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Dizzley v. State

United States District Court, D. South Carolina

August 29, 2018

Terron Gerhard Dizzley, #359480, Plaintiff,
v.
South Carolina, Leah B. Moody, Defendants.

          REPORT AND RECOMMENDATION

          JACQUELYN D. AUSTIN, UNITED STATES MAGISTRATE JUDGE

         Terron Gerhard Dizzley (“Plaintiff”), proceeding pro se, brings this civil action pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights. Plaintiff is currently incarcerated at the Lieber Correctional Institution, and he files this action in forma pauperis under 28 U.S.C. § 1915. For the reasons below, the Complaint is subject to summary dismissal.

         BACKGROUND

         Plaintiff alleges Defendants have violated his rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. [Doc. 1-4 at 4.] Plaintiff received a letter from Defendant Leah B. Moody (“Moody”) on October 19, 2017, indicating that she had been retained to represent Plaintiff in his state court Post Conviction Relief Action (“PCR”). [Id. at 13.] Plaintiff sent correspondence to Moody regarding the issues he intended to raise in his case and requested that she come and speak with him. [Id.] Plaintiff asked his witnesses to call Moody so she could get an understanding of what he needed to prove as to each issue. [Id.] Nevertheless, Plaintiff did not hear from Moody for several months. [Id.] During Plaintiff's first phone conference with Moody, she disrespectfully told Plaintiff not to tell his witnesses to call her and that she would call them when she was ready. [Id.] Moody pretended to have knowledge of Plaintiff's case, even though she did not, and she spoke to him “abusively as an adversary instead of an advocate.” [Id. at 13-14.] While speaking with Plaintiff, Moody confused Plaintiff's case with another case and, after Plaintiff corrected her as to the names and circumstances surrounding his case, Moody started “ranting and raving stating that she has hundreds of cases.” [Id. at 14.] Moody stated, “don't think your case is the only case I got honey, cause it's not, and don't think I'm going to spend all my time on your case.” [Id.] Plaintiff then told Moody that she should not have taken his case if she was overloaded with other cases. [Id. at 15.]

         Plaintiff then asked Moody to come speak with him in person. [Id.] Moody responded that she would not come see him and that she told Plaintiff's mother that she would conduct phone conferences. [Id.] Plaintiff stated to Moody that she could not represent him under those terms and Moody responded, “If you don't like it you can fire me.” [Id.] Plaintiff asked Moody to return his mother's money paid for the retainer, but Moody responded, “Oh no honey your momma ain't gitin [sic] no money back, I earn that money.” [Id.] Moody then started ranting and raving, stating she was hungry and needed a cup of coffee and that she had to go. [Id.] Plaintiff asked her for clarification on whether she was coming to speak with him and her response was “I'll see now bye I gotta go.” [Id.]

         Plaintiff contends his mother has been swindled out of thousands of dollars trying to help Plaintiff appeal his conviction. [Id. at 16.] Plaintiff and his mother tried to come to some common ground with Moody and insisted that she visit Plaintiff and get his consent. [Id.] However, Moody continued to become more of an adversary. [Id.] Plaintiff only had three phone conferences with Moody, in which she would always pretend as if she had Plaintiff's transcripts, even though she was lying about reviewing his transcripts. [Id.] Plaintiff's PCR hearing was scheduled for May 25, 2018, but Moody waited until the last minute to contact Plaintiff's witnesses and was unable to contact Plaintiff's brother, who was an alibi witness. [Id.] Moody told Plaintiff that she would not permit him to amend his PCR complaint and she acted very unprofessional. [Id.]

         Moody refused to get Plaintiff's consent regarding her representation of him and refused to assist Plaintiff in getting funds for an investigator. [Id. at 17.] Plaintiff's mother attempted to provide funds for an investigator, but Moody spoke disrespectfully to Plaintiff's mother, making her feel “abused.” [Id.] Plaintiff has written letters to Moody asking her to cease from her fraudulent representation and return his mother's money. [Id.] Plaintiff has contacted the Bar Association, the Supreme Court, the Administrative Judge, the PCR Judge, and the Clerk of Court, but they have returned Plaintiff's letters stating that his attorney must file motions. [Id.]

         Plaintiff contends that Moody's intentional, deceitful, and illegal misrepresentation violate his due process rights under the Fifth and Fourteenth Amendments. [Id. at 18.] Moody's conduct makes it impossible for Plaintiff to have a fair PCR hearing. [Id.] Moody took money from Plaintiff's mother and then substituted herself as Plaintiff's PCR attorney without his consent. [Id.] Moody blatantly became an adversary and verbally abused Plaintiff and his mother. [Id.] Plaintiff contends Moody's actions violate his Sixth Amendment Right to effective assistance of counsel.[1] [Id.]

         For his injuries, Plaintiff alleges he has suffered the loss of $6, 500, delays to his state court PCR action, and emotional distress. [Id. at 6.] For his relief, Plaintiff seeks a declaratory judgment that Moody has violated Plaintiff's constitutional rights, an injunction ordering Moody to cease from her fraudulent representation, repayment of his money paid to Defendant Moody and $300, 000 in punitive damages, and that the federal court take over his PCR action to provide a fair hearing.[2] [Id.]

         STANDARD OF REVIEW

         Pursuant to the provisions of 28 U.S.C. §636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(d) DSC, the undersigned is authorized to review the Amended Complaint for relief and submit findings and recommendations to the District Court. Plaintiff filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute. This statute authorizes the District Court to dismiss a case if it is satisfied that the action “fails to state a claim on which relief may be granted, ” is “frivolous or malicious, ” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). Further, Plaintiff is a prisoner under the definition in 28 U.S.C. § 1915A(c), and “seeks redress from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). Thus, even if Plaintiff had prepaid the full filing fee, this Court is charged with screening Plaintiff's lawsuit to identify cognizable claims or to dismiss the Amended Complaint if (1) it is frivolous, malicious, or fails to state a claim upon which relief may be granted, or (2) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A.

         As a pro se litigant, Plaintiff's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). However, even under this less stringent standard, Plaintiff's Complaint is subject to summary dismissal. The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which Plaintiff could prevail, it should do so, but a district court may not rewrite a petition to include claims that were never presented, Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999), or construct Plaintiff's legal arguments for him, Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993), or “conjure up questions never squarely presented” to the court, Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). 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, 391 (4th Cir. 1990).

         DISCUSSION

         Plaintiff filed this action pursuant to 42 U.S.C. § 1983, which “‘is not itself a source of substantive rights,' but merely provides ‘a method for vindicating federal rights elsewhere conferred.'” Albright v. Oliver,510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). A civil action under § 1983 “creates a private right of action to vindicate violations of ‘rights, privileges, or immunities secured by the Constitution and laws' of the United States.” Rehberg v. Paulk,566 U.S. 356, 361 (2012). To state a claim under ยง 1983, a plaintiff must allege two essential elements: (1) that a right secured by the ...


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