Opinion
Case No. 2:19-cv-2544-MGL-MGB
10-10-2019
Earl Vennings, Jr., Plaintiff, v. Ryan Harris Sigal, Esquire, and Amelia Leeke, Esquire, Defendants.
REPORT AND RECOMMENDATION
This is a civil action filed by someone representing himself. Under Local Civil Rule 73.02(B)(2)(e) (D.S.C.), pretrial proceedings in this action have been referred to the assigned United States Magistrate Judge. Under 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), the undersigned is authorized to review the filings and make a recommendation to the District Judge. For the following reasons, the undersigned recommends summarily dismissing this case.
ALLEGATIONS IN THE AMENDED COMPLAINT
This case arises out of a 2016 traffic accident in which Vennings was involved. (Dkt. No. 12 at 5.) Vennings retained Defendants Leeke and Sigal to represent him in connection with the accident. (See id. at 4-6.) Vennings alleges Defendants pressured him into signing a settlement agreement that he did not want to sign. (Id. at 5-6.) He further alleges Defendants breached that contract, thereby violating his civil rights. (Id. at 4.) He is suing them for damages under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). (Id.)
PROCEDURAL HISTORY
Vennings filed this action on September 10, 2019. (See Dkt. No. 1.) He submitted with his complaint an application for leave to proceed in forma pauperis. (Dkt. No. 3.) The undersigned granted that application and then screened his complaint. See 28 U.S.C. § 1915(e)(2)(B). The undersigned then issued an order notifying Vennings his complaint failed to state any claims for which this Court could grant relief. (Dkt. No. 8.) After explaining the defects in the complaint, the undersigned gave Vennings leave to file an amended complaint that cured the original pleading's defects. (Id. at 2.) Vennings then filed the amended complaint at issue here. (Dkt. No. 12.) Thus, this matter is ripe for another round of initial screening.
DISCUSSION
The granting of in forma pauperis status in a case triggers a district court's duty to "sift out claims that Congress found not to warrant extended judicial treatment." Nagy v. FMC Butner, 376 F.3d 252, 256 (4th Cir. 2004). The Court must dismiss any cases that are frivolous or malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. § 1915(e)(2)(B).
As to failure to state a claim, a complaint filed in federal court "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)). When a court analyzes a complaint for facial plausibility, it must accept the factual allegations as true. Id. The court need not, however, accept as true the complaint's legal conclusions. Id. When "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations," Hishon v. King & Spalding, 467 U.S. 69, 73 (1984), the complaint fails to state a claim.
The undersigned has screened the amended complaint under § 1915(e)(2)(B), construing it liberally because Vennings is pro se. See, e.g., Erickson v. Pardus, 551 U.S. 89, 94 (2007). Nevertheless, even liberally construed, the amended complaint fails to state a claim for relief.
Vennings states he is suing Defendants under Bivens. (Dkt. No. 12 at 4.) Bivens allows people to sue federal officials in certain limited scenarios. However, Defendants are attorneys in private practice who represented Vennings in a civil personal injury matter. Private lawyers with no connection to the federal government cannot be sued under Bivens. Guess v. Hipps, No. 3:19-cv-400-CMC, 2019 WL 2360868, at *2 (D.S.C. May 28, 2019); Boyd v. Angelica Textile Servs., No. 3:12-cv-334-JFA-PJG, 2012 WL 2260235, at *3 (D.S.C. May 18, 2012), report and recommendation adopted, 2012 WL 2237167 (D.S.C. June 15, 2012), aff'd, 491 F. App'x 425 (4th Cir. 2012).
For that reason, the amended complaint is subject to summary dismissal. When a complaint's defects can be remedied through amendment, a district court should allow the plaintiff an opportunity to file an amended pleading that fixes the defects. Here, however, the Court has already provided Vennings an opportunity to do that. The amended complaint fails to state a claim not merely because of pleading defects, but also because well-established legal principles plainly bar his claims. Because "it is clear that further amendment to the complaint would not cure the complaint's defects," Mateen-El v. Bell, 747 F. App'x 169, 169 n.1 (4th Cir. 2019) (per curiam), the Court should dismiss this case with prejudice. See Guess, 2019 WL 2360868, at *2 (dismissing case with prejudice after plaintiff submitted amended complaint that did not cure original pleading's defects).
CONCLUSION
For the above reasons, the undersigned recommends summarily dismissing this case, with prejudice and without service of process.
IT IS SO RECOMMENDED. October 10, 2019
Charleston, South Carolina
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE
Plaintiff's attention is directed to the Important Notice on the next page.
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
Post Office Box 835
Charleston, South Carolina 29402
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).