United States District Court, D. South Carolina, Charleston Division
BRYAN HARWELL UNITED STATES DISTRICT JUDGE
matter is before the Court for review of Plaintiff's
objections to the Report and Recommendation (“R &
R”) of United States Magistrate Judge Jacquelyn D.
Austin, who recommends summarily dismissing this action and
denying Plaintiff's motion for an injunction as
moot. See ECF Nos. 18 & 20.
Magistrate Judge makes only a recommendation to the Court.
The Magistrate Judge's recommendation has no presumptive
weight, and the responsibility to make a final determination
remains with the Court. Mathews v. Weber, 423 U.S.
261, 270-71 (1976). The Court must conduct a de novo review
of those portions of the R & R to which specific
objections are made, and it 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); Fed.R.Civ.P. 72(b).
Court must engage in a de novo review of every portion of the
Magistrate Judge's report to which objections have been
filed. Id. However, the Court need not conduct a de
novo review when a party makes only “general and
conclusory objections that do not direct the [C]ourt to a
specific error in the [M]agistrate [Judge]'s proposed
findings and recommendations.” Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence
of specific objections to the R & R, the Court reviews
only for clear error, Diamond v. Colonial Life & Acc.
Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and the
Court need not give any explanation for adopting the
Magistrate Judge's recommendation. Camby v.
Davis, 718 F.2d 198, 199-200 (4th Cir. 1983).
a state prisoner proceeding pro se and in forma pauperis, has
filed this action pursuant to 42 U.S.C. § 1983 against
the State of South Carolina and Leah B. Moody-an attorney
retained to represent him in his state post-conviction relief
(“PCR”) action. See ECF No. 1
(complaint). The Magistrate Judge recommends summarily
dismissing this action because (1) the State of South
Carolina is immune from suit in federal court pursuant to the
Eleventh Amendment and (2) Defendant Moody is not a state
actor for purposes of § 1983. R & R at pp. 6-8.
does not specifically object to the Magistrate Judge's
recommendation regarding the State of South Carolina. See
Diamond & Camby, supra (stating
that absent a specific objection, the Court need only review
the R & R for clear error and need not give reasons for
adopting it). Regardless, the Court agrees with the
Magistrate Judge that the Eleventh Amendment bars suit
against South Carolina. See Fla. Dep't of State v.
Treasure Salvors, Inc., 458 U.S. 670, 684 (1982)
(“A suit generally may not be maintained directly
against the State itself, or against an agency or department
of the State, unless the State has waived its sovereign
immunity.”); Allen v. Cooper, 895 F.3d 337,
347 (4th Cir. 2018) (“Eleventh Amendment immunity
protects the States, their agencies, and officials from suit
in federal court.”).
does specifically object to the Magistrate Judge's
recommendation regarding Defendant Moody. See ECF
No. 20 at pp. 1-4. As fully explained in the R & R,
Plaintiff's allegations concern his dissatisfaction with
Defendant Moody's representation in his state PCR action,
including her alleged refusal to return the retainer fee paid
by Plaintiff's mother. However, purely private conduct such as
that allegedly engaged in by Defendant Moody, no matter how
wrongful, injurious, fraudulent, or discriminatory, is not
actionable under 42 U.S.C. § 1983. See Lugar v.
Edmondson Oil Co., 457 U.S. 922, 936 (1983). Defendant
Moody is not a state actor, and her actions in representing
Plaintiff in his PCR case do not constitute state action or
action under color of state law because “[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.” Polk
County v. Dodson, 454 U.S. 312, 318 (1981). Moreover,
“[a] private attorney who is retained to represent a
criminal defendant is not acting under color of state law,
and therefore is not amenable to suit under s 1983.”
Deas v. Potts, 547 F.2d 800, 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.”). Accordingly, Defendant
Moody is not amenable to suit under § 1983.
foregoing reasons, the Court OVERRULES
Plaintiff's objections, ADOPTS the R
& R [ECF No. 18], and DISMISSES this
action without prejudice and without issuance and service
of process. Plaintiff's motion for an
injunction [ECF No. 2] is MOOT.
IS SO ORDERED.