United States District Court, D. South Carolina
REPORT OF MAGISTRATE JUDGE
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)(1)(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.
plaintiff filed his complaint here on December 6, 2018 (doc.
1). By order filed January 8, 2019, the plaintiff was
informed that his complaint was subject to summary dismissal
because it failed to state a claim upon which relief may be
granted, and that he could attempt to cure the defects
identified in his complaint by filing an amended complaint
within fourteen days (doc. 11). The plaintiff was informed
that if he failed to file an amended complaint or otherwise
cure the deficiencies outlined in the order, the undersigned
would recommend that his case be dismissed (doc. 11 at 4). On
January 24, 2019, the plaintiff filed an amended complaint
(doc. 13). However, because the amended complaint likewise
fails to state a claim upon which relief may be granted, the
undersigned recommends dismissal.
plaintiff is a pretrial detainee at the Greenwood County
Detention Center (“GCDC”) in Greenwood, South
Carolina. The defendant Elizabeth Ables is his
court-appointed public defender for his pending criminal
charges. In his amended complaint, the plaintiff alleges that
Ables improperly provided his case paperwork to, and
discussed his case with, another GCDC inmate. A third inmate,
apparently related to the purported victims in the
plaintiff's case, thereafter learned of the
plaintiff's alleged involvement and threatened him, and
the plaintiff blames Ables as the source of the information
and the resulting threats. (doc. 13 at 5-6). This caused the
plaintiff to suffer emotional distress, anxiety, humiliation,
and fear for his safety, for which he now seeks monetary
damages here (doc. 13 at 7).
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).
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, 566 U.S. 356, 361 (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).
plaintiff's complaint, even as amended, is subject to
dismissal because Ables was not acting under color of state
law. It is well-settled that “[a]nyone whose conduct is
‘fairly attributable to the state' can be sued as a
state actor under § 1983.” Filarsky, 566
U.S. 377, 383 (2012). To determine whether state action is
present, no single factor is determinative and the
“totality of the circumstances” must be
evaluated. See Goldstein v. Chestnut Ridge Volunteer Fire
Co., 218 F.3d 337, 341-43 (4th Cir. 2000). However,
purely private conduct, no matter how wrongful, is not
actionable under 42 U.S.C. § 1983 and the United States
Constitution. See Lugar v. Edmondson Oil Co., 457
U.S. 922, 936 (1982); Mentavlos v. Anderson, 249
F.3d 301, 310 (4th Cir. 2001).
is well-established that appointed defense counsel are not
state actors for purposes of § 1983 claims because the
public defender acts not on behalf of the state; rather, the
public defender “is the State's adversary.”
Polk Cty. v. Dodson, 454 U.S. 312, 323 n.13 (1981);
see Mahaffey v. Sumter Cty. Pub. Defender's
Corp., C/A No. 3:06-3557-SB, 2007 WL 3001675, at *4
(D.S.C. Oct. 9, 2007) (“[T]he Sumter County Public
Defender's Corp. did not act under color of state law and
is entitled to summary dismissal.”); see also Hall
v. Quillen, 631 F.2d 1154, 1155-56 (4th Cir. 1980)
(finding no state action under § 1983, even where the
plaintiff's attorney was court-appointed). While
“public defenders are not immune from § 1983
liability when they conspire with state officials to deprive
their client of federal rights” (Figueroa v.
Clark, 810 F.Supp. 613, 616 (E.D. Pa. 1992); see
Tower v. Glover, 467 U.S. 914 (1984)), the
plaintiff's amended complaint is void of any such
allegations. Instead, the plaintiff, relying on
Filarsky, alleges that the defendant is a state
actor solely because she is a public defender. However, as
referenced above, the employment relationship between a
public defender and the state is insufficient to establish
that a public defender acts under color of state law for
purposes of § 1983. Accordingly, the plaintiff's
amended complaint fails to state a claim for relief and is
subject to summary dismissal.
order issued January 8, 2019, the undersigned gave the
plaintiff an opportunity to correct the defects identified in
his complaint and further warned the plaintiff that if he
failed to file an amended complaint or failed to cure the
identified deficiencies, the undersigned would recommend to
the district court that the action be dismissed with
prejudice and without leave for further amendment.
Despite filing an amended complaint, the plaintiff has not
cured the deficiencies identified in the Order dated January
8, 2019 (doc. 11). Therefore, the undersigned recommends that
the district court dismiss this action with
prejudice and without issuance and service of process.
See Workman v. Morrison Healthcare, 724 Fed.Appx.
280, 281 (4th Cir. 2018) (in a case where the district court
had already afforded the plaintiff an opportunity to amend,
the district court was directed on remand to “in its
discretion, either afford [the plaintiff] another opportunity
to file an amended complaint or dismiss the complaint with
prejudice, thereby rendering the dismissal order a final,
appealable order”) (citing Goode v. Cent. Va. Legal
Aid Soc'y, Inc., 807 F.3d 619, 630 (4th Cir. 2015)).
The plaintiff's attention is directed to the
important notice on the next page.