Wilcox v. Kennedy et al

Filing 16

ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant, and denying 12 Motion to Amend/Correct. The Plaintiff's complaint is dismissed without prejudice and without issuance and service of process for failure to state a claim. Signed by Honorable Sol Blatt, Jr on 2/15/2012.(cwhi, )

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

Vernon Michael Wilcox,
Plaintiff,

v.
Patricia Ann Kennedy;
Berk[e]ley County Public
Defender[']s Office,

)
)
)
)
)
)
)

Civil Action No. 2:11-3455-SB

ORDER

)
)
)

This matter is before the Court upon Plaintiff Vernon Wilcox's pro se complaint filed
pursuant to 42 U.S.C. § 1983.

In his complaint, the Plaintiff alleges that he was

incarcerated on July 18, 2010, and that the Defendants have violated his Sixth Amendment
right to a speedy trial and his Fourteenth Amendment right to due process of law.
Specifically, the Plaintiff claims that Defendant Kennedy failed to file a speedy trial motion
in his state-court criminal case, despite the Plaintiff having requested at least ten times
since September 15, 2010, that Kennedy file such a motion.

The Plaintiff seeks

$5,000,000.00 from the Berkeley County Public Defender's Office and $500,000.00 from
Kennedy.
The record contains a report and recommendation ("R & R") of a United States
Magistrate Judge, which was made in accordance with 28 U.S.C. §636(b)(1)(B) and the
Local Civil Rules for this District.

In the R&R, which was filed on January 4, 2012,

Magistrate Judge Bristow Marchant recommends that this Court dismiss the Plaintiffs
complaint without prejudice and without issuance and service of process. Specifically, the
Magistrate Judge recommended that the Court dismiss the Plaintiffs complaint because
Defendants Kennedy and the Berkeley County Public Defender's Office were not acting

"under color of state law" during Kennedy's representation of the Plaintiff, as required to
state a claim under 42 U.S.C. § 1983. See Polk County v. Dodson, 454 U.S. 312, 325
(1981) ("[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.").
Attached to the R&R was a notice advising the Plaintiff of his right to file written
objections to the R&R within fourteen days of being served with a copy ofthat report. See
28 U.S.C. § 636(b)(1). On January 17, 2012, the Plaintiff filed objections to the R&R as
well as a "motion to amend relief."
In

his

objections,

the

Plaintiff disagrees with

the

Magistrate Judge's

recommendation and asserts that the Defendants did act "under the color of state law."
And in his motion to amend, the Plaintiff requests that the Court recommend that Kennedy
be relieved as counsel in his criminal case, and he asks that all evidence, statements, and
correspondence be turned over to him.
Ultimately, after review, the Court agrees with the Magistrate Judge that the
Plaintiff's complaint should be dismissed without prejudice and without issuance and
service of process for failure to state a claim. As the Magistrate Judge noted, to state a
claim pursuant to section 1983, a plaintiff must allege 1) the violation of a constitutional
right 2) by a person acting under color of state law. Here, the Plaintiff's complaint does not
allege that the Defendants engaged in some sort of conspiracy, and the Court agrees with
the Magistrate Judge that Kennedy was not acting under color of state law when
performing the functions related to her representation of the Plaintiff. Moreover, with
respect to the Plaintiff's motion to amend relief, the Court notes that it simply does not have
the authority to recommend to the state court that Kennedy be relieved as the Plaintiff's

counsel and that all records be turned over to him.
Based on the foregoing, it is hereby
ORDERED that the R&R (Entry 9) is adopted and incorporated; the Plaintiffs

objections (Entry 11) are overruled; the Plaintiffs motion to amend (Entry 12) is denied;
and the Plaintiff's complaint is dismissed without prejudice and without issuance and
service of process for failure to state a claim.
AND IT IS SO ORDERED.

,..­

-/..!-,

February
2012
Charleston, South Carolina

3