Opinion
C. A. 6:23-cv-04580-DCC-JDA
12-01-2023
Philip Scott Steele, Plaintiff, v. Richard Warder, Attorney, Russell Sanford, Attorney, Defendants.
REPORT AND RECOMMENDATION
JACQUELYN D. AUSTIN, UNITED STATES MAGISTRATE JUDGE
Philip Scott Steele (“Plaintiff”), proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights. Plaintiff is presently incarcerated as a pretrial detainee at the Greenville County Detention Center (the “Detention Center”). [Docs. 1 at 2; 18 at 2, 4.] 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 pleadings filed in this matter and to submit findings and recommendations to the District Court. Having reviewed the pleadings in accordance with applicable law, the undersigned finds that this action is subject to dismissal.
Plaintiff has paid the full filing fee and is therefore not proceeding under 28 U.S.C. § 1915, the in forma pauperis statute. [Doc. 9.]
BACKGROUND
Procedural History
Plaintiff commenced this action by filing a Complaint on the standard court form. [Doc. 1.] By Order dated October 31, 2023, the Court notified Plaintiff that, upon screening in accordance with 28 U.S.C. § 1915A, the Complaint was subject to summary dismissal for the reasons identified by the Court in its Order. [Doc. 16.] The Court noted, however, that Plaintiff might be able to cure the deficiencies of his Complaint and granted Plaintiff twenty-one days to file an amended complaint. [Id. at 11-12.] Plaintiff was notified that “an amended complaint replaces all prior complaints and should be complete in itself.” [Id. at 12.] Further, Plaintiff was specifically warned as follows:
If Plaintiff fails to file an amended complaint that corrects those deficiencies identified [in the Court's Order], this action will be recommended for summary dismissal pursuant to 28 U.S.C. . . . § 1915A without further leave to amend.[Id. (emphasis omitted).] Thereafter, Plaintiff filed an Amended Complaint, which was entered on the docket on November 13, 2023. [Doc. 18.]
Factual Allegations
Plaintiff makes the following allegations in his Amended Complaint. Plaintiff alleges that Defendants have committed legal malpractice, breach of their fiduciary duties, and intentional tort. [Id. at 4.] Plaintiff alleges that Defendants allowed Judge Ferguson to violate his due process and equal protection rights and allowed Judge Kinlaw to violate his right to a bond. [Id.]
The original Complaint named the following Defendants: Stephen P. Eptine, Alex Kinlaw, Jr., and Judge Stinson Ferguson. [Doc. 1 at 2-3.] Defendant Ferguson was apparently misidentified in the Complaint as “Magistrate Judge Alexis McElrath” and Plaintiff corrected that name in a document attached to the Complaint. [Docs. 1 at 10; 1-1.] The Amended Complaint names the following Defendants: Richard Warder and Russell Sanford, who are identified as attorneys. [Doc. 18 at 1-3.]
Plaintiff alleges the events giving rise to his claims occurred on June 10, 2022, at the municipal court and on August 12, 2022, at the circuit court. [Id. at 5.] By way of summary, Plaintiff alleges that Defendants failed to properly represent him in certain judicial proceedings in the state court related to his pending criminal charges. [Id. at 6-10.]
For his injuries, Plaintiff alleges that he has suffered emotional distress, anxiety, depression, damage to his reputation and family relations, and the loss of his liberty and freedom. [Id. at 11.] Plaintiff contends he is unable to prepare his defense because he has not been released on bond. [Id.] Finally, Plaintiff alleges he will continue to suffer irreparable injury unless the Court grants compensatory and punitive relief. [Id.]
For his relief, Plaintiff requests a declaration that the acts and omissions of Defendants violated his constitutional rights and he seeks compensatory damages, punitive damages, and aggravated damages. [Id. at 12.]
The Court takes judicial notice that Plaintiff has been charged in the Greenville County Court of General Sessions with the following crimes: 1st degree criminal sexual conduct with a minor at case number 2021A2320603124; 3rd degree criminal sexual conduct with a minor at case number 2021A2320603125; 3rd degree criminal sexual conduct with a minor at case number 2021A2320603126; 1st degree criminal sexual conduct with a minor at case number 2021A2320603127; and 3rd degree criminal sexual conduct with a minor at case number 2021A2320603128. See Greenville County Thirteenth Judicial Circuit Public Index, available at https://publicindex. sccourts.org/Greenville/PublicIndex/PISearch.aspx (search by case numbers listed above) (last visited Nov. 27, 2023).
See 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.'”).
STANDARD OF REVIEW
Plaintiff is a prisoner under the definition in 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 though Plaintiff has prepaid the full filing fee, this Court is still charged with screening 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.
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, 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 Complaint and Plaintiff is not required to plead facts sufficient to prove his case as an evidentiary matter, 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. Balt. City State's Attorneys Office, 767 F.3d 379, 388 (4th Cir. 2014).
DISCUSSION
This action is subject to summary dismissal for the reasons below.
No State Action
Plaintiff purportedly filed the Amended Complaint 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).
