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Gunn v. Cheeks

United States District Court, D. South Carolina, Spartanburg Division

January 22, 2019

Herracial Gunn, #377702, Plaintiff,
v.
James Cheeks, Robert Hall, Clay Allen, Defendants.

          REPORT OF MAGISTRATE JUDGE

          KEVIN F. MCDONALD UNITED STATES MAGISTRATE JUDGE

         Plaintiff, proceeding pro se and in forma pauperis, brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights. Pursuant to the provisions of 28 U.S.C. § 636(b), and Local Civil Rule 73.02(B)(2)(d), D.S.C., this magistrate judge is authorized to review all pretrial matters in cases filed under 42 U.S.C. § 1983.

         The plaintiff filed this case against the defendants on December 13, 2018 (doc. 1). By order filed December 21st, the plaintiff was informed that his complaint was subject to summary dismissal because it fails to state a claim upon which relief may be granted (doc. 7). In the same order, the plaintiff was informed that he could attempt to cure the defects in his complaint by filing an amended complaint within fourteen days (doc. 7 at 5). The plaintiff was informed that if he failed to file an amended complaint or cure the deficiencies outlined in the order, the undersigned would recommend that his claims be dismissed (doc. 7 at 5). On January 11, 2019, an amended complaint was received from the plaintiff (doc. 12).

         BACKGROUND AND ALLEGATIONS

         The plaintiff is currently incarcerated in the South Carolina Department of Corrections at Wateree Correctional Institution in Rembert, South Carolina (docs.1 at 2; 12 at 2). In his amended complaint, the plaintiff refers back to the factual allegations contained in his original complaint (doc. 12). The plaintiff alleges claims for deliberate indifference to serious legal needs, ineffective assistance of counsel, and conspiracy against the defendants (doc. 1 at 4). The plaintiff alleges that attorney Robert Hall was appointed to represent him and met with him on two occasions (doc. 1 at 15). After the plaintiff decided to plead guilty, another attorney, James Cheeks, met with the plaintiff at the jail, as he would be the attorney handling the entry of the plaintiff's guilty plea (doc. 1 at 15-17). The plaintiff alleges that Clay Allen acted as the supervisor to Hall and Cheeks at the Spartanburg County Public Defender's Office (doc. 1 at 17). The plaintiff alleges several matters with respect to the defendants' representation of him during 2018, including that Hall improperly waived the plaintiff's right to a preliminary hearing, that Cheeks cursed and yelled at him on at least two occasions, that the defendants failed to move to withdraw his guilty plea upon his request, and that Allen failed to properly address his concerns about Hall and Cheeks (docs. 1; 12).

         STANDARD OF REVIEW

         The 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). As a pro se litigant, the 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 (2007) (per curiam). 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).

         This complaint is filed 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, 32 S.Ct. 1497, 1501 (2012). To state a claim under § 1983, a plaintiff must allege two essential elements: (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).

         DISCUSSION

         As an initial matter, although warned that his amended complaint should be complete in itself (doc. 7 at 5), the plaintiff's amended complaint refers back to the original complaint with the exception of the delineation of the parties (see doc. 12).

         Conspiracy Claim as to all Defendants

         To the extent the plaintiff attempts to allege a claim of conspiracy under 42 U.S.C. § 1985, the plaintiff's amended complaint is subject to dismissal. Section 1985(3) provides a civil remedy for conspiracies to interfere with constitutionally or federally protected rights when motivated by invidiously discriminatory animus. See Griffin v. Breckenridge, 403 U.S. 88, 102-03 (1971). Under § 1985(3), a plaintiff must show: (1) a conspiracy; (2) an act in furtherance of the conspiracy; (3) an intent to deprive any person of the equal protection of, or equal privileges and immunities under, the law; and (4) a resulting injury to a legal right or privilege. See Great Am. Fed. Sav. & Loan Assoc. v. Novotny, 442 U.S. 366, 372 (1979) (quoting Griffin, 403 U.S. at 102-03). To state a claim under Section 1985(3), therefore, plaintiff much allege the existence of a conspiracy in fact.

         Here, the plaintiff has set forth only conclusory allegations. Conjecture and speculation are insufficient to demonstrate a conspiratorial agreement, and the plaintiff's complaint contains no facts to show that the defendants had a mutual understanding or acted “jointly in concert” with any other individual to deprive the plaintiff of a constitutional right. See Hinkle v. City of Clarksburg, W.Va., 81 F.3d 416, 421 (4th Cir. 1996). The plaintiff has also failed to establish any discriminatory motive on the part of the defendants. As such, to the extent the plaintiff is attempting to allege a cause of action for conspiracy, his claim fails.

         Defendants James ...


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