United States District Court, D. South Carolina, Greenville Division
Timothy M. Cain United States District Judge
Derrick Antron Young (“Plaintiff”), a state
prisoner proceeding pro se and in forma pauperis,
filed this action pursuant to 42 U.S.C. § 1983. In
accordance with 28 U.S.C. § 636(b)(1) and Local Civil
Rule 73.02, D.S.C., this matter was referred to a magistrate
judge for pretrial handling. Before the court is the
magistrate judge's Report and Recommendation
(“Report”), recommending that Plaintiff's
action be dismissed without prejudice. (ECF No. 17).
Plaintiff was advised of his right to file objections to the
Report. (ECF No. 17 at 4), and he filed timely objections.
(ECF No. 22). Plaintiff also filed a motion to amend his
complaint and a proposed amended complaint. (ECF Nos. 21 and
Magistrate Judge makes only a recommendation to the court.
The recommendation has no presumptive weight. The
responsibility to make a final determination remains with the
court. Mathews v. Weber, 423 U.S. 261, 270-71
(1976). The court is charged with making a de novo
determination of those portions of the Report to which
specific objection is made, and the court may accept, reject,
or modify, in whole or in part, the recommendation of the
Magistrate Judge, or recommit the matter with instructions.
28 U.S.C. § 636(b)(1). However, the court need not
conduct a de novo review when a party makes only
“general and conclusory objections that do not direct
the court to a specific error in the magistrate's
proposed findings and recommendations.” Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence
of a timely filed, specific objection, the Magistrate
Judge's conclusions are reviewed only for clear error.
See Diamond v. Colonial Life & Accident Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005).
Posey (“Posey”), retained by Plaintiff,
represented Plaintiff in a criminal action. Plaintiff's
original complaint alleged that Posey violated
Plaintiff's Fourteenth Amendment rights by giving false
testimony at a post-conviction relief (“PCR”)
hearing. Plaintiff alleges that Posey denied knowledge of
alleged video or audio recordings related to the underlying
claim. (ECF No. 1 at 3). The magistrate judge determined that
this action is subject to summary dismissal on the basis of
witness immunity. See Mathis v. Goldberg, 538 F.
App'x 310, 211 (4th Cir. 2013) (“[W]itnesses are
absolutely immune from damages for their testimony given in
legal proceedings.” (citing Briscoe v. LaHue,
460 U.S. 325, 335-36 (1983))). Plaintiff objects to the
magistrate judge's recommendation in his Report asserting
that, pursuant to Tower v. Glover, 467 U.S. 914
(1984), Posey is liable under § 1983 for intentional
a retained attorney, such as Posey in the present action,
does not act under color of state law when performing
traditional functions as counsel. See Deas v. Potts,
547 F.2d 800 (4th Cir. 1976). See also Fleming v.
Asbill, 42 F.3d 886, 890 (4th Cir. 1994) (“Private
lawyers do not act ‘under color of state law'
merely by making use of the state's court system”);
Hansen v. Ahlgrimm, 520 F.2d 768, 770 (7th Cir.
1975) (“It is established that a private attorney,
while participating in the trial of private state court
action, is not acting under color of state law”).
in Tower, the Supreme Court concluded that a private
attorney does act under color of state law within the meaning
of § 1983 when engaged in a conspiracy with state
officials to deprive the defendant of federal rights.
467 U.S. at 919-20. In order to establish a civil conspiracy
under § 1983, Plaintiff must allege sufficient factual
allegations that would “reasonably lead to the
inference” that the co-conspirators “positively
or tacitly came to a mutual understanding to try to
accomplish a common and unlawful plan” to deprive
Plaintiff of a constitutional right. Ruttenberg v.
Jones, 283 F. App'x 121, 132 (4th Cir. 2008);
Hinkle v. City of Clarksburg, 81 F.3d 416, 421 (4th
Cir. 1996); see also Dennis v. Sparks, 449 U.S. 24,
27 (1980) (A defendant may be acting under color of state law
if he is “a willful participant in joint action with
the state or its agents.”).
original complaint, Plaintiff failed to sufficiently allege a
conspiracy claim involving his attorney. Plaintiff alleged no
factual basis to support that Posey engaged in joint action
with any state or governmental employee or entity. Rather, he
asserted in vague and conclusory fashion that Posey conspired
with the Attorney General's office and possibly the PCR
judge to suppress the alleged video evidence. (ECF No. 1 at
5). The “naked assertion of a conspiracy . . . without
supporting operative facts establishing an agreement between
the defense attorney and the prosecutor or some other state
actor, and a common plan to put the agreement into effect, is
insufficient to implicate § 1983.” Bishop v.
