Opinion
Civil Action No. 3:09CV512-HEH.
January 22, 2010
MEMORANDUM OPINION (Adopting Report and Recommendation and Dismissing Action)
Plaintiff, a Virginia inmate, brings this civil action. The matter is before the Court for evaluation pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A.
I. PROCEDURAL HISTORY
The Magistrate Judge made the following findings and recommendations:
Preliminary Review
This Court must dismiss any action filed by a prisoner if the Court determines the action (1) "is frivolous" or (2) "fails to state a claim on which relief may be granted." 28 U.S.C. § 1915(e)(2); see 28 U.S.C. § 1915A. The first standard includes claims based upon "`an indisputably meritless legal theory,'" or claims where the "`factual contentions are clearly baseless.'" Clay v. Yates, 809 F. Supp. 417, 427 (E.D. Va. 1992) (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)). The second standard is the familiar standard for a motion to dismiss under Fed.R.Civ.P. 12(b)(6).
"A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Republican Party of N. C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citing 5A Charles A. Wright Arthur R. Miller, Federal Practice and Procedure § 1356 (1990)). In considering a motion to dismiss for failure to state a claim, a plaintiff's well-pleaded allegations are taken as true and the complaint is viewed in the light most favorable to the plaintiff. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993); see also Martin, 980 F.2d at 952. This principle only applies to factual allegations, however, and "a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009).
The Federal Rules of Civil Procedure "require[] only `a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to `give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (second alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Plaintiffs can not satisfy this standard with complaints containing only "labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Bell Atlantic Corp., 550 U.S. at 555 (citations omitted). Instead, a plaintiff must allege facts sufficient "to raise a right to relief above the speculative level," id. (citation omitted), stating a claim that is "plausible on its face," id. at 570, rather than merely "conceivable." Id. "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." Iqbal, 129 S. Ct. at 1949 (citing Bell Atl. Corp., 550 U.S. at 556). Therefore, in order for a claim or complaint to survive dismissal for failure to state a claim, the plaintiff must "allege facts sufficient to state all the elements of [his or] her claim." Bass v. E.I. Dupont de Nemours Co., 324 F.3d 761, 765 (4th Cir. 2003) (citing Dickson v. Microsoft Corp., 309 F.3d 193, 213 (4th Cir. 2002); Iodice v. United States, 289 F.3d 270, 281 (4th Cir. 2002)). Lastly, while the Court liberally construes pro se complaints, Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), it does not act as the inmate's advocate, sua sponte developing statutory and constitutional claims the inmate failed to clearly raise on the face of his complaint. See Brock v. Carroll, 107 F.3d 241, 243 (4th Cir. 1997) (Luttig, J., concurring); Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Summary of Allegations and Analysis
In his complaint, Plaintiff alleges that he paid Defendant Charles C. Cosby, Jr., $5000 to represent him in a criminal matter in the Circuit Court for Lunenburg County. Plaintiff contends that Defendant did not perform adequately, and allowed State officials to coerce Plaintiff into removing his wife from the witness list. Plaintiff requests $100,000 in damages, and also asks the court to enjoin Defendant from practicing law and to order him to disclose the reason he is no longer a member of a law firm.
"To state a claim under [42 U.S.C.] § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48 (1988) (citing cases). "`[T]he under-color-of-state-law element of § 1983 excludes from its reach merely private conduct, no matter how discriminatory or wrongful.'" Mentavlos v. Anderson, 249 F.3d 301, 310 (4th Cir. 2001) (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999)).
The United States Court of Appeals for the Fourth Circuit has identified a "handful of contexts" in which "the conduct of an ostensibly private actor is under color of law for purposes of section 1983." Goldstein v. Chestnut Ridge Volunteer Fire Co., 218 F.3d 337, 342 (4th Cir. 2000). Acts by a private citizen may be taken under color of state law when the state does more than "`adopt a passive position toward the underlying private conduct.'" Id. (quoting Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 614-15 (1989). Color of state law may also exist where "the state delegates its obligations to a private actor," id. (citing West, 487 U.S. at 54), or where the private individual was performing a traditional state function, id. (quoting United Auto Workers v. Gaston Festivals, Inc., 43 F.3d 902, 906 (4th Cir. 1995)). A private citizen may also be fairly said to act under color of state law where unconstitutional state procedures are used to accomplish the deprivation. Id. (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 933 (1982)). State action is not limited to these contexts, however, and the analysis requires "an examination of all the relevant circumstances, in an attempt to evaluate `the degree of the Government's participation in the private party's activities.'" Id. (quoting Skinner, 489 U.S. at 614).
Plaintiff does not allege any facts indicating that Defendant acted under the color of state law. Although Defendant is a licensed attorney retained by Plaintiff for criminal proceedings, he does not thereby act under color of state law. Crawford-El v. Shapiro, No. 89-6570, 1989 WL 64191, at *1 (4th Cir. June 5, 1989) (rejecting argument that attorney was state actor merely because state granted license to practice law); see also Deas v. Potts, 547 F.2d 800, 800 (4th Cir. 1976) (holding that retained defense attorney was not a state actor). Plaintiff does not otherwise indicate that Defendant "may fairly be said to be a state actor." Am. Mfrs. Mut. Ins. Co., 526 U.S. at 50 (quoting Lugar, 457 U.S. at 937). Accordingly, it is RECOMMENDED that Plaintiff's claim be DISMISSED.
Because the "under color of state law" requirement is equivalent to the "state action" requirement of the Fourteenth Amendment, the terms are interchangeable for the purposes of this analysis. See Goldstein, 218 F.3d at 341 ( citing Haavistola v. Cmty. Fire Co. of Rising Sun, Inc., 6 F.3d 211, 215 (4th Cir. 1993)).
(October 14, 2009 Report and Recommendation.) The Court advised Plaintiff that he could file objections or an amended complaint within ten (10) days of the date of entry thereof. More than ten days have elapsed, and Plaintiff has not filed objections or an amended complaint.
II. STANDARD OF REVIEW
"The magistrate makes only a recommendation to this court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with this court." Estrada v. Witkowski, 816 F. Supp. 408, 410 (D.S.C. 1993) ( citing Mathews v. Weber, 423 U.S. 261, 270-71 (1976)). This Court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). "The filing of objections to a magistrate's report enables the district judge to focus attention on those issues-factual and legal-that are at the heart of the parties' dispute." Thomas v. Arn, 474 U.S. 140, 147 (1985). This Court may adopt without de novo review any portion of the magistrate judge's recommendation to which Plaintiff does not raise a specific objection. See Diamond v. Colonial Life Accident Ins. Co., 416 F.3d 310, 316 (4th Cir. 2005).III. CONCLUSION
Plaintiff having no objections, the Report and Recommendation will be ACCEPTED AND ADOPTED, and the action will be DISMISSED WITH PREJUDICE for failure to state a claim. The Clerk will be DIRECTED to note the disposition of the action for purposes 28 U.S.C. § 1915(g).An appropriate Order will accompany this Memorandum Opinion.