Tate v. Rutherford

Filing 13

ORDER adopting 10 Report and Recommendation and dismissing Plaintiff's 1 Complaint without prejudice and without issuance and service of process. Signed by Honorable Margaret B Seymour on 6/14/2017. (mwal)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Phyllis Tate,

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Plaintiff,
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vs.
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Atty. J. Todd Rutherford,
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Defendant.
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____________________________________)

C/A No. 3:17-1124-MBS

ORDER AND OPINION

On May 1, 2017, Plaintiff Phyllis Tate, proceeding pro se and in forma pauperis, brought this
action, alleging that she was denied her constitutional right to effective counsel. Plaintiff alleges that
she retained Defendant J. Todd Rutherford after she was arrested for driving under the influence in
2015. Plaintiff alleges that she paid Defendant a retainer but that he did not take steps to represent
her, such as contacting witnesses. Plaintiff seeks monetary damages.
In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C., this matter was referred
to United States Magistrate Judge Shiva V. Hodges for pretrial handling. The Magistrate Judge
reviewed the allegations of the complaint and determined that the court lacks subject matter
jurisdiction. The Magistrate Judge noted that there exists no diversity of citizenship between
Plaintiff and Defendant, and that the complaint fails to allege an amount in controversy in excess of
$75,000. Thus, the court lacks diversity jurisdiction under 28 U.S.C. § 1332(a). The Magistrate
Judge also found that Plaintiff failed to state a claim under 42 U.S.C. § 1983 because Defendant is
not a state actor. Therefore the court lacks federal question jurisdiction under 28 U.S.C. § 1331.
Accordingly, the Magistrate Judge recommended that the within action be summarily dismissed

without prejudice and without issuance and service of process. Plaintiff filed objections to the
Report and Recommendation on June 2, 2017.
The Magistrate Judge makes only a recommendation to this court. The recommendation has
no presumptive weight. The responsibility for making a final determination remains with this court.
Mathews v. Weber, 423 U.S. 261, 270 (1976). This court may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the Magistrate Judge. 28 U.S.C. § 636(b)(1).
This court may also receive further evidence or recommit the matter to the Magistrate Judge with
instructions. Id.

This court is obligated to conduct a de novo review of every portion of the

Magistrate Judge’s report to which objections have been filed. Id. However, the district court need
not conduct a de novo review when a party makes only general and conclusory objections that do
not direct the court to a specific error in the Magistrate Judge’s proposed findings and
recommendations. Orpiano v. Johnson, 687 F.2d 44, 47-48 (4th Cir. 1982).
Plaintiff’s objections read, in part, as follows:
Federal Law provides that it is a crime to violate the Rights of the People under the
Color-of-Law. You can be held personally liable for violating the Personal Liberties
of the People and for committing Fraud.
Attempting to cause a person to do something by telling that such action is required
by law, which it is not required by, law is not only Fraud, it is a felony and is
Treason. Law being the American Constitution pursuant to Article VI, of as well as
the USC Codes, which are in harmony with the American Constitution of 1791. At
Title 18 U.S.C. 241, 242, 245 all parties acting under the “Color of Law” can be held
accountable under charges of Conspiracy to deprive Rights, Treason, Kidnapping,
etc....
ECF No. 12.
To the extent Plaintiff objects to the Magistrate Judge’s finding that the court lacks federal
question jurisdiction under § 1983, the Supreme Court has explained that “[t]he purpose of § 1983
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is to deter state actors from using the badge of their authority to deprive individuals of their federally
guaranteed rights and to provide relief to victims if such deterrence fails.” Wyatt v. Cole, 504 U.S.
158, 161 (1992)(citing Carey v. Piphus, 435 U.S. 247, 254-57 (1978)). Defendant, as a private
individual, is not subject to the prohibitions of § 1983. Further, as the Magistrate Judge properly
observed, the court lacks diversity jurisdiction to hear any state law claim Plaintiff wishes to pursue
against Defendant.
The court has throughly reviewed the record and Report and Recommendation. The court
discerns no error in the Magistrate Judge’s analysis. Plaintiff’s objections are without merit.
For the reasons stated, the court adopts the Report and Recommendation and incorporates
it herein by reference. Plaintiff’s complaint is dismissed without prejudice and without issuance and
service of process.
IT IS SO ORDERED.

/s/ Margaret B. Seymour
Senior United States District Judge

Columbia, South Carolina
June 14, 2017

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