United States District Court, D. South Carolina, Anderson/Greenwood Division
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'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.
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).
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).
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 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.
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.
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 ...