Opinion
8:24-cv-1896-HMH-BM
06-05-2024
Darriel A. Burleson, Plaintiff, v. Bill Nettles, Attorney at Law, Defendant.
REPORT AND RECOMMENDATION
BRISTOW MARCHANT UNITED STATES MAGISTRATE JUDGE
Plaintiff, proceeding pro se, brings this civil 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), D.S.C., the undersigned Magistrate Judge is authorized to review the Complaint for relief and submit findings and recommendations to the District Court. For the reasons below, the undersigned concludes that this action is subject to summary dismissal.
In the caption of his handwritten document, Plaintiff referenced 42 U.S.C. § 1997. However, the Court construes this action as brought under 42 U.S.C. § 1983.
BACKGROUND
Plaintiff commenced this action by filing a handwritten document in which he makes the following allegations. ECF No. 1. At the time he commenced this action, Plaintiff was a pretrial detainee and incarcerated at the Alvin S. Glenn Detention Center in Columbia, South Carolina (the “Detention Center”). Id. at 1. Plaintiff contends that Defendant deprived him of the right to selfrepresentation or to hire an attorney. Id. Plaintiff contends he has been detained and held without a bond since October 4, 2023. Id. In February 2024, Plaintiff filed a motion to dismiss his counsel, Attorney Bill Nettles, claiming that “counsel was not actively defending [Plaintiff] resulting in over 6 months detainment with no bond, no discovery, nor any pretrial hearing.” Id. Plaintiff contends he “paid a retainer to Attorney Simone Martin, yet [Attorney] Nettles will not remove himself as my counsel.” Id. According to Plaintiff, this has resulted in the loss of $100,000 from a real estate sale and $50,000 for the loss of his Volvo semi tractor trailer. Id.
Based on a notice of change of address filed by Plaintiff, it appears he is no longer in custody at the Detention Center. ECF No. 19.
Plaintiff states he has been incarcerated “[s]ince October 4, 2024”; however, that appears to be a scrivener's error and the correct year is likely 2023.
By Orders dated April 17, and May 9, 2024, Plaintiff was directed to bring the case into proper form for further evaluation and possible service of process by filing the necessary information and paperwork in accordance with General Order In Re: Procedures in Civil Actions Filed by Prisoner Pro Se Litigants, No. 3:07-mc-5014-JFA (D.S.C. Sept. 18, 2007). ECF Nos. 7, 15. Among other things, Plaintiff was directed to file a Complaint on the standard form so that the Court could evaluate his claims. Id. However, Plaintiff has not filed the standard Complaint form.
Instead, Plaintiff filed a motion for continuance. ECF No. 20. In his motion, Plaintiff states as follows:
This civil action filed pursuant to 42 U.S.C. § 1983 by a Plaintiff who at the time was a detainee at a county detention center. In order to further make the case that my prolonged detention was in violation of my civil rights, Pro Se, I request that this Action is Continued until 21 days after the final ruling on the initial charges which is currently scheduled for 10 September 2024.Id.
Finally, the Court takes judicial notice that Plaintiff has been charged with the following crimes in the Richland County Court of General Sessions: first degree burglary at case number 2023A4010204771, and violation of a restraining order at case number 2023A4010204772. See Richland County Fifth Judicial Circuit Public Index, available at https://publicindex.sccourts.org/richland/PublicIndex/PISearch.aspx (last visited June 3, 2024) (search by case numbers listed above); see also Philips v. Pitt Cnty. 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.'”). Based on a review of the dockets in both cases, it appears that Plaintiff is now represented by Attorney Simone Martin, and he has been granted a bond.
STANDARD OF REVIEW
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). However, even under this less stringent standard, the pro se pleading remains 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, Smallv. 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
The 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) (quoting 42 U.S.C. § 1983). 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 Complaint filed in this case is subject to summary dismissal for the reasons below.
First, Plaintiff fails to plausibly allege that Defendant-a lawyer representing Plaintiff in his state court criminal proceedings-is a “state actor” amenable to suit under § 1983. See West, 487 U.S. at 49 (“To constitute state action, ‘the deprivation must be caused by the exercise of some right or privilege created by the State . . . or by a person for whom the State is responsible,' and ‘the party charged with the deprivation must be a person who may fairly be said to be a state actor.'”) (quoting Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 936 n.18 (1982)); see also Goldstein v. Chestnut Ridge Volunteer Fire Co., 218 F.3d 337, 343 (4th Cir. 2000) (stating that whether the defendants are state actors depends on, among other factors, whether the injury caused is aggravated in a unique way by the incidents of governmental authority, the extent and nature of public assistance and public benefits accorded the private actor, the extent and nature of governmental regulation over the actor, and whether the state itself regards the actor as a state actor). Private attorneys in a civil lawsuit do not act under color of state law, even if they are court appointed. See Limehouse v. Delaware, 144 Fed.Appx. 921, 923 (3d Cir. 2005) (finding a private attorney's representation of a state defendant in a civil proceeding did not constitute state action); cf. Deas v. Potts, 547 F.2d 800, 800 (4th Cir. 1976) (“A private attorney who is retained to represent a criminal defendant is not acting under color of state law, and therefore is not amenable to suit under s 1983.”); Hall v. Quillen, 631 F.2d 1154, 1155 (4th Cir. 1980) (finding no state action under § 1983 where the plaintiff's criminal defense attorney was court-appointed); Parkell v. South Carolina, 687 F.Supp.2d 576, 586 (D.S.C. 2009) (“An attorney, whether retained, court-appointed, or a public defender, does not act under color of state law, which is a jurisdictional prerequisite for any civil action brought under 42 U.S.C. § 1983.”). Therefore, Plaintiff fails to plausibly allege that Defendant is a state actor that can be sued under § 1983. And, without a proper defendant named in this action, the case is subject to dismissal.
