Young v. Posey

Filing 30

ORDER RULING ON REPORT AND RECOMMENDATION. Order adopting the magistrate judge's Report (ECF No. 17), granting Plaintiff's motion to amend (ECF Nos. 21 and 24), and DISMISSING Plaintiff's complaint, as amended, without prejudice Signed by Honorable Timothy M Cain on 9/13/2017. (kric, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Derrick Antron Young,
Plaintiff,
v.
Christopher Posey,
Defendant.

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Civil Action No. 6:16-2453-TMC

ORDER

Plaintiff Derrick Antron Young (“Plaintiff”), a state prisoner proceeding pro se and in
forma pauperis, filed this action pursuant to 42 U.S.C. § 1983. In accordance with 28 U.S.C. §
636(b)(1) and Local Civil Rule 73.02, D.S.C., this matter was referred to a magistrate judge for
pretrial handling.

Before the court is the magistrate judge’s Report and Recommendation

(“Report”), recommending that Plaintiff’s action be dismissed without prejudice. (ECF No. 17).
Plaintiff was advised of his right to file objections to the Report. (ECF No. 17 at 4), and he filed
timely objections. (ECF No. 22). Plaintiff also filed a motion to amend his complaint and a
proposed amended complaint. (ECF Nos. 21 and 24).
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 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 with instructions. 28 U.S.C. § 636(b)(1). However, the court need
not conduct a de novo review when a party makes only “general and conclusory objections that

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do not direct the court to a specific error in the magistrate’s proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence of a
timely filed, specific objection, the Magistrate Judge’s conclusions are reviewed only for clear
error. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
Christopher Posey (“Posey”), retained by Plaintiff, represented Plaintiff in a criminal
action.

Plaintiff's original complaint alleged that Posey violated Plaintiff’s Fourteenth

Amendment rights by giving false testimony at a post-conviction relief (“PCR”) hearing.
Plaintiff alleges that Posey denied knowledge of alleged video or audio recordings related to the
underlying claim. (ECF No. 1 at 3). The magistrate judge determined that this action is subject
to summary dismissal on the basis of witness immunity. See Mathis v. Goldberg, 538 F. App’x
310, 211 (4th Cir. 2013) (“[W]itnesses are absolutely immune from damages for their testimony
given in legal proceedings.” (citing Briscoe v. LaHue, 460 U.S. 325, 335–36 (1983))). Plaintiff
objects to the magistrate judge’s recommendation in his Report asserting that, pursuant to Tower
v. Glover, 467 U.S. 914 (1984), Posey is liable under § 1983 for intentional misconduct.
Ordinarily, a retained attorney, such as Posey in the present action, does not act under
color of state law when performing traditional functions as counsel. See Deas v. Potts, 547 F.2d
800 (4th Cir. 1976). See also Fleming v. Asbill, 42 F.3d 886, 890 (4th Cir. 1994) (“Private
lawyers do not act ‘under color of state law’ merely by making use of the state's court system”);
Hansen v. Ahlgrimm, 520 F.2d 768, 770 (7th Cir. 1975) (“It is established that a private attorney,
while participating in the trial of private state court action, is not acting under color of state
law”).
However, in Tower, the Supreme Court concluded that a private attorney does act under
color of state law within the meaning of § 1983 when engaged in a conspiracy with state officials
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to deprive the defendant of federal rights. 467 U.S. at 919–20. In order to establish a civil
conspiracy under § 1983, Plaintiff must allege sufficient factual allegations that would
“reasonably lead to the inference” that the co-conspirators “positively or tacitly came to a mutual
understanding to try to accomplish a common and unlawful plan” to deprive Plaintiff of a
constitutional right. Ruttenberg v. Jones, 283 F. App’x 121, 132 (4th Cir. 2008); Hinkle v. City
of Clarksburg, 81 F.3d 416, 421 (4th Cir. 1996); see also Dennis v. Sparks, 449 U.S. 24, 27
(1980) (A defendant may be acting under color of state law if he is “a willful participant in joint
action with the state or its agents.”).
In his original complaint, Plaintiff failed to sufficiently allege a conspiracy claim
involving his attorney. Plaintiff alleged no factual basis to support that Posey engaged in joint
action with any state or governmental employee or entity. Rather, he asserted in vague and
conclusory fashion that Posey conspired with the Attorney General’s office and possibly the
PCR judge to suppress the alleged video evidence. (ECF No. 1 at 5). The “naked assertion of a
conspiracy . . . without supporting operative facts establishing an agreement between the defense
attorney and the prosecutor or some other state actor, and a common plan to put the agreement
into effect, is insufficient to implicate § 1983.” Bishop v. Richardson, 852 F.2d 565, at *1 (4th
Cir. 1988) (unpublished table opinion) (quoting Phillips v. Mashburn, 746 F.2d 782, 785 (11th
Cir. 1984) (internal quotation marks omitted)); see also Albrecht v. Hamilton, No. 06-4313, 2007
WL 1217955 (3d Cir. Apr. 26, 2007) (dismissing a similar conspiracy claim). Plaintiff failed to
assert sufficient factual allegations to state a plausible claim that Posey acted under color of state
law by conspiring with the Attorney General’s office or the PCR judge to deprive Plaintiff of his
federal rights prior to or during the PCR process.

