United States District Court, D. South Carolina, Greenville Division
ORDER REGARDING AMENDMENT OF COMPLAINT
J. GOSSETT UNITED STATES MAGISTRATE JUDGE.
plaintiff, Tito Knox, proceeding pro se, brings this
civil rights action. The Complaint has been filed pursuant to
28 U.S.C. § 1915. This matter is before the court
pursuant to 28 U.S.C. § 636(b) and Local Civil Rule
73.02(B)(2) (D.S.C.). Having reviewed the Complaint in
accordance with applicable law, the court finds this action
is subject to summary dismissal if Plaintiff does not amend
Factual and Procedural Background
indicates he completed a ten-year term of imprisonment for a
firearms offense. He seeks to raise a claim that his civil
rights were violated because Defendant, his public defender,
did not request a hearing to determine whether he should be
found not guilty by reason of insanity pursuant to 18 U.SC.
§ 4243. He claims this violated his right to due process
because he would have served only forty days in prison rather
than ten years. He seeks damages for his injuries.
Standard of Review
established local procedure in this judicial district, a
careful review has been made of the pro se
Complaint. The Complaint has been filed pursuant to 28 U.S.C.
§ 1915, which permits an indigent litigant to commence
an action in federal court without prepaying the
administrative costs of proceeding with the lawsuit. This
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.
order to state a claim upon which relief can be granted, the
plaintiff must do more than make mere conclusory statements.
See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009);
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). Rather, the complaint must contain sufficient factual
matter, accepted as true, to state a claim that is plausible
on its face. Iqbal, 556 U.S. at 678;
Twombly, 550 U.S. at 570. The reviewing court need
only accept as true the complaint's factual allegations,
not its legal conclusions. Iqbal, 556 U.S. at 678;
Twombly, 550 U.S. at 555.
court is required to liberally construe pro se
complaints, which are held to a less stringent standard than
those drafted by attorneys. Erickson v. Pardus, 551
U.S. 89, 94 (2007); King v. Rubenstein, 825 F.3d
206, 214 (4th Cir. 2016). Nonetheless, 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 cognizable in a federal district court. See
Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th
Cir. 1990); see also Ashcroft v. Iqbal, 556 U.S.
662, 684 (2009) (outlining pleading requirements under Rule 8
of the Federal Rules of Civil Procedure for “all civil
Complaint, Plaintiff does not specify the cause of action or
legal theory upon which he bases his claim for relief, other
than to briefly reference his right to due process. But in
accordance with the court's duty to liberally construe
pro se complaints, the court construes its as
attempting to assert a cause of action pursuant to 42 U.S.C.
§ 1983 or Bivens v. Six Unkown Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971). A legal action
under 42 U.S.C. § 1983 allows “a party who has
been deprived of a federal right under the color of state law
to seek relief.” City of Monterey v. Del Monte
Dunes at Monterey, Ltd., 526 U.S. 687, 707 (1999). To
state a claim under § 1983, a plaintiff must allege: (1)
that a right secured by the Constitution or laws of the
United States was violated, and (2) that the alleged
violation was committed by a person acting under the color of
state law. West v. Atkins, 487 U.S. 42, 48 (1988).
Similarly, in Bivens, the United States Supreme
Court established a remedy for plaintiffs alleging
constitutional violations by federal officials to obtain
monetary damages in suits against federal officials in their
Plaintiff fails to provide sufficient facts to plausibly show
the court has jurisdiction over Plaintiff's claims or
that Plaintiff is entitled to relief. See Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (stating the complaint
must contain sufficient factual matter, accepted as true, to
state a claim that is plausible on its face); Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Plaintiff's assertion that his due process rights were
violated is conclusory and unsupported by facts.
state and federal public defenders generally cannot be sued
pursuant to 42 U.S.C. § 1983 or Bivens. See
Hall v. Quillen, 631 F.2d 1154, 1155 (4th Cir. 1980)
(finding no state action under § 1983 even where the
plaintiff's attorney was a court-appointed public
defender); See Campbell v. North Carolina,
No.1:12-CV-719, 2013 WL 2153110, at *2 n.1 (M.D. N.C. May 16,
2013) (collecting cases finding that federal public defenders
are not amenable to suit pursuant to Bivens).
Plaintiff's allegation against Defendant appears to
concern Defendant's judgment as Plaintiff's advocate
in a criminal proceeding, and therefore, does not implicate
any state action. Nor has Plaintiff plead any facts that
would indicate Defendant was acting in a role that has been
found to implicate state action in other cases. See e.g.
Dodson, 454 U.S. 312, 324-25 (1981) (administrative and
investigative functions); Tower v. Glover, 467 U.S.
914, 920 (1984) (conspiracy with state actors).
Plaintiff's claim would appeared to be barred by 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, unless the
prisoner can demonstrate that the conviction or sentence has
been previously invalidated. Id. at 487. However,
Plaintiff has provided no factual allegations to show that he