Thomas v. Colvin

Antonio D. Thomas, Plaintiff,

v.Richard F. Colvin; Chanda L. Robinson, Defendants.

C/A: 2:11-2066-DCN-BHH

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA

September 6, 2011

REPORT AND RECOMMENDATION

This civil action, filed pro se and in forma pauperis by a pretrial detainee, is before the Court for initial screening pursuant to 28 U.S.C. §§ 1915 and 1915A.¹ Plaintiff alleges that he is incarcerated in the Georgetown County Detention Center ("GCDC") in Georgetown, South Carolina. It appears that the Plaintiff is awaiting trial in the Georgetown County General Sessions Court of South Carolina's Fifteenth Judicial Circuit, on charges which were brought against him in December 2009.² Plaintiff files this action againstDefendants Richard F. Colvin and Chandra L. Robinson. Plaintiff alleges that Defendant Colvin is a public defender and that Defendant Robinson is "a victim advocate for the city of Georgetown County." ECF No. 1, p. 3. Plaintiff's Complaint is liberally construed as an attempt to assert a claim of violation of Plaintiff's constitutional rights under 42 U.S.C. § 1983.³ Having carefully reviewed the instant Complaint and the applicable law, the undersigned United States Magistrate Judge finds that should be summarily dismissed,without prejudice and without issuance and service of process, because it fails to state a claim on which relief may be granted by this Court.

PRO SE AND IN FORMA PAUPERIS REVIEW

Under established local procedure in this judicial district, a careful review has been made of the pro se pleadings pursuant to the provisions of 28 U.S.C. § 1915. The review has been conducted in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319 (1989); Estelle v. Gamble, 429 U.S. 97 (1976); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Maryland House of Correction, 64 F.3d 951 (4th Cir. 1995); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); Boyce v. Alizaduh, 595 F.2d 948 (4th Cir. 1979) (recognizing the district court's authority to conduct an initial screening of a pro se filing).

The Complaint was filed pursuant to 28 U.S.C. § 1915, which permits an indigent litigant to commence an action in federal court without paying the administrative costs of proceeding with the lawsuit. To protect against possible abuses of this privilege, the statute allows a district court to dismiss the case upon a finding that the action is "frivolous or malicious" or "fails to state a claim on which relief may be granted." § 1915(e)(2)(B)(i),(ii). A finding of frivolity can be made where the complaint "lacks an arguable basis either in law or fact." Denton, 504 U.S. at 31. Hence, under § 1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte. Neitzke, 490 U.S. at 327.

This Court is required to construe pro se complaints and petitions liberally. Such pro se complaints and petitions are held to a less stringent standard than those drafted by attorneys, Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), and a federal district court is charged with liberally construing a complaint or petition filed by a pro se litigant toallow the development of a potentially meritorious case. See Hughes v. Rowe, 449 U.S. 5, 9-10 (1980); Cruz v. Beto, 405 U.S. 319 (1972). When a federal court is evaluating a pro se complaint or petition, the plaintiff's or petitioner's allegations are assumed to be true. Fine v. City of New York, 529 F.2d 70, 74 (2nd Cir. 1975). 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 the 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 currently cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990). Even under this less stringent standard, the Complaint filed in this case is subject to summary dismissal.

BACKGROUND

Plaintiff's Complaint alleges that the issues he is attempting to litigate are: "illegal representation, false documentation, forced indigency, withholding evidence." ECF No. 1, p. 2. With regard to Defendant Colvin, Plaintiff alleges:

Not only did he provide me with unadequate (sic) legal assistance. (sic) But he was never even assigned to me. Therefor (sic), making his representation illegal. What he did provide me with as legal assistance actually constitutes as none. Secondly with Mr. Colvin he with held (sic) much needed evidence to help me with my case. I personally believe he with held (sic) the evidence to hurt me in my case. He was never appointed to me he volunterly (sic) came to me with my case. But not only has he hurt my case, but I believe he has to others, and will to as many as he can to benifit (sic) themselves in the Solicitors office.