Plaintiff appears to contend that Defendants violated his civil rights. As noted, 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). Defendants are each private individuals, and Plaintiff has not alleged facts showing that either Defendant is a state actor for purposes of this § 1983 action. Specifically, Defendants are both attorneys who have represented Plaintiff in the state court on the criminal charges currently pending against him. [Doc. 18 at 6-10.] However, Plaintiff has not alleged facts showing that Defendants are state actors. It is not clear whether Defendants are privately retained or court-appointed attorneys. In any case, even “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.” Polk Cnty. v. Dodson, 454 U.S. 312, 317, 325 (1981); 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). Plaintiff has not made any allegations to plausibly show that Defendants exceeded the “traditional functions as counsel.” Polk Cnty., 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, Plaintiff's claims against Defendants are not proper in this § 1983 action, and they are both 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).
No Jurisdiction
Additionally, the Court lacks jurisdiction over this action. As explained above, Plaintiff's claims cannot be asserted in a civil rights action brought under 42 U.S.C. § 1983 because he does not sue a state actor. Liberally construed, the Amended Complaint appears to assert state tort law claims against Defendants in addition to his purported § 1983 claims. Nevertheless, Plaintiff has failed to allege facts showing this Court has subject matter jurisdiction over any such claims.
Jurisdiction Generally
Federal courts are courts of limited jurisdiction, “constrained to exercise only the authority conferred by Article III of the Constitution and affirmatively granted by federal statute.” In re Bulldog Trucking, Inc., 147 F.3d 347, 352 (4th Cir. 1998). Accordingly, a federal court is required to determine if a valid basis for its jurisdiction exists “and to dismiss the action if no such ground appears.” Id.; see also Fed.R.Civ.P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”). There is no presumption that a federal court has jurisdiction over a case, Pinkley, Inc. v. City of Frederick, 191 F.3d 394, 399 (4th Cir. 1999), and a plaintiff must allege facts essential to show jurisdiction in his pleadings, McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936); see also Dracos v. Hellenic Lines, Ltd., 762 F.2d 348, 350 (4th Cir. 1985) (“[P]laintiffs must affirmatively plead the jurisdiction of the federal court.”). As such, Federal Rule of Civil Procedure 8(a)(1) requires that a complaint provide “a short and plain statement of the grounds for the court's jurisdiction[.]”
Generally, federal district courts have original jurisdiction over two types of cases, referred to as (1) federal question cases, pursuant to 28 U.S.C. § 1331, and (2) diversity cases, pursuant to 28 U.S.C. § 1332. As to cases involving a federal question, § 1331 provides that the “district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. “[F]ederal question jurisdiction exists ‘only when a federal question is presented on the face of the plaintiff's properly-pleaded complaint.'” Burbage v. Richburg, 417 F.Supp.2d 746, 749 (D.S.C. 2006) (quoting Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987)). Diversity jurisdiction, on the other hand, requires (1) complete diversity of the parties and (2) an amount in controversy in excess of $75,000.00. See 28 U.S.C. § 1332(a). The parties are completely diverse only if no party on one side is a citizen of the same state as any party on the other side. See Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373-74 (1978).
Here, Plaintiff has failed to allege facts to demonstrate a valid basis for this Court to exercise jurisdiction under either federal question or diversity.
Federal Question Jurisdiction
First, Plaintiff has failed to identify, and the Court is unable to glean from the Amended Complaint, any federal question. Although Plaintiff brought this action under 42 U.S.C. § 1983 to purportedly vindicate violations of his constitutional rights, his allegations concerning his constitutional claims are without merit for the reasons stated above and any claim to relief for a civil rights violation fails to provide a basis for federal question jurisdiction. Specifically, Plaintiff has failed to allege facts demonstrating any state action. Plaintiff's claims premised on any civil rights violations are therefore frivolous, without merit, and subject to dismissal.
Further, Plaintiff has failed to cite to any other federal statute, treaty, or constitutional provision that is at issue in this case or that would provide any avenue of relief. Although Plaintiff cites to various constitutional provisions under which he claims his rights arise, he premises the claims in his Amended Complaint against Defendants for purported legal malpractice, negligence, breach of fiduciary duties, and other claims sounding in state tort law. [Doc. 18 at 6-10.] However, claims arising under state tort law do not support federal question jurisdiction. Thus, there is no basis for this Court to find jurisdiction premised on a federal question.
Diversity Jurisdiction
Likewise, Plaintiff has failed to satisfy the requirements of the diversity statute. As noted, complete diversity of the parties means that no party on one side may be a citizen of the same state as any party on the other side. See Owen Equip. & Erection Co., 437 U.S. at 372-74. Here, it appears that Plaintiff and both Defendants are citizens of South Carolina. [Doc. 1 at 2-3.] Accordingly, complete diversity between the parties does not exist, and the Court lacks diversity jurisdiction over this action. See Navy Fed. Credit Union v. LTD Fin. Servs., LP, 972 F.3d 344, 352 (4th Cir. 2020) (explaining that “no plaintiff may share a citizenship with any defendant”).
Therefore, the Court lacks jurisdiction under either federal question or diversity, and the Amended Complaint is subject to summary dismissal.
The Court's conclusion that it lacks jurisdiction over Plaintiff's claims does not mean that he is without a remedy. For example, Plaintiff may be able to bring his state law claims in the appropriate state court having jurisdiction.
CONCLUSION AND RECOMMENDATION
In light of the foregoing, it is recommended that the District Court DISMISS this action pursuant to 28 U.S.C.§ 1915A without further leave to amend and without issuance and service of process.
As Plaintiff has been afforded an opportunity to file an Amended Complaint but failed to correct his pleading deficiencies, the undersigned recommends that this action be dismissed without further 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).