Further, Plaintiff's claims appear to be moot at this time. In his handwritten Complaint, Plaintiff did not identify any relief that he purports to seek in this action. And it is unclear what specific claims he is attempting to assert. To the extent Plaintiff is seeking to have Attorney Bill Nettles terminated as his counsel, such a claim is moot as Attorney Nettles has been terminated as his counsel in the state court proceedings. To the extent Plaintiff is seeking a bond, such a claim is moot as he has been granted bond in the state court proceedings. Plaintiff may also be asserting that his detention, arrest, and/or the charges pending against him are unlawful. However, Plaintiff has failed to name any Defendant responsible for such claims and has failed to allege facts to support such claims. In sum, Plaintiff has failed to allege facts to state a cognizable constitutional claim, and this action is therefore subject to summary dismissal.
Additionally, to the extent Plaintiff is seeking release from custody, such relief is not available in this civil rights action. See Heck v. Humphrey, 512 U.S. 477, 481 (1994) (stating that “habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release, even though such a claim may come within the literal terms of § 1983”); Preiser v. Rodriguez, 411 U.S. 475, 487-88 (1973) (explaining a challenge to the duration of confinement is within the core of habeas corpus). “Release from pretrial detention is simply not an available remedy in a § 1983 action.” El v. Fornandes, No. 2:19-cv-3045-RMG-MGB, 2019 WL 7900140, at *4 (D.S.C. Nov. 22, 2019) (explaining a plaintiff cannot use § 1983 to get out of jail), Report and Recommendation adopted by 2019 WL 6712057 (D.S.C. Dec. 10, 2019).
Additionally, the Court should abstain from hearing Plaintiff's claims related to his pending state court criminal charges. In Younger v. Harris, 401 U.S. 37 (1971), the Supreme Court held that a federal court should not equitably interfere with state criminal proceedings “except in the most narrow and extraordinary of circumstances.” Gilliam v. Foster, 75 F.3d 881, 903 (4th Cir. 1996) (en banc) (internal quotation marks omitted). The Younger Court noted that courts of equity should not act unless the moving party has no adequate remedy at law and will suffer irreparable injury if denied equitable relief. Younger, 401 U.S. at 43-44; see also Sprint Commc'ns, Inc. v. Jacobs, 571 U.S. 69, 72-73 (2013) (explaining the circumstances when Younger abstention is appropriate).
From Younger and its progeny, the Court of Appeals for the Fourth Circuit has culled the following test to determine when abstention is appropriate: “[1] there are ongoing state judicial proceedings; [2] the proceedings implicate important state interests; and [3] there is an adequate opportunity to raise federal claims in the state proceedings.” Martin Marietta Corp. v. Md. Comm'n on Hum. Rels., 38 F.3d 1392, 1396 (4th Cir. 1994) (citing Middlesex Cnty. Ethics Comm'n v. Garden State Bar Ass'n, 457 U.S. 423, 432 (1982)). Here, Plaintiff is involved in ongoing state court criminal proceedings, and Plaintiff appears to seek relief for alleged constitutional violations related to his pending criminal actions; thus, the first element is satisfied. The second element is satisfied for reasons the Supreme Court has explained: “[T]he States' interest in administering their criminal justice systems free from federal interference is one of the most powerful of the considerations that should influence a court considering equitable types of relief.” Kelly v. Robinson, 479 U.S. 36, 49 (1986). The third element is also satisfied, as the Supreme Court has noted “that ordinarily a pending state prosecution provides the accused a fair and sufficient opportunity for vindication of federal constitutional rights.” Gilliam, 75 F.3d at 903 (quoting Kugler v. Helfant, 421 U.S. 117, 124 (1975)).
A ruling in Plaintiff's favor in this case would call into question the validity of the state court criminal proceedings against him and would significantly interfere with those ongoing state proceedings. See Younger, 401 U.S. at 43-45; Cinema Blue of Charlotte, Inc. v. Gilchrist, 887 F.2d 49, 52 (4th Cir. 1989) (“[F]ederal courts should abstain from the decision of constitutional challenges to state action, however meritorious the complaint may be, ‘whenever [the] federal claims have been or could be presented in ongoing state judicial proceedings that concern important state interests.'”) (citation omitted); Washington v. Tilton, No. 2:10-cv-997-HFF-RSC, 2010 WL 2084383, at *1 (D.S.C. May 19, 2010). This Court finds that Plaintiff can adequately litigate his federal constitutional rights in the state court proceedings. Thus, this Court should abstain from adjudicating Plaintiff's claims related to the pending criminal charges against him and the legality of his detention at the Detention Center.
Finally, the undersigned recommends that Plaintiff's motion for continuance be denied. Plaintiff has failed to demonstrate good cause to warrant a continuance in this case given that he has failed to name a proper Defendant or identify a cognizable claim to survive dismissal on initial review. As such, the Court should not keep this case on its docket. If Plaintiff wishes to pursue a claim at a later time, he may do so by filing a new complaint against appropriate defendants asserting cognizable claims.
CONCLUSION AND RECOMMENDATION
Therefore, IT IS RECOMMENDED that Plaintiff's motion for continuance be DENIED and that Plaintiff's Complaint be dismissed without service of process and without leave to amend.
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).