Opinion
C. A. 8:21-cv-02619-TMC-JDA
09-09-2021
Aaron Allen, Plaintiff, v. Aimee J. Zmroczek, Attorney at Law, Defendant.
REPORT AND RECOMMENDATION
Jacquelyn D. Austin United States Magistrate Judge
Aaron Allen (“Plaintiff”), proceeding pro se and in forma pauperis, brings this civil action pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights. Although Plaintiff's claims are related to criminal charges pending against him in the state court, he does not appear to be incarcerated at this time. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(d), D.S.C., the undersigned Magistrate Judge is authorized to review the Complaint filed in this case 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 for the reasons below.
BACKGROUND
Plaintiff makes the following allegations in his Complaint. [Doc. 1.] Plaintiff sues a single Defendant in this action, Aimee J. Zmroczek (“Defendant”), an attorney representing Plaintiff in a criminal action pending in the state court. [Id. at 2.] It is unclear whether Defendant presently represents Plaintiff in that matter. Plaintiff alleges that Defendant violated his rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. [Id. at 3.] Plaintiff alleges that he asked Defendant to file a motion to dismiss his case, but she filed a “speedy trial” motion instead. [Id. at 5.] Plaintiff alleges that Defendant failed to adequately and lawfully represent him, resulting in the loss of his freedom, home, furnishings, pool, lawn equipment, jewelry, and funds. [Id.] For his relief, Plaintiff seeks $75,000 in damages. [Id.] Plaintiff has attached to his Complaint numerous documents from his pending state court criminal action. [Doc. 1-1.]
The Court takes judicial notice that Plaintiff has been charged with domestic violence of a high and aggravated nature in the Greenwood County Court of General Sessions at case number 2016A2410201144. See Greenwood County Eighth Judicial Circuit Public Index, available at https://publicindex.sccourts.org/Greenwood/PublicIndex/ PISearch.aspx (search by case number 2016A2410201144) (last visited Aug. 18, 2021); see also Philips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (explaining that courts “may properly take judicial notice of matters of public record”); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (“We note that ‘the most frequent use of judicial notice is in noticing the content of court records.'”). That action remains pending.
STANDARD OF REVIEW
Plaintiff filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute. This statute authorizes the District Court to dismiss a case if it is satisfied that the action “fails to state a claim on which relief may be granted, ” is “frivolous or malicious, ” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).
Because 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).
Although the Court must liberally construe the pro se pleadings and Plaintiff is not required to plead facts sufficient to prove his case as an evidentiary matter in the Complaint, 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). “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).
DISCUSSION
Plaintiff 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).
Defendant is entitled to summary dismissal because she is not a state actor for purposes of this § 1983 action. As noted, in order to state a § 1983 claim, Plaintiff must allege that he was deprived of a constitutional right by a person acting under the color of state law. Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 658 (4th Cir. 1998). Defendant is Plaintiff's attorney in his state court criminal action, and Plaintiff has made no allegations that Defendant is a state actor. In Polk County v. Dodson, 454 U.S. 312 (1981), the Supreme Court addressed the issue of “whether a public defender acts under color of state law when providing representation to an indigent client” and held that “a public defender does not act under color of state law when performing a lawyer's traditional functions as counsel to a defendant in a criminal proceeding.” Id. at 317, 325; see also Hall v. Quillen, 631 F.2d 1154, 1156 (4th Cir. 1980) (concluding a court-appointed attorney was entitled to dismissal of the plaintiff's § 1983 claim against him for want of state action). Simply put, Defendant is entitled to dismissal for lack of state action. See Curry v. South Carolina, 518 F.Supp.2d 661, 667 (D.S.C. 2007) (explaining public defenders are not state actors under § 1983 and thus entitled to dismissal). Plaintiff has not made any allegations to plausibly show that Defendant exceeded the “traditional functions as counsel.” Polk Cty., 454 U.S. at 325; see also Trexler v. Giese, No. 3:09-cv-144-CMC-PJG, 2010 WL 104599, at *3 (D.S.C. Jan. 7, 2010) (finding attorney was entitled to summary dismissal in § 1983 action where attorney's representation in the state criminal case fell “squarely within the parameters of his legal representation” although the plaintiff was unhappy with the manner in which the attorney represented her). Accordingly, this action is subject to summary dismissal because Plaintiff has failed to state a claim for relief under § 1983.
To the extent Plaintiff's allegations may be construed as asserting a state law claim, such as one for negligence or malpractice, any such claim would also subject to summary dismissal because the Court would lack jurisdiction over it. Specifically, this Court does not have diversity jurisdiction because the Complaint does not allege the required complete diversity of citizenship of the parties or that the requisite amount in controversy is satisfied. See 28 U.S.C. § 1332. The Court notes that Plaintiff's state law claims could be heard by this Court through the exercise of supplemental jurisdiction, which allows federal courts to hear and decide state law claims along with federal law claims. Federal courts are permitted to decline to exercise supplemental jurisdiction pursuant to 28 U.S.C. § 1367(c)(3), however, if “the district court has dismissed all claims over which it has original jurisdiction.” In deciding whether to exercise supplemental jurisdiction, courts look at “convenience and fairness to the parties, the existence of any underlying issues of federal policy, comity, and considerations of judicial economy.” Shanaghan v. Cahill, 58 F.3d 106, 110 (4th Cir. 1995). Further, the Supreme Court has warned that “[n]eedless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law. . . . [I]f the federal claims are dismissed before trial . . . the state law claims should be dismissed as well.” United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966). Here, Plaintiff's claims present solely state law questions. Accordingly, the Court should decline to exercise supplemental jurisdiction over any state law claims presented in this case.
CONCLUSION AND RECOMMENDATION
Based on the foregoing, it is recommended that the District Court DISMISS this action pursuant to 28 U.S.C. § 1915 without leave to amend and without issuance and service of process.
The undersigned finds that Plaintiff cannot cure the defects in his Complaint by mere amendment and therefore recommends that the instant action be dismissed without affording Plaintiff an opportunity to amend because amendment would be futile. See Thomas v. Drive Auto. Indus. of Am., Inc., No. 6:18-cv-169-AMQ, 2018 WL 5258811, at *2 (D.S.C. July 25, 2018) (declining to automatically give plaintiff leave to amend because plaintiff could not cure the defects in his claims against defendant by mere amendment), Report and Recommendation adopted by 2018 WL 5255183 (D.S.C. Oct. 22, 2018); Workman v. Kernell, No. 6:18-cv-00355-RBH-KFM, 2018 WL 4826535, at *2 (D.S.C. Oct. 2, 2018) (declining to give plaintiff leave to amend because it would be futile for plaintiff to amend his complaint against the defendants being dismissed), aff'd, 766 Fed.Appx. 1 (4th Cir. 2019). Here, Plaintiff's state criminal charges remain pending at this time, and he can raise the issues complained of herein with the state court. Further, dismissal without leave to amend is proper because Defendant is not a state actor subject to suit under § 1983, and Plaintiff would be unable to allege facts to show that Defendant is a proper party in such an action.
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
250 East North Street, Suite 2300
Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).