ECF No. 1, p. 3. With regard to Defendant Robinson, Plaintiff alleges:

She has aided in my case to falseifing (sic), warrants as included with my papers she, herself has hurt me in my trial by tampering with evidence. On my warrants alone she has crossed out one name, and then put her own! I was never even read my warrants or even my miranda rights! What they have done is illegal, and unfare (sic) justice.

ECF No. 1, p. 3. As to the relief he seeks, Plaintiff alleges:

What I would like the court to do is provide fair adequate legal aid for all the wrong doings (sic) of these people in my case! Not only has what they done (sic) illegal, but should never happen to anyone ever again. I ask for justice. And for justice to be served upon those I have had to waste more than a year of my life to. I would like those who break the law (sic) be brought to court or charges brought up against those who think they are above the law. I would also ask that I be reinversed (sic) for loss (sic) wages of being unable to work and provide for my children and family. And also for my time served and be falsely aqueted, (sic) and the damage to my name in town, and the suffering that have put my family and my self (sic) through.

ECF No. 1, p. 4.

DISCUSSION

As noted above, in order to state a cause of action under 42 U.S.C. § 1983, a plaintiff must allege that: (1) individual defendant(s) deprived him of a federal right, and (2) did so under color of state law. Gomez v. Toledo, 446 U.S. 635, 640 (1980); Hall v. Quillen, 631 F.2d 1154, 1155-56 (4th Cir. 1980). The purpose of § 1983 is to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails. See McKnight v. Rees, 88 F.3d 417(6th Cir. 1996). Purely private conduct such as that alleged in this case against Defendant Colvin, no matter how wrongful, injurious, fraudulent, or discriminatory, is not actionable under 42 U.S.C. § 1983 or under the Fourteenth Amendment, the two most common provisions under which persons come into federal court to claim that others have violated their constitutional rights. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 936(1983); Burton v. Wilmington Parking Auth., 365 U.S. 715, 721 (1961).⁴ Because the United States Constitution regulates only the government, not private parties, a litigant claiming that his constitutional rights have been violated must first establish that the challenged conduct constitutes "state action." See, e.g., Blum v. Yaretsky, 457 U.S. 991, 1002 (1982). To qualify as state action, the conduct in question "must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible," and "the party charged with the [conduct] must be a person who may fairly be said to be a state actor." Lugar, 457 U.S. at 937; see U. S. v. Int'l Brotherhood of Teamsters, Chauffeurs, Warehousemen Helpers of Am., AFL-CIO, 941 F.2d 1292 (2d Cir.1991). Although a private individual or corporation can act under color of state law, his, her, or its actions must occur where the private individual or corporation is a willful participant in joint action with the State or with an agent of the State. Dennis v. Sparks, 449 U.S. 24, 27-28, 101 S. Ct. 183, 66 L. Ed. 2d 185 (1980).

Plaintiff cannot maintain a civil rights claim against Defendant Colvin because, in acting as Plaintiff's attorney, Colvin has not acted under color of state law. "A lawyer representing a client is not, by virtue of being an officer of the court, a state actor 'under color of state law' within the meaning of § 1983." Polk County v. Dodson, 454 U.S. 312, 318 (1981). "Although lawyers are generally licensed by the States, 'they are not officialsof government by virtue of being lawyers.'" Id. at 319 n.9 (quoting In re Griffiths, 413 U.S. 717, 729 (1973)). It is well settled that an attorney, whether retained, court-appointed, or a public defender, does not act under color of state law when performing traditional functions as counsel. See Polk County v. Dodson, 454 U.S. at 317-324 nn.8-16 (1981) (public defender); Hall v. Quillen, 631 F.2d at 1155-1156 & nn.2-3 (4th Cir. 1980) (court-appointed attorney); Deas v. Potts, 547 F.2d 800 (4th Cir. 1976) (private attorney). Thus, Plaintiff's Complaint fails to state a claim against Defendant Colvin and should be summarily dismissed.

With regard to Defendant Robinson, Plaintiff alleges that she "falseifing (sic), warrants as included with my papers . . . [o]n my warrants alone she has crossed out one name, and then put her own." ECF No. 1, p. 3. However, these allegations fail to state a plausible claim that Defendant Robinson violated Plaintiff's constitutional rights. It is well settled in...