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After Plaintiff filed his objections, he filed a motion to amend his complaint (ECF No.
21) and a proposed amended complaint asserting additional facts and claims (ECF No. 24). A
motion to amend a pleading is governed by Federal Rule of Civil Procedure 15(a). Plaintiff is
allowed to amend his Complaint once as a matter of right pursuant to Rule 15(a)(1)(B). Rule
15(a)(1)(B) provides that “[a] party may amend its pleading once as a matter of course within . . .
if the pleading is one to which a responsive pleading is required, 21 days after service of a
responsive pleading.” Fed. R. Civ. P. 15(a)(1)(B). No responsive pleading has been filed in this
case. Accordingly, Plaintiff's Motion to Amend is allowed as a matter of course.
Having granted Plaintiff's Motion to Amend, the court must conduct a frivolity review of
Plaintiff's amended complaint. See 28 U.S.C. § 1915(e)(2); 28 U.S.C. § 1915A(a). Section 1915
provides that courts shall review complaints in which prisoners seek relief from a governmental
entity or officer, and “shall dismiss” any action that is “frivolous or malicious” or that “fails to
state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B); see also 28 U.S.C. §
1915A(b). Upon review, the court finds that Plaintiff's complaint, as amended, should be
dismissed pursuant to § 1915(e)(2).
A district court's review of a case for factual frivolousness under § 1915 is guided by the
Supreme Court's decision in Denton v. Hernandez, 504 U.S. 25, 32 (1992). When a plaintiff
proceeds in forma pauperis, § 1915 “gives courts the authority to pierce the veil of the
complaint's factual allegations[,] mean[ing] that a court is not bound, as it usually is when
making a determination based solely on the pleadings, to accept without question the truth of the
plaintiff's allegations.” Id. (internal quotation marks omitted). The “initial assessment of the in
forma pauperis plaintiff's factual allegations must be weighted in favor of the plaintiff,” id., and
“[a]n in forma pauperis complaint may not be dismissed . . . simply because the court finds the
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plaintiff's allegations unlikely.” Id. at 33. However, the district court is entrusted with the
discretion to dismiss the case for factual frivolousness “when the facts alleged rise to the level of
the irrational or the wholly incredible.” Id. “[A] court may dismiss a claim as factually frivolous
only when the claim alleges facts that are ‘clearly baseless', a category encompassing allegations
that are ‘fanciful,’ ‘fantastic,’ and ‘delusional.’ ” Id. at 32–33 (citations omitted) (quoting
Neitzke v. Williams, 490 U.S. 319, 325, 328 (1989)).
In his amended complaint, Plaintiff reasserts a § 1983 conspiracy claim pursuant to
Tower, 467 U.S. 914, with additional factual allegations and adds claims pursuant to 42 U.S.C. §
1985(3), and, under supplemental jurisdiction, he alleges claims for legal malpractice, perjury,
and violation of S.C. Code Ann. § 15-3-530(5). (ECF No. 24 at 1, 7). Plaintiff alleges that
Posey’s alleged false testimony at the PCR hearing constitutes an act in furtherance of a
conspiracy with the South Carolina Attorney General’s office to deprive Plaintiff of his
constitutional rights. (ECF No. 24 at 2, 4).
Insofar as Plaintiff asserts that Posey is liable for his testimony at the PCR hearing,
dismissal is warranted based on witness immunity. See Mathis v. Goldberg, 538 F. App’x 310,
211 (4th Cir. 2013) (“[W]itnesses are absolutely immune from damages for their testimony given
in legal proceedings.” (citing Briscoe, 460 U.S. at 335–36 (1983))); see also Green v. George,
C.A. No. 4:08-3501-TLW, 2009 WL 237521, at *2 (D.S.C. Jan. 29, 2009) (citing Hunt v.
Bennett, 17 F.3d 1263, 1267–68 (10th Cir. 1994) (holding prosecutor and police officer witness
absolutely immune from claim of conspiracy to present false testimony)).

