United States District Court, D. South Carolina, Columbia Division
OPINION & ORDER
M. HERLONG, JR. SENIOR UNITED STATES DISTRICT JUDGE
matter is before the court on Latorey Greene's
(“Greene”) pro se “motion why complaint
shouldn't be dismissed, ” which the court construes
as a motion to alter or amend the judgment pursuant to Rule
59(e) of the Federal Rules of Civil Procedure. (Mot. Alter or
Amend, ECF No. 23.) In addition, Greene filed a motion to
appoint counsel, for discovery, and for an extension of time.
(Mot. Ext., ECF No. 24.) For the reasons set forth below, the
court denies Greene's motions.
August 5, 2019, Greene filed the instant action 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 other Constitutional rights pursuant to 42 U.S.C. §
1983. (Compl., generally, ECF No. 1.) Greene is a state
prisoner serving a life sentence for murder. In his
complaint, he alleges claims of prosecutorial misconduct and
ineffective assistance of counsel. (Id., generally,
ECF No. 1.)
magistrate judge issued a Report and Recommendation
recommending dismissing this action because Greene has failed
to prosecute his case, the Attorney Defendants are not state
actors under § 1983, the prosecutors in his case are
entitled to prosecutorial immunity, and the requested remedy
of release from prison is not available in a § 1983
action. (R&R, generally, ECF No. 14.) After receiving no
objections, the court adopted the Report and Recommendation
on October 7, 2019. (Order, ECF No. 20.) On November 6, 2019,
Greene filed the instant motion requesting that his complaint
not be dismissed and he be released from prison. (Mot. Alter
or Amend, ECF No. 23.) The court construes the motion as a
motion to alter or amend pursuant to Rule 59(e). Further,
Greene filed a motion requesting appointment of counsel,
discovery, and additional time to prepare his case. (Mot.
Extension, ECF No. 24.)
motion to alter or amend the judgment under Rule 59(e) may be
made on three grounds: “(1) to accommodate an
intervening change in controlling law; (2) to account for new
evidence not available at trial; or (3) to correct a clear
error of law or prevent manifest injustice.”
Hutchinson v. Staton, 994 F.2d 1076, 1081 (4th Cir.
1993) (citations omitted). “Rule 59(e) motions may not
be used, however, to raise arguments which could have been
raised prior to the issuance of the judgment . . . .”
Pac. Ins. Co. v. Am. Nat'l Fire Ins. Co., 148
F.3d 396, 403 (4th Cir. 1998) (citations omitted). “In
general[, ] reconsideration of a judgment after its entry is
an extraordinary remedy which should be used
sparingly.” Id. (internal citation and
quotation marks omitted).
review, Greene's motion fails to identify any intervening
change in controlling law, new evidence, or clear error of
law. Further, Greene is attempting to generally reallege his
arguments raised in his complaint. In addition, Greene's
requests for additional time to investigate and conduct
discovery on his ineffective assistance of counsel claims and
prosecutorial misconduct are denied.
are not state actors under § 1983, and thus,
Greene's claim fails to state a claim for relief.
Polk Cty. v. Dodson, 454 U.S. 312, 317-24 & n.
8-9 (1981) (finding that a public defender did not act under
color of state law); Hall v. Quillen, 631 F.2d 1154,
1155-56 & n. 2-3 (4th Cir. 1980) (finding that
court-appointed attorney does not act under color of state
law); Deas v. Potts, 547 F.2d 800, 800 (4th Cir.
1976) (finding that private attorney does not act under color
of state law). Further, prosecutors are entitled to absolute
immunity. Dababnah v. Keller-Burnside, 208 F.3d 467,
470 (4th Cir. 2000) (“A prosecutor enjoys absolute
immunity for prosecutorial functions intimately associated
with the judicial phase of the criminal process.”)
(internal quotation marks and citation omitted).
this action, Greene is attempting to challenge his conviction
and sentence. However, Greene has previously filed a petition
for habeas corpus pursuant to 28 U.S.C. § 2254, and the
court granted the respondent's motion for summary
judgment. See Greene v. Warden, C/A No.
3:09-258-HMH-JRM (D.S.C. Jan. 4, 2010).
prisoner seeking to file a successive application in the
district court must first obtain authorization from the
appropriate court of appeals.” United States v.
Winestock, 340 F.3d 200, 205 (4th Cir. 2003) (citing 28
U.S.C. § 2244(b)(3)). “The court of appeals must
examine the application to determine whether it contains any
claim that satisfies § 2244(b)(2) . . . .”
Id. In the absence of pre-filing authorization from
the court of appeals, the district court is without
jurisdiction to consider a second or successive application.
Id. (citation omitted). It does not appear that
Greene has obtained authorization from the appropriate United
States Court of Appeals to proceed with a second or
successive § 2254 petition. Based on the foregoing,
Greene's motions are denied.
that Greene's motion to alter or amend the judgment,
docket number 23, is denied. It is further
that Greene's motion to appoint counsel, motion for
discovery, and motion for extension of time, docket number
24, is denied.
IS SO ORDERED.