Martin v. Burton

Filing 15

ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant and dismissing the Plaintiff's complaint without prejudice and without the issuance of process. Signed by Honorable R Bryan Harwell on 6/26/2012.(cwhi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
William F. Martin, Jr.,

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Plaintiff,
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v.
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Ross Alan Burton, Public Defender )
Attorney of the Commission Office )
of Indigent Defense Sixteenth
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Judicial Circuit to be sued In this
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Individual and Official Capacity,
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Defendant.
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Civil Action No.: 0:12-cv-01088-RBH

ORDER

This matter is before the Court after the issuance of the Report and Recommendation
(“R&R”) of United States Magistrate Judge Bristow Marchant.1 Plaintiff William F. Martin Jr.,
proceeding pro se, filed this action against Defendant Ross Alan Burton.

In the R&R, the

Magistrate Judge recommends that the Court dismiss Plaintiff’s complaint without prejudice and
without the issuance of process.
Factual Background and Procedural History
Plaintiff filed this action on April 24, 2012, alleging the following facts. Compl., ECF No. 1.
On May 3, 2007, Plaintiff entered a guilty plea in circuit court in York County, South Carolina, to
multiple charges, including the charge of possession of marijuana with intent to distribute, third
offense. Defendant, Plaintiff’s appointed public defender, allegedly advised Plaintiff to enter a

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In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02 (D.S.C.), this matter was
referred to the Magistrate Judge for pretrial handling. The Magistrate Judge’s review of Plaintiff’s
complaint was conducted pursuant to the screening provisions of 28 U.S.C. § 1915(e)(2). The
Court is mindful of its duty to liberally construe the pleadings of pro se litigants. See Gordon v.
Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978); but see Beaudett v. City of Hampton, 775 F.2d 1274,
1278 (4th Cir. 1985).

guilty plea and informed Plaintiff that he could receive up to twenty-four years’ imprisonment if the
case proceeded to trial. Opting to proceed with the guilty plea, Plaintiff was sentenced to eight
years’ imprisonment for the “no-parole” offense, which required him to serve at least 85% of his
sentence. Plaintiff complains that Defendant provided ineffective legal advice and failed to make
proper objections to the solicitor’s false statements during the sentencing hearing, thus, violating his
“duty to protect his client in a Court of Law.” He further alleges that Defendant conspired with the
solicitor to have Plaintiff erroneously sentenced based, in part, on a 1993 arson charge the solicitor
failed to convict him of.
Plaintiff's sentence was later vacated in a post-conviction relief hearing in October 2008 on
the grounds that the charge he pleaded guilty to was his second, not his third, offense. Plaintiff was
subsequently released on bond and electronically monitored—a cost of $400 per month to
Plaintiff—for seventeen months.

The circuit court modified Plaintiff's bond conditions in

November 2008, releasing him from electronic monitoring. On March 7, 2012, Plaintiff was resentenced to twenty-six months’ imprisonment and given credit for time served. He is no longer
incarcerated. Plaintiff claims that Defendant’s legal assistance was so ineffective that it constitutes
negligence, fraud, conspiracy, and legal malpractice. Plaintiff seeks monetary damages.
The Magistrate Judge issued his R&R on May 10, 2012, R&R, ECF. No. 11, and Plaintiff
filed timely objections to the R&R, Pl.’s Objs., ECF No. 13.
Standard of Review
The Magistrate Judge makes only a recommendation to the Court. The recommendation has
no presumptive weight. The responsibility to make a final determination remains with the Court.
Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court is charged with making a de novo
determination of those portions of the R&R to which specific objection is made, and the Court may

