Opinion
C. A. 6:22-cv-03533-TMC-KFM
01-10-2023
Jimmy M. Brock, II, Plaintiff, v. Greenville County Sheriff's Department, Charles Propst, Defendants.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald United States Magistrate Judge
The plaintiff, a pretrial detainee proceeding pro se and in forma pauperis, filed this action pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights. Pursuant to the provisions of 28 U.S.C. § 636(b), and Local Civil Rule 73.02(B)(2)(d) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in cases filed under 42 U.S.C. § 1983 and submit findings and recommendations to the district court.
The plaintiff's complaint was entered on the docket on October 12, 2022 (doc. 1). On December 14, 2022, the undersigned issued an order informing the plaintiff that his complaint was subject to dismissal as drafted and providing him with time to file an amended complaint to correct the deficiencies noted in the order (doc. 17). The plaintiff was informed that if he failed to file an amended complaint or cure the deficiencies outlined in the order, the undersigned would recommend that his claims be dismissed (id. at 5-6). The plaintiff has failed to file an amended complaint within the time provided; accordingly, the undersigned recommends that the instant matter be dismissed.
ALLEGATIONS
This is a § 1983 action filed by a pretrial detainee regarding events surrounding an arrest in December 2020, unrelated to his current incarceration (docs. 1; 1-2). The plaintiff's allegations involve a charge for possession of narcotic in schedule(b), (c), LSD & Schedule II, second offense, which was dismissed for insufficient evidence on March 2, 2021. See Greenville County Public Index, https://publicindex.sccourts.org/Greenville/ PublicIndex/PISearch.aspx (enter the plaintiff's name and 2020A2330211994) (last visited January 10, 2023). The plaintiff alleges that his rights were violated when he was wrongfully incarcerated from December 13, 2020, to February 8, 2021, for the above charge as well as a probation violation charge (doc. 1-2 at 4). The plaintiff alleges that the arrest warrant stated that the plaintiff had heroin when in fact he was carrying a legal drug Taddifil (doc. 1-2 at 4). The plaintiff alleges that on December 13, 2020, he was standing in front of a restaurant in Greenville when an officer pulled up and asked to search him for no reason (docs. 1-2 at 5; 1-3 at 1). The officer then said that the plaintiff had heroin on him even though he did not (doc. 1-2 at 5). The plaintiff informed Mr. Propst, his public defender, that the container had Taddifil and not heroin in it and Mr. Propst laughed at him and did nothing (docs. 1-2 at 5; 1-3 at 1).
The plaintiff alleges that because he was incarcerated he caught COVID-19 twice and is still suffering from complications as a result of having COVID-19 twice (some of which have required additional hospitalization) (docs. 1-2 at 4, 6; 1-3 at 1). He also alleges that being in jail caused him to lose his job (doc. 1-2 at 6). For relief, the plaintiff seeks money damages (doc. 1-2 at 6).
STANDARD OF REVIEW
The 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). Further, the plaintiff is a prisoner under the definition of 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, even if the plaintiff had prepaid the full filing fee, this Court is charged with screening the plaintiff's lawsuit to identify cognizable claims or to dismiss the 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. § 1915A.
As a pro se litigant, the plaintiff's 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 (2007) (per curiam). 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).
This complaint is filed 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).
DISCUSSION
As noted above, the plaintiff filed the instant action pursuant to § 1983, seeking damages from the defendants. However, the plaintiff's complaint is subject to summary dismissal.
Greenville County Sheriff's Department
The Greenville County Sheriff's Department (“GCSD”) is not a “person” as defined by § 1983, thus, it is entitled to summary dismissal. It is well settled that only “persons” may act under color of state law; thus, a defendant in a § 1983 action must qualify as a “person.” As noted, this defendant is not a person; hence, it is not subject to suit under 42 U.S.C. § 1983. See Harden v. Green, 27 Fed.Appx. 173, 178 (4th Cir. 2001); see also Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989) (holding that “neither a state nor its officials acting in their official capacities are ‘persons' under § 1983.”); Rhodes v. Seventh Circuit Solicitors Ofc., C/A No. 9:09-cv-1863-JFA-BM, 2009 WL 2588487, at *3 (D.S.C. Aug. 19, 2009). Accordingly, GCSD is entitled to summary dismissal.
Charles Propst
Charles Propst, Esquire, is subject to summary dismissal because he does not act under color of state law. It is well-settled that “[a]nyone whose conduct is ‘fairly attributable to the state' can be sued as a state actor under § 1983.” Filarsky, 566 U.S. 377, 383 (2012). To determine whether state action is present, no single factor is determinative and the “totality of the circumstances” must be evaluated. See Goldstein v. Chestnut Ridge Volunteer Fire Co., 218 F.3d 337, 341-43 (4th Cir. 2000). However, purely private conduct, no matter how wrongful, is not actionable under 42 U.S.C. § 1983 and the United States Constitution. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 936 (1982); Mentavlos v. Anderson, 249 F.3d 301, 310 (4th Cir. 2001).
The law is well-established that appointed defense counsel, such as Mr. Propst, is not a state actor for purposes of § 1983 claims because the public defender acts not on behalf of the state; rather, the public defender “is the State's adversary.” Polk Cnty. v. Dodson, 454 U.S. 312, 323 n.13 (1981); see Mahaffey v. Sumter Cnty. Pub. Defender's Corp., C/A No. 3:06-3557-SB, 2007 WL 3001675, at *4 (D.S.C. Oct. 9, 2007) (“[T]he Sumter County Public Defender's Corp. did not act under color of state law and is entitled to summary dismissal.”); see also Hall v. Quillen, 631 F.2d 1154, 1155-56 (4th Cir. 1980) (finding no state action under § 1983, even where the plaintiff's attorney was court-appointed). While “public defenders are not immune from § 1983 liability when they conspire with state officials to deprive their client of federal rights” (Figueroa v. Clark, 810 F.Supp. 613, 616 (E.D. Pa. 1992); see Tower v. Glover, 467 U.S. 914 (1984)), the plaintiff's complaint - alleging that Mr. Propst laughed at him and did nothing when the plaintiff told him that he was carrying a legal drug - does not plausibly allege a conspiracy between Mr. Propst and the state. Indeed, as noted by the plaintiff, his charge was dismissed for insufficient evidence. See Greenville County Public Index (enter the plaintiff's name and 2020A2330211994) (last visited January 10, 2023). As referenced above, the employment relationship between a public defender and the state is insufficient to establish that a public defender acts under color of state law for purposes of § 1983. Accordingly, the plaintiff's complaint fails to state a claim for relief against Mr. Propst and he is subject to summary dismissal.
RECOMMENDATION
By order issued December 14, 2022, the undersigned provided the plaintiff an opportunity to correct the defects identified in his complaint and further warned the plaintiff that if he failed to timely file an amended complaint or failed to cure the identified deficiencies, the undersigned would recommend to the district court that the action be dismissed with prejudice and without leave for further amendment (doc. 17). The plaintiff failed to file an amended complaint within the time provided. Accordingly, in addition to the reasons discussed herein, this action should be dismissed pursuant to Federal Rule of Civil Procedure 41(b) for failure to comply with a court order. Therefore, the undersigned recommends that the district court dismiss this action with prejudice, without further leave to amend, and without issuance and service of process. See Britt v. DeJoy, 45 F.4th 790, 2022 WL 3590436 (4th Cir. Aug. 17, 2022) (mem.) (published) (noting that “when a district court dismisses a complaint or all claims without providing leave to amend . . . the order dismissing the complaint is final and appealable”). The attention of the parties is directed to the important notice on the following page.
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 committees 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, Room 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).