Vance v. Nelson

          REPORT OF MAGISTRATE JUDGE

          Kevin F. McDonald, United States Magistrate Judge

         The 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.

         The plaintiff's complaint was entered on the docket on January 22, 2019 (doc. 1). By Order filed February 6, 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. 12). 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. 12 at 5). On February 22, 2019, the plaintiff filed an amended complaint (doc. 14). However, because the amended complaint likewise fails to state a claim upon which relief may be granted, the undersigned recommends dismissal.

         ALLEGATIONS

         The plaintiff is a pretrial detainee at the Laurens County Detention Center in Laurens, South Carolina (doc. 14 at 2). In his amended complaint, the plaintiff contends that his constitutional rights were violated when his bond reduction was delayed by four months because Jana Nelson (“Nelson”) (the head public defender) delayed sending his file to his new attorney (id. at 4). The plaintiff alleges that Rhonda Currenton (“Currenton”), a paralegal with the public defender's office, informed him that she needed his permission to release the file but still did not transfer the file even when he provided permission (id. at 6).

         The plaintiff contends that the four-month delay in transferring his file violated his right to fair trial and legal representation (id. at 4). The plaintiff also indicates that the actions caused him to suffer high blood pressure and stress-related health issues (id. at 6). For relief, the plaintiff asks that his criminal cases be dismissed, seeks money damages for the time he endured in jail without representation, and seeks money damages for his stress-related issues (id. at 6).

         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, 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).

         DISCUSSION

         The plaintiff's complaint, even as amended, is subject to dismissal because the defendants were 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).

         The plaintiff's claims against Nelson and Currenton are subject to dismissal because they were not acting under color of state law. Liberally construing the plaintiff's amended complaint-which is substantially the same as his original complaint-the plaintiff alleges that Currenton delayed the transfer of his file even after he gave her permission and that Nelson failed to turn over his file during the September term of court because she was too busy (doc. 14 at 5). To the extent the plaintiff sues Nelson as an attorney with the Eighth Circuit Public Defender's Office-for failing to transfer his file to his new attorney, the law 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). The same analysis applies to Currenton, a paralegal with the Eighth Circuit Public Defender's Office. See Taylor v. Brooks, C/A No. 3:15-1138-RMB-MGB, 2015 WL 4257022, at *2 (D.S.C. May 21, 2015), Report and Recommendation adopted by 2015 WL 4274834 (D.S.C. July 14, 2015), aff'd 627 Fed.Appx. 2016 (4th Cir. 2015), cert. denied 137 S.Ct. 183 (Mem) (2016) (citing McCormick v. Barnes, No. 2:14-cv-971-MHT, 2014 WL 5198341, at *2 (M.D. Ala. Oct. 14, 2014) (dismissing claim against private attorney's legal assistant because “neither an attorney nor his assistant act[ed] under color of state law during representation of an accused in criminal proceedings”); Goodyear v. Hornung, No. 07-cv-276-FTM-29SPC, 2007 WL 1362735, at *2 (M.D. Fla. May 7, 2007) (dismissing § 1983 claim because “[p]laintiff's privately retained defense counsel and his paralegal are not state actors”)). Here, the only specific factual allegations made by the plaintiff against the defendants arise out of the Eighth Circuit Public Defender's Office's representation of him during state criminal proceedings (doc. 14 at 4-6). Thus, the instant case is subject to summary dismissal.

         RECOMMENDATION

         By order issued February 6, 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 February 6, 2019 (doc. 12). 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 ...