United States District Court, D. South Carolina, Columbia Division
REPORT AND RECOMMENDATION
Jacquelyn D. Austin United States Magistrate Judge
Richard Walker, Jr., (“Plaintiff”), proceeding
pro se and in forma pauperis, brought this civil action
pursuant to 42 U.S.C. § 1983. Plaintiff is an inmate in
the custody of the South Carolina Department of Corrections
and is currently incarcerated at the Lieber Correctional
Institution. Pursuant to the provisions of 28 U.S.C. §
636(b) and Local Civil Rule 73.02(B)(2)(d), D.S.C., the
undersigned Magistrate Judge is authorized to review such
complaints for relief and submit findings and recommendations
to the District Court. Having reviewed the Complaint in
accordance with applicable law, the undersigned finds that
this action is subject to summary dismissal.
filed this civil rights action alleging that Defendants
violated his rights under the First, Fourth, Fifth, Sixth,
and Fourteenth Amendments to the United States Constitution.
[Doc. 1 at 6.] Plaintiff's verbose Complaint is difficult
to decipher. However, the crux of this action appears to be
Plaintiff's contention that Defendants Dudek and
Alexander have litigated his criminal appeal in the state
court, that he has not consented to their representation in
his state court appeal, and that their purported
representation on his behalf violates his rights under the
Constitution. [Id. at 12.] Plaintiff makes a variety
of confusing allegations against Defendants, claiming that
they are all “associated with [a] network conspiring to
unlawfully convict and imprison [him]” and otherwise
harm him. [Id. at 13.] Plaintiff contends that he
has endured “governmental abuse” which undercuts
the integrity of his criminal appeal in the state court.
[Id. at 7.]
contends that, prior to and upon his conviction in the state
court, he indicated that he wished to remain pro se in his
appeal, and he only wished to receive the assistance of
counsel to help him with “Print-Out(s) of Information
(from web), Type Handwritten Brief(s) and motion/s relevant
within [his] appeal.” [Id. at 12.] Petitioner
contends, however, that Defendants Dudek and Alexander are
appellate attorneys who purport to represent him, without his
consent, on matters related to his criminal conviction and
appeal in the South Carolina Court of Appeals. [Id.
at 9.] Plaintiff contends that these two attorneys have
violated his civil rights because he never retained them to
represent him and they have violated their ethical duties in
their purported representation of Plaintiff. [Id.]
Plaintiff contends that he has the right to not accept the
appointment of these attorneys to represent him in his appeal
and that Defendant Huff, who is a judge on the South Carolina
Court of Appeals, violated Plaintiff's rights by refusing
to permit Plaintiff to proceed pro se. [Id. at 10.]
Plaintiff appears to contend that each of the Defendants
participated together in the unlawful litigation of his
appeal and the unlawful representation of Defendants Dudek
and Alexander, thereby violating Plaintiff's civil
rights. [Id. at 11.] Plaintiff makes other similar
allegations against the named Defendants.
relief, Plaintiff requests that the Court enter a preliminary
and permanent injunction, ordering “that Appeal
(Appellate No. 2017-000550) [briefs] filed and litigated by
Attorneys Robert M. Dudek and David R. Alexander be
strike[n], removed, and . . . refused [by] the S.C. Court
[of] Appeals.” [Id. at 21.] Plaintiff also
seeks compensatory damages and punitive damages.
[Id. at 22.] Plaintiff also asks for an order from
this Court ordering Defendants Dudek and Alexander to
terminate their representation of Plaintiff, ordering the
South Carolina Court of Appeals to restart the appeal in that
court without the assigned attorneys on the case, and
ordering Defendants to relinquish all of Plaintiff's
files in their possession. [Id.]
is a prisoner under the definition in 28 U.S.C. §
1915A(c), and “seeks redress from a governmental entity
or officer or employee of a governmental entity.” 28
U.S.C. § 1915A(a). Thus, this Court is charged with
screening Plaintiff's lawsuit to identify cognizable
claims or to dismiss the Amended Complaint if (1) it is
frivolous, malicious, or fails to state a claim upon which
relief may be granted, or (2) seeks monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
Plaintiff is a pro se litigant, his 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, 94 (2007) (per curiam).
However, even under this less stringent standard,
Plaintiff's Complaint is subject to summary dismissal.
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 Plaintiff could
prevail, it should do so, but a district court may not
rewrite a petition to include claims that were never
presented, Barnett v. Hargett, 174 F.3d 1128, 1133
(10th Cir. 1999), or construct Plaintiff's legal
arguments for him, Small v. Endicott, 998 F.2d 411,
417-18 (7th Cir. 1993), or “conjure up questions never
squarely presented” to the court, Beaudett v. City
of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). 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).
filed this action 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).
the Court must liberally construe the pro se Complaint and
Plaintiff is not required to plead facts sufficient to prove
his case as an evidentiary matter in his pleadings, the
Complaint “must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see
also Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir.
2009) (explaining that a plaintiff may proceed into the
litigation process only when his complaint is justified by
both law and fact); cf. Skinner v. Switzer, 562 U.S.
521, 530 (2011) (holding that plaintiff need not pin his
claim for relief to precise legal theory). “A claim has
‘facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.'” Owens v. Baltimore City State's
Attorneys Office, 767 F.3d 379, 388 (4th Cir. 2014).
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). As noted, although the
court must liberally construe the pro se complaint, a
plaintiff must do more than make conclusory statements to
state a claim for relief. See Iqbal, 556 U.S. at
677; Twombly, 550 U.S. at 555. 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; see also Adams v.
Rice, 40 F.3d 72, 74-75 (4th Cir. 1994) (explaining
that, although the court must liberally construe the pro se
complaint, a plaintiff must do more than make mere conclusory
statements to state a claim); White v. White, 886
F.2d 721, 723-74 (4th Cir.1989) (dismissing complaint
dismissed because it “failed to contain any factual
allegations tending to support his bare assertion”).
While Plaintiff is not required to plead facts sufficient to
prove his case as an evidentiary matter in the complaint, he
must allege facts that support a claim for relief. Bass
v. DuPont, 324 F.3d 761, 765 (4th Cir. 2003).
Plaintiff's Complaint is subject to summary dismissal
because each of the Defendants are entitled to dismissal and
because he has failed to state a claim ...