Richardson, 852 F.2d 565, at *1 (4th Cir. 1988)
(unpublished table opinion) (quoting Phillips v.
Mashburn, 746 F.2d 782, 785 (11th Cir. 1984) (internal
quotation marks omitted)); see also Albrecht v.
Hamilton, No. 06-4313, 2007 WL 1217955 (3d Cir. Apr. 26,
2007) (dismissing a similar conspiracy claim). Plaintiff
failed to assert sufficient factual allegations to state a
plausible claim that Posey acted under color of state law by
conspiring with the Attorney General's office or the PCR
judge to deprive Plaintiff of his federal rights prior to or
during the PCR process.
Plaintiff filed his objections, he filed a motion to amend
his complaint (ECF No. 21) and a proposed amended complaint
asserting additional facts and claims (ECF No. 24). A motion
to amend a pleading is governed by Federal Rule of Civil
Procedure 15(a). Plaintiff is allowed to amend his Complaint
once as a matter of right pursuant to Rule 15(a)(1)(B). Rule
15(a)(1)(B) provides that “[a] party may amend its
pleading once as a matter of course within . . . if the
pleading is one to which a responsive pleading is required,
21 days after service of a responsive pleading.”
Fed.R.Civ.P. 15(a)(1)(B). No responsive pleading has been
filed in this case. Accordingly, Plaintiff's Motion to
Amend is allowed as a matter of course.
granted Plaintiff's Motion to Amend, the court must
conduct a frivolity review of Plaintiff's amended
complaint. See 28 U.S.C. § 1915(e)(2); 28
U.S.C. § 1915A(a). Section 1915 provides that courts
shall review complaints in which prisoners seek relief from a
governmental entity or officer, and “shall
dismiss” any action that is “frivolous or
malicious” or that “fails to state a claim on
which relief may be granted.” 28 U.S.C. §
1915(e)(2)(B); see also 28 U.S.C. § 1915A(b).
Upon review, the court finds that Plaintiff's complaint,
as amended, should be dismissed pursuant to §
district court's review of a case for factual
frivolousness under § 1915 is guided by the Supreme
Court's decision in Denton v. Hernandez, 504
U.S. 25, 32 (1992). When a plaintiff proceeds in forma
pauperis, § 1915 “gives courts the authority
to pierce the veil of the complaint's factual
allegations[, ] mean[ing] that a court is not bound, as it
usually is when making a determination based solely on the
pleadings, to accept without question the truth of the
plaintiff's allegations.” Id. (internal
quotation marks omitted). The “initial assessment of
the in forma pauperis plaintiff's factual
allegations must be weighted in favor of the plaintiff,
” id., and “[a]n in forma
pauperis complaint may not be dismissed . . . simply
because the court finds the plaintiff's allegations
unlikely.” Id. at 33. However, the district
court is entrusted with the discretion to dismiss the case
for factual frivolousness “when the facts alleged rise
to the level of the irrational or the wholly
incredible.” Id. “[A] court may dismiss
a claim as factually frivolous only when the claim alleges
facts that are ‘clearly baseless', a category
encompassing allegations that are ‘fanciful, '
‘fantastic, ' and ‘delusional.' ”
Id. at 32-33 (citations omitted) (quoting
Neitzke v. Williams, 490 U.S. 319, 325, 328 (1989)).
amended complaint, Plaintiff reasserts a § 1983
conspiracy claim pursuant to Tower, 467 U.S. 914,
with additional factual allegations and adds claims pursuant
to 42 U.S.C. § 1985(3), and, under supplemental
jurisdiction, he alleges claims for legal malpractice,
perjury, and violation of S.C. Code Ann. § 15-3-530(5).