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accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or
recommit the matter to him with instructions. 28 U.S.C. § 636(b)(1).
The right to de novo review may be waived by the failure to file timely objections. Orpiano
v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). The Court need not conduct a de novo review when a
party makes only “general and conclusory objections that do not direct the [C]ourt to a specific
error in the [M]agistrate’s proposed findings and recommendations.” Id. Moreover, in the absence
of objections to the R&R, the Court is not required to give any explanation for adopting the
recommendation. Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). However, in the absence of
objections, the Court must “ ‘satisfy itself that there is no clear error on the face of the record in
order to accept the recommendation.’ ” Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d
310, 315 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
Discussion
The Magistrate Judge recommends dismissing Plaintiff’s complaint without prejudice and
without the issuance of process. First, the Magistrate Judge, interpreting Plaintiff’s first claim as
one pursuant to 42 U.S.C. § 1983, concludes Plaintiff fails to state a claim under that section
because public defenders, as a matter of law, do not act “under the color of state law when
performing traditional functions as counsel.” R&R 3. Second, the Magistrate Judge, liberally
construing Plaintiff’s complaint, concludes he fails to state a claim for conspiracy—to the extent he
claims a violation under 42 U.S.C. § 1985. Finally, dismissal was recommended on the basis that
this action, Plaintiff’s third against Defendant, is duplicative and thus frivolous. R&R 3-5.
Plaintiff objects to each of the Magistrate Judge’s bases for dismissal. First, he characterizes
his § 1983 claim as an ineffective assistance of counsel claim and emphasizes that his claim is not
grounded on the fact his attorney was a public defender who was employed by the state. Second, he

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contends he has proof of a conspiracy, pointing to the fact that his attorney assisted the solicitor in
York County to hold him accountable for a 1993 arson charge of which his acquitted. Finally, he
argues his claim is not frivolous because his previous two dismissed claims, referred to by the
Magistrate Judge, were dismissed without prejudice. Pl.’s Objs.
As noted above, the Court must conduct a de novo review of each portion of the R&R that
was properly objected to.

The Court agrees with the conclusion that Plaintiff’s ineffective

assistance of counsel claim is not cognizable as a constitutional tort under § 1983 in light of Polk
County v. Dodson, 454 U.S. 312 (1981). There is no indication, with perhaps the exception of
Plaintiff’s conspiracy allegation, that Defendant exceeded the “traditional functions as counsel.” Id.
at 325. In fact, even in his objection, Plaintiff argues his claim has more to do with Defendant’s
“shoddy defense.” Pl.’s Objs. 3. Any remaining legal malpractice claims, assuming the statute of
limitations has not run, are more suited for state court because no diversity of citizenship exists to
warrant federal jurisdiction over state claims.
The Magistrate Judge, as a matter of caution, recommends addressing Plaintiff’s allegation
that Defendant conspired with the solicitor. Construing the claim as a potential § 1985 claim, the
Magistrate Judge concludes that it should be dismissed on the grounds that it was not pled with any
specificity and that Plaintiff did not allege any discriminatory motive of Defendant. R&R 4. The
Court sees no error in the Magistrate Judge’s recommendation for dismissing Plaintiff’s claims
without prejudice to the extent they allege a conspiracy under § 1985. The Court need not construe
Plaintiff’s conclusory use of the word “conspiracy” so liberally as to read into it the elements of a §
1985 conspiracy against his civil rights. See Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th
Cir. 1985).

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As for Plaintiff’s objection to the Magistrate Judge’s conclusion that his complaint should be
dismissed as frivolous, the Court finds no error. Taking judicial notice of Plaintiff’s previous
filings, the Court notes Plaintiff has alleged ineffective assistance of counsel against Defendant
multiple times in the past. See Order, Martin v. Brackett, et al., No. 9:09-cv-00792-RBH (D.S.C.
Nov. 13, 2009); Order, Martin v. Brackett, et al., No. 0:08-cv-00853-GRA (D.S.C. June 12, 2008).
Plaintiff is correct to point out that each complaint was dismissed without prejudice for failure to
state a cognizable claim under § 1983. Pl.’s Objs. 3. However, Plaintiff must be mindful that, under
the facts he has alleged time after time, no ineffective assistance of counsel claim, as a matter of
law, will merit relief for the sole reason that Defendant never acted under color of state law, a
requirement for a § 1983 claim. To that end, this action is frivolous and subject to summary
Regardless, the legal sufficiency of Plaintiff’s

dismissal under 28 U.S.C. § 1915(e)(2)(B)(i).

allegations were addressed to the extent that dismissal based on frivolousness was unnecessary.
The Court, therefore, finds no error in the Magistrate Judge’s R&R.
Conclusion
The Court has thoroughly reviewed the entire record, including the R&R, objections to the
R&R, and applicable law. For the reasons stated above and by the Magistrate Judge, the Court
hereby overrules Plaintiff’s objections and adopts the R&R of the Magistrate Judge.
IT IS THEREFORE ORDERED that Plaintiff's complaint be DISMISSED without
prejudice and without the issuance of process.
IT IS SO ORDERED.
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
June 26, 2012
Florence, South Carolina
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