United States District Court, D. South Carolina, Charleston Division
PATRICK MICHAEL DUFFY UNITED STATES DISTRICT JUDGE.
matter is before the Court on pro se Plaintiff Tracy
Smith's objections to United States Magistrate Judge
Bristow Marchant's Report and Recommendation (“R
& R”) that his suit be dismissed. Plaintiff also
seeks the Court's permission to amend his complaint. For
the reasons set forth herein, the Court overrules
Plaintiff's objections, denies his request to amend his
complaint as futile, and adopts the Magistrate Judge's R
action arises out of Plaintiff's allegations related to
discovery conducted during litigation Plaintiff brought in
state court. According to Plaintiff, Defendants Gainey and
Spears failed to disclose documents during discovery and
concealed conversations about his counseling sessions with
Defendant SAVE, Inc., Gainey, and SAVE's contractor,
Jonathan Kessler. According to Plaintiff, those conversations
were disclosed to his former employer, Showa Denko Carbon,
Inc., without his consent, and he was subsequently terminated
by Showa Denko.
Magistrate Judge makes only a recommendation to this Court.
The R & R has no presumptive weight, and the
responsibility for making a final determination remains with
the Court. Mathews v. Weber, 423 U.S. 261, 270-71
(1976). Parties may make written objections to the R & R
within fourteen days after being served with a copy of it. 28
U.S.C. § 636(b)(1). This Court must conduct a de novo
review of any portion of the R & R to which a specific
objection is made, and it may accept, reject, or modify the
Magistrate Judge's findings and recommendations in whole
or in part. Id. Additionally, the Court may receive
more evidence or recommit the matter to the Magistrate Judge
with instructions. Id. A party's failure to
object is taken as the party's agreement with the
Magistrate Judge's conclusions. See Thomas v.
Arn, 474 U.S. 140 (1985). Absent a timely, specific
objection-or as to those portions of the R & R to which
no specific objection is made-this Court “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
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005) (quoting Fed.R.Civ.P. 72 advisory committee's
majority of Plaintiff's objections to the R & R
relate to his view that he is not attempting to relitigate
matters decided in state court in a federal forum, and that
he has adequately alleged that Defendants were state actors.
Although Plaintiff raises a number of other objections, the
Court concludes that the various portions of the Magistrate
Judge's R & R discussed below render those objections
the Court agrees with the Magistrate Judge that
Plaintiff's claims here are, in general, merely an
attempt to relitigate claims that he brought in various state
court actions over the past several years. Plaintiff clearly
takes issue with the outcome of those actions, and also
disagrees with some of the rulings of the state court judges
in those proceedings. However, as thoroughly explained by the
Magistrate Judge, this Court may not review state court
judgments or the rulings that underlie them. Under the
Rooker-Feldman doctrine, superior state courts, and
ultimately, the United States Supreme Court, have exclusive
jurisdiction to review state-court decisions such that the
lower federal courts are generally barred from reviewing such
decisions. Exxon Mobil Corp. v. Saudi Basic Indus.
Corp., 544 U.S. 280, 284 (2005) (holding that the
Rooker-Feldman doctrine prevents a federal court
from asserting jurisdiction in cases brought by state-court
litigants dissatisfied with state-court judgments and
“inviting district court review and rejection of those
judgments”). As a result, although Plaintiff's
claims are not clearly delineated in his complaint, the Court
plainly lacks jurisdiction over all of his claims seeking
review of the state court's rulings regarding his motion
addition, Plaintiff's claims are barred for other
reasons. The Court also agrees with the Magistrate Judge that
Plaintiff has failed to state a claim upon which relief can
be granted. Plaintiff's primary claims are brought under
18 U.S.C. § 1346, 18 U.S.C. § 1347, 18 U.S.C.
§ 241, and 42 U.S.C. § 1983. While the Court
believes that many of those claims may be barred by res
judicata or collateral estoppel, it need not reach that
conclusion here. Plaintiff cannot state a claim under his
first three causes of action because those statutes do not
provide a private right of action. See Alford v. S. Gen.
Ins., No. 7:12-CV-00273-BR, 2013 WL 1010584, at *2 (E.D.
N.C. Mar. 14, 2013) (stating that 18 U.S.C. § 1346 does
not confer a private cause of action); U.S. ex rel.
Michaels v. Agape Senior Community Inc., No.
0:12-cv-3466-JFA, 2013 WL 6383085, at *3 (D.S.C. Dec. 5,
2013) (quoting the Ninth Circuit's holding that there is
no private cause of action under 18 U.S.C. § 1347);
Bey v. White, No. 2:17-cv-76-RMG-MGB, 2017 WL
934728, at *3 (D.S.C. Feb. 14, 2017) (holding that 18 U.S.C.
§ 241 does not create a private right of action). As for
Plaintiff's § 1983 claim, his claim fails because he
cannot successfully allege that any Defendant is a state
actor. See Lugar v. Edmondson Oil Co., Inc., 457
U.S. 922, 937 (1982) (stating that “the party charged
with the [violative conduct] must be a person who may fairly
be said to be a state actor”). As noted by the
Magistrate Judge, Plaintiff's assertion that Defendant
Spears is a state actor by virtue of her South Carolina
license to practice law is incorrect. See Polk Cty. v.
Dodson, 454 U.S. 312, 317-24, 319 n.9 (1981) (concluding
that not even a public defender is a state actor and noting
that lawyers “are not officials of government by virtue
of being lawyers”). Although Plaintiff might have other
causes of action, his current causes of action fail to state
a claim for the reasons set forth above. In addition, his
proposed amendments to his complaint would not remedy the
defects specified above. As a result, the Court concludes
that Plaintiff's case should be summarily dismissed
foregoing reasons, the Court ADOPTS the R
& R, SUMMARILY DISMISSES Plaintiff's
case without prejudice, and DENIES
Plaintiff's motion ...