(ECF No. 24 at 1, 7). Plaintiff alleges that Posey's
alleged false testimony at the PCR hearing constitutes an act
in furtherance of a conspiracy with the South Carolina
Attorney General's office to deprive Plaintiff of his
constitutional rights. (ECF No. 24 at 2, 4).
as Plaintiff asserts that Posey is liable for his testimony
at the PCR hearing, dismissal is warranted based on witness
immunity. See Mathis v. Goldberg, 538 F. App'x
310, 211 (4th Cir. 2013) (“[W]itnesses are absolutely
immune from damages for their testimony given in legal
proceedings.” (citing Briscoe, 460 U.S. at
335-36 (1983))); see also Green v. George, C.A. No.
4:08-3501-TLW, 2009 WL 237521, at *2 (D.S.C. Jan. 29, 2009)
(citing Hunt v. Bennett, 17 F.3d 1263, 1267-68 (10th
Cir. 1994) (holding prosecutor and police officer witness
absolutely immune from claim of conspiracy to present false
testimony)). In Briscoe, the Supreme Court held that
the immunity of a witness sued under § 1983 is even
broader than traditional witness immunity: “In such a
case, a trial witness has absolute immunity with respect to
any claim based on the witness' testimony. When
a witness is sued because of his testimony . . ., ‘the
claims of the individual must yield to the dictates of public
policy.'” Rehberg v. Paulk, 566 U.S. 356
(2012) (quoting Briscoe, 460 U.S. at 332-33). The
magistrate judge addressed Posey's immunity as a witness
in his Report in regard to Plaintiff's original
complaint, and the court agrees with the magistrate
judge's analysis and finds it applicable to his amended
complaint. Plaintiff's amended complaint still alleges
damages based upon Posey's testimony as a witness.
Accordingly, Plaintiff has not alleged anything in his
amended complaint that would cause the court to alter its
analysis. Thus, Plaintiff's claim is subject to dismissal
on the basis of witness immunity.
substantively, Plaintiff's argument regarding the
existence and perpetuation of a conspiracy is conclusory and
the amended complaint contains insufficient factual support
for this cause of action. Furthermore, the attachments to
Plaintiff's amended complaint also fail to support the
existence of the alleged video evidence, the falsity of
Posey's testimony, or the existence of a conspiracy to
hide video or audio evidence. For example, Plaintiff's
allegation that Posey testified falsely about video evidence
relates to a May 20, 2011 arrest (ECF Nos. 1 and 24-1 at 7),
however, any evidence supporting the existence of video or
audio evidence in Plaintiff's attachments relates to
separate incidents from different dates (ECF No. 24-1 at 27,
28, and 31). Further, the attached discovery response letter
from the solicitor in the original state court litigation
fails to support his claim. (ECF Nos. 24 at 6 and 24-1 at
29-30). Thus, Plaintiff fails to assert a cognizable claim of
conspiracy pursuant to § 1983, see Bishop, 852
F.2d 565, at *1 (unpublished table opinion) (“naked
assertion of a conspiracy . . . without supporting operative
facts establishing an agreement between the defense attorney
and the prosecutor or some other state actor, and a common
plan to put the agreement into effect, is insufficient to
implicate § 1983.” (quoting Phillips, 746
F.2d at 785 (internal quotation marks omitted)), or §
1985(3), see Simmons v. Poe, 47 F.3d 1370, 1377 (4th
Cir. 1995) (conclusory allegations of a conspiracy are
insufficient to support a § 1985(3) claim).
liberally construing Plaintiff's amended complaint, he
may be alleging a claim of legal malpractice against Posey.
However, the law is well settled that negligence is not
actionable under 42 U.S.C. § 1983. See Daniels v.
Williams, 474 U.S. 327, 335-36 n. 3 (1986); Davidson
v. Cannon, 474 U.S. 344, 347-48 (1986); Pink v. Lester,
52 F.3d 73 (4th Cir. 1995) (noting that Daniels bars
an action under § 1983 for negligent conduct). While
Plaintiff's legal malpractice claim would be actionable
in state court, the federal claims in this case are
recommended for summary dismissal. Therefore, the court
declines to exercise supplemental jurisdiction over the state
law causes of action raised in the complaint. See 28
U.S.C. § 1367(c)(3); see also United Mine Workers v.
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