994).
In Heck, the United States Supreme Court held that a
state prisoner's claim for damages is not cognizable
under § 1983 where success of the action would
implicitly question the validity of the conviction or
duration of the sentence at issue, unless the prisoner can
demonstrate that the conviction or sentence has been
previously invalidated. Heck, 512 U.S. at 486-487,
Here, to the extent that Plaintiff is challenging his state
court conviction(s), since he has not alleged a favorable
termination, any claim that the Defendant maliciously
prosecuted him is barred by Heck and must be
dismissed. See Lambert v. Williams. 223 F.3d 257,
260-261 (4th Cir. 2000)[claim for malicious prosecution
requires a showing that the initiation or maintenance of a
proceeding against the plaintiff was without probable cause
to support it and a termination thereof occurred in favor of
the plaintiff], cert, denied. 531 U.S. 1130 (2001);
Brooks v. City of Winston-Salem. 85 F, 3d 178, 183
(4th Cir. 1996)[Claim for malicious prosecution does
"not accrue until a favorable termination is
obtained."]; Roesch v. Otarola, 980 F.2d 850,
853-854 (2d Cir. 1992)[holding that requirement that a
plaintiff receive favorable termination applies to claims of
false arrest, false imprisonment, and malicious prosecution].
Plaintiff also appears to be requesting relief that would
result in his being released from custody. However, any such
relief may only be obtained in a habeas action. See
Preiser v. Rodriguez. 411 U.S. 475, 500 (1973)
[complaint or petition challenging the fact or duration of
confinement should be construed and processed as a habeas
corpus petition, while a complaint or petition challenging
the conditions of confinement should be construed and
processed as a complaint pursuant to 42 U.S.C. § 1983].
In Heck, the Court reiterated that release from
prison is not a remedy available under 42 U.S.C. § 1983.
Heck, 512 U.S. at 481 [stating that "habeas
corpus is the exclusive remedy for a state prisoner who
challenges the fact or duration of his confinement and seeks
immediate or speedier release, even though such a claim may
come within the literal terms of § 1983"].
Therefore, if Plaintiff wishes to challenge the duration of
his confinement, he will need to obtain habeas forms from the
Clerk of Court and file a separate action, after he has fully
exhausted his state court remedies.
on the foregoing, it is recommended that the Court dismiss
Plaintiffs Complaint without prejudice and without issuance
and service of process.
attention is directed to the important notice on. the next
of Right to File Objections to Report and
parties are advised that they may file specific written
objections to this Report and Recommendation with the
District Judge, Objections must specifically identify the
portions of the Report and Recommendation to which objections
are made and the basis for such objections, "[I]n the
absence of a timely filed objection, a district court need
not conduct a de novo review, but instead must 'only
satisfy itself that there is no clear error on the face of
the record in order to accept the recommendation.'"
Diamond v. Colonial Life & Ace, Ins, Co.. 416
F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory
written objections must be filed within fourteen (14) days of
the date of service of this Report and Recommendation. 28
U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P.
6(a), (d). Filing by mail pursuant to Federal ...