In Briscoe, the

Supreme Court held that the immunity of a witness sued under § 1983 is even broader than
traditional witness immunity: “In such a case, a trial witness has absolute immunity with respect
to any claim based on the witness’ testimony. When a witness is sued because of his testimony .
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. . , ‘the claims of the individual must yield to the dictates of public policy.’” Rehberg v. Paulk,
566 U.S. 356 (2012) (quoting Briscoe, 460 U.S. at 332–33). The magistrate judge addressed
Posey’s immunity as a witness in his Report in regard to Plaintiff’s original complaint, and the
court agrees with the magistrate judge’s analysis and finds it applicable to his amended
complaint. Plaintiff’s amended complaint still alleges damages based upon Posey’s testimony as
a witness. Accordingly, Plaintiff has not alleged anything in his amended complaint that would
cause the court to alter its analysis. Thus, Plaintiff’s claim is subject to dismissal on the basis of
witness immunity.
Moreover, substantively, Plaintiff’s argument regarding the existence and perpetuation of
a conspiracy is conclusory and the amended complaint contains insufficient factual support for
this cause of action. Furthermore, the attachments to Plaintiff’s amended complaint also fail to
support the existence of the alleged video evidence, the falsity of Posey’s testimony, or the
existence of a conspiracy to hide video or audio evidence.1 For example, Plaintiff’s allegation
that Posey testified falsely about video evidence relates to a May 20, 2011 arrest (ECF Nos. 1
and 24-1 at 7), however, any evidence supporting the existence of video or audio evidence in
Plaintiff’s attachments relates to separate incidents from different dates (ECF No. 24-1 at 27, 28,
and 31). Further, the attached discovery response letter from the solicitor in the original state
court litigation fails to support his claim. (ECF Nos. 24 at 6 and 24-1 at 29–30). Thus, Plaintiff
fails to assert a cognizable claim of conspiracy pursuant to § 1983, see Bishop, 852 F.2d 565, at
*1 (unpublished table opinion) (“naked assertion of a conspiracy . . . without supporting

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Plaintiff’s attachments consist largely of documents from Plaintiff’s PCR action record. Young v. South Carolina,
C.A. No. 2013-CP-23-4575. The court notes that Plaintiff filed a habeas petition in this court on August 15, 2016,
which is currently pending. Young v. Warden of Evan Corr. Inst., C.A. No. 6:16-2849-TMC. The state court
documents, including the PCR record, were filed as an appendix to the respondent’s Return in Plaintiff’s pending
habeas case. (C.A. No. 6:16-2849-TMC, ECF Nos. 12-1 to 12-13).

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operative facts establishing an agreement between the defense attorney and the prosecutor or
some other state actor, and a common plan to put the agreement into effect, is insufficient to
implicate § 1983.” (quoting Phillips, 746 F.2d at 785 (internal quotation marks omitted)), or §
1985(3), see Simmons v. Poe, 47 F.3d 1370, 1377 (4th Cir. 1995) (conclusory allegations of a
conspiracy are insufficient to support a § 1985(3) claim).
Finally, liberally construing Plaintiff’s amended complaint, he may be alleging a claim of
legal malpractice against Posey.

However, the law is well settled that negligence is not

actionable under 42 U.S.C. § 1983. See Daniels v. Williams, 474 U.S. 327, 335–36 n. 3 (1986);
Davidson v. Cannon, 474 U.S. 344, 347–48 (1986); Pink v. Lester, 52 F.3d 73 (4th Cir. 1995)
(noting that Daniels bars an action under § 1983 for negligent conduct). While Plaintiff’s legal
malpractice claim would be actionable in state court, the federal claims in this case are
recommended for summary dismissal. Therefore, the court declines to exercise supplemental
jurisdiction over the state law causes of action raised in the complaint.

See 28 U.S.C. §

1367(c)(3); see also United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1996); Tigrett v. Rector
and Visitors of the Univ. of Va., 290 F.3d 620, 626 (4th Cir. 2002) (affirming district court’s
dismissal of state law claims when no federal claims remained in the case).
The court has thoroughly reviewed the Report of the magistrate judge and the filings in
this case. For the reasons set forth above and by the magistrate judge, the court overrules
Plaintiff’s objection and hereby adopts the Report (ECF No. 17) and incorporates it herein.
Further, Plaintiff’s motion to amend his complaint (ECF Nos. 21 and 24) is hereby GRANTED;
however, based on the foregoing, Plaintiff’s complaint, as amended, is DISMISSED without
prejudice.
IT IS SO ORDERED.
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s/Timothy M. Cain
United States District Judge
Anderson, South Carolina
September 13, 2017

NOTICE OF RIGHT TO APPEAL
The parties are hereby notified of the right to appeal this order pursuant to Rules 3 and 4
of the Federal Rules of Appellate Procedure.

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