United States District Court, D. South Carolina
ORDER AND NOTICE
V. Hodges United States Magistrate Judge.
Greene (“Plaintiff”), proceeding pro se and in
forma pauperis, filed this complaint against attorneys Ken
Young, Patrick Wright, Casey Dale Cornwell, Jack Howle,
Darrell Gourley, and Charles Brooks (“Attorney
Defendants”), and former Sumter County Solicitors Harry
O'Connor, Kelly Jackson, and Susan Mayes
(“Solicitor Defendants”) (collectively
“Defendants”), alleging violations of his civil
and constitutional rights. Pursuant to the provisions of 28
U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(e)
(D.S.C.), the undersigned is authorized to review such
complaints for relief and submit findings and recommendations
to the district judge.
is a state prisoner serving a life sentence for murder. [ECF
No. 1 at 3]. He alleges the attorneys involved in his state
criminal action and appeals manipulated the docket, tried him
three times for the same murder, and provided ineffective
assistance of counsel. Id. at 2-4. He seeks
immediate release from prison. Id. at 5.
Standard of Review
filed his complaint pursuant to 28 U.S.C. § 1915, which
permits an indigent litigant to commence an action in federal
court without prepaying the administrative costs of
proceeding with the lawsuit. To protect against possible
abuses of this privilege, the statute allows a district court
to dismiss a case upon a finding that the action fails to
state a claim on which relief may be granted or is frivolous
or malicious. 28 U.S.C. § 1915(e)(2)(B)(i), (ii). A
finding of frivolity can be made where the complaint lacks an
arguable basis either in law or in fact. Denton v.
Hernandez, 504 U.S. 25, 31 (1992). A claim based on a
meritless legal theory may be dismissed sua sponte under 28
U.S.C. § 1915(e)(2)(B). See Neitzke v.
Williams, 490 U.S. 319, 327 (1989).
complaints are held to a less stringent standard than those
drafted by attorneys. Gordon v. Leeke, 574 F.2d
1147, 1151 (4th Cir. 1978). A federal court is charged with
liberally construing a complaint filed by a pro se litigant
to allow the development of a potentially meritorious case.
Erickson v. Pardus, 551 U.S. 89, 94 (2007). In
evaluating a pro se complaint, the plaintiff's
allegations are assumed to be true. Fine v. City of
N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The mandated
liberal construction afforded to pro se pleadings means that
if the court can reasonably read the pleadings to state a
valid claim on which the plaintiff could prevail, it should
do so. Nevertheless, the requirement of liberal construction
does not mean that the court can ignore a clear failure in
the pleading to allege facts that set forth a claim currently
cognizable in a federal district court. Weller v.
Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir.
complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). Although the court must
liberally construe a pro se complaint, the United States
Supreme Court has made it clear a plaintiff must do more than
make conclusory statements to state a claim. See Ashcroft
v. Iqbal, 556 U.S. 662, 677‒78 (2009); Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Rather, the complaint must contain sufficient factual matter,
accepted as true, to state a claim that is plausible on its
face, and the reviewing court need only accept as true the
complaint's factual allegations, not its legal
conclusions. Iqbal, 556 U.S. at 678‒79.
extent Plaintiff attempts to allege constitutional violations
by state actors, those claims fall under 42 U.S.C. §
1983. To state a plausible claim for relief under 42 U.S.C.
§ 1983, an aggrieved party must sufficiently allege he
was injured by “the deprivation of any [of his or her]
rights, privileges, or immunities secured by the [United
States] Constitution and laws” by a
“person” acting “under color of state
law.” See 42 U.S.C. § 1983; see
generally 5 Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 1230 (3d ed.
Attorney Defendants Not State Actors
alleges Attorney Defendants failed to render effective legal
representation in his criminal, appellate, and PCR
proceedings. An attorney, whether retained or appointed, does
not act under color of state law when performing traditional
functions as counsel. See Polk County v. Dodson, 454
U.S. 312, 317-24 nn. 8-9, 12-14 (1981) (finding public
defender does not act under color of state law); Hall v.
Quillen, 631 F.2d 1154, 1155-56 nn. 2-3 (4th Cir. 1980)
(finding court-appointed attorney does not act under color of
state law); Deas v. Potts, 547 F.2d 800 (4th Cir.
1976) (finding private attorney does not act under color of
state law). As the ...