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Greene v. Young

United States District Court, D. South Carolina

August 16, 2019

Latorey Greene, Plaintiff,
v.
Ken Young, Patrick Wright, Casey Dale Cornwell, Jack Howle, Darrell Gourley, Harry O'Connor, Susan Mayes, Charles Brooks, and Kelly Jackson, Defendants.

          ORDER AND NOTICE

          Shiva V. Hodges United States Magistrate Judge.

         Latorey 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.

         I. Factual Background

         Plaintiff 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.

         II. Discussion

         A. Standard of Review

         Plaintiff 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).

         Pro se 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. 1990).

         B. Analysis

         A 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.

         To the 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. 2014).

         1. Attorney Defendants Not State Actors

         Plaintiff 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 ...


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