Thomas v. Richland County Public Defender et al

Filing 17

ORDER RULING ON REPORT AND RECOMMENDATIONS. The court finds the Magistrate Judges recommendation to be proper and incorporates the Report herein by reference. Accordingly, this action is dismissed without prejudice and without issuance and service of process. Signed by Honorable Joseph F Anderson, Jr on 04/29/2011. (dsto, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA

Peter L. Thomas,
Plaintiff,
v.
Richland County Public Defender; James
Hunter May; and J. Clarke Newton,
Defendants.
____________________________________

)
)
)
)
)
)
)
)
)
)
)
)

C/A No.: 4:11-176-JFA-TER

ORDER

The pro se plaintiff, Peter L. Thomas, brings this action pursuant to 42 U.S.C. § 1983
claiming violations of his constitutional rights with regard to effective assistance of counsel
and choice of counsel in his pending state criminal proceedings. He seeks monetary and
injunctive relief.
The Magistrate Judge assigned to this action 1 has prepared a comprehensive Report
and Recommendation wherein he suggests that this court should dismiss the complaint for
failure to state a claim upon which relief may be granted. The Report sets forth in detail the
relevant facts and standards of law on this matter, and the court incorporates such without
a recitation and without a hearing.
The plaintiff was advised of his right to submit objections to the Report and

1

The Magistrate Judge’s review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule
73.02. The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive
weight, and the responsibility to make a final determination remains with the court. Mathews v. Weber, 423 U.S. 261
(1976). The court is charged with making a de novo determination of those portions of the Report to which specific
objection is made and the court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate
Judge, or recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).

1

Recommendation which was filed on March 16, 2011. Plaintiff filed timely objections to
the Report which this court will review de novo.
Plaintiff’s complaint centers around the reappointment, allegedly after a mass
reassignment, of his public defender, without plaintiff’s consent and despite the plaintiff’s
request to represent himself in his ongoing state criminal proceedings.
The Magistrate Judge correctly notes in his Report that defendants May and Newton
do not act under color of state law when performing traditional functions as counsel in the
plaintiff’s state criminal proceedings. Because these defendants are not “state actors,” the
plaintiff cannot meet the jurisdictional requirement of § 1983 that an alleged violation of a
constitutional right was violated by a person acting under the color of state law. As such, the
plaintiff cannot state a claim against the defendants.
In his objections to the Report, the plaintiff restates his claim that the Richland County
Public Defender cannot constitutionally remove the first assigned public defender to the
indigent defendant (attorney defendant May) and, without the express consent of the client
(plaintiff Thomas), appoint another public defender (defendant Newton) in his place.
Plaintiff also denies that he is attempting to sue the RCPD on behalf of other inmates,
contending that he was merely pointing out that the reassignment of his public defenders was
not an isolated incident and that RCPD initiated a “new policy of mass reassignment.”
In an addendum to his objections, the plaintiff indicates that defendant Newton visited
him in prison telling him that defendant May had resigned from the RCPD and that
defendant Newton acknowledged that the plaintiff should be allowed to self-represent

2

himself in his pending state criminals proceeding. The plaintiff appears to suggest that these
and other parties, including Immigration and Customs Enforcement official, have “wheels
set in motion to obstruct due process and to clandestinely remove the plaintiff from the Alvin
S. Glenn Detention Center and to extrajudicially remove him from the United States” to
Jamaica.2 The plaintiff’s objections are repetitive and conclusory at best, and are thus
overruled.
After a careful review of the record, the applicable law, the Report and
Recommendation, and the objections thereto, the court finds the Magistrate Judge’s
recommendation to be proper and incorporates the Report herein by reference. Accordingly,
this action is dismissed without prejudice and without issuance and service of process.
IT IS SO ORDERED.

April 29, 2011
Columbia, South Carolina

Joseph F. Anderson, Jr.
United States District Judge

2

In his objections, the plaintiff discusses his related civil action before this court against the
Richland County Clerk of Court’s office (C/A No. 4:11-367-JFA-TER) wherein he alleges that he has been
denied self-representation and access to the courts. In that action, which is the subject of a separate Report
and Recommendation, the Magistrate Judge opines that this court should not equitably interfere with state
criminal proceedings and plaintiff’s complaint in that action does not present extraordinary circumstances
that justify interference from federal court. This court may take judicial notice of the plaintiff’s prior or
pending actions. Aloe Creme Laboratories, Inc. v. Francine Co., 425 F.2d 1295, 1296 (5th Cir.
1970)(district court may take judicial notice of its own files and records).

3