Fordham v. Smith et al

Filing 5

REPORT AND RECOMMENDATIONS recommending 1 Complaint filed by Antrell Jermaine Fordham, be dismissed without prejudice and without issuance and service of process. Objections to R&R due by 4/6/2006. Signed by Judge Bruce Howe Hendricks on 3/20/06. (kmca)

Fordham v. Smith et al

Doc. 5

8:06-cv-00807-CMC

Date Filed 03/20/2006

Entry Number 5

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UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA

Antrell Jermaine Fordham, # 262332, Plaintiff, vs. W . Ted Smith; and Charleston County Public Defender's Office, Defendants. _______________________________________

) C/A No. 8:06-807-CMC-BHH ) ) ) ) Report and Recommendation ) ) ) ) ) )

The plaintiff, Antrell Jermaine Fordham ("Plaintiff"), proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983.1 Plaintiff is an inmate at Lee Correctional Institution, a facility of the South Carolina Department of Corrections (SCDC), and files this action in forma pauperis under 28 U.S.C. § 1915. The complaint names as defendants the attorney and Public Defender's Office involved in representing Plaintiff in a state criminal proceeding. Plaintiff claims violation of his constitutional rights by Defendant Smith's withdrawal of an appeal in Plaintiff's criminal case. Plaintiff seeks monetary damages, as well as injunctive relief. The complaint should be dismissed for failure to state a claim upon which relief may be granted. Pro Se and In Forma Pauperis Review Under established local procedure in this judicial district, a careful review has been made of the pro se complaint pursuant to the procedural provisions of 28 U.S.C. § 1915; 28 U.S.C. § 1915A; and the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat.

Pursuant to the provisions of 28 U.S.C. §636(b)(1)(B), and Local Rule 73.02(B)(2)(d), D.S.C., the undersigned is authorized to review such complaints for relief and submit findings and recommendations to the District Court.

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Dockets.Justia.com

8:06-cv-00807-CMC

Date Filed 03/20/2006

Entry Number 5

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1321 (1996). This review has been conducted in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Maryland House of Correction, 64 F.3d 951 (4th Cir. 1995) (en banc), cert. denied, 516 U.S. 1177 (1996); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983). The complaint herein has been filed pursuant to 28 U.S.C. § 1915, which permits an indigent litigant to commence an action in federal court without prepaying the administrative costs of proceeding with the lawsuit. To protect against possible abuses of this privilege, the statute allows a district court to dismiss the case upon a finding that the action "fails to state a claim on which relief may be granted" or is "frivolous or malicious." § 1915(e)(2)(B)(i), (ii). This Court is required to liberally construe pro se documents, Estelle v. Gamble, 429 U.S. 97 (1976), holding them to a less stringent standard than those drafted by attorneys, Hughes v. Rowe, 449 U.S. 9 (1980) (per curiam). Even under this less stringent standard, however, the pro se complaint is subject to summary dismissal. The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so, but a district court may not rewrite a petition to include claims that were never presented, Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999), or construct the plaintiff's legal arguments for him, Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993), or "conjure up questions never squarely presented" to the court, Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985), cert. denied, 475 U.S. 1088 (1986). The requirement of liberal construction

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does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Department of Social Services, 901 F.2d 387, (4th Cir. 1990). Discussion The complaint names as defendants the attorney and Public Defender's Office involved in representing Plaintiff in a state criminal proceeding. The Defendants are entitled to summary dismissal because they have not acted under color of state law. In order to state a cause of action under 42 U.S.C. § 1983, Plaintiff must allege that the Defendants deprived Plaintiff of a federal right, and did so under color of state law. Gomez v. Toledo, 446 U.S. 635, 640 (1980). An attorney, whether retained, court-appointed, or a public defender, as in this case, does not act under color of state law, which is a jurisdictional prerequisite for any civil action brought under 42 U.S.C. § 1983. See Deas v. Potts, 547 F.2d 800 (4th Cir. 1976) (private attorney); Hall v. Quillen, 631 F.2d 1154, 1155-1156 & nn. 2-3 (4th Cir. 1980), cert. denied, 454 U.S. 1141 (1982) (court-appointed attorney); Polk County v. Dodson, 454 U.S. 312, 317-324 & nn. 8-16 (1981) (public defender). In Hall v. Quillen, supra, the district court had disposed of the case against a physician and a court-appointed attorney on grounds of immunity. Although affirming the district court's order, the Court of Appeals indicated that lower courts should first determine whether state action occurred: [I]mmunity as a defense only becomes a relevant issue in a case such as this if the court has already determined affirmatively that the action of the defendant represented state action. This is so because state action is an essential preliminary condition to § 1983 jurisdiction, and a failure to find state action disposes of such an action adversely to the plaintiff.

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Hall v. Quillen, 631 F.2d at 1155 (citations omitted). See also Lugar v. Edmondson Oil Co., 457 U.S. 922, 936 (1982) ("Careful adherence to the 'state action' requirement . . . also avoids imposing on the State, its agencies or officials, responsibility for conduct for which they cannot fairly be blamed."); Burton v. Wilmington Parking Auth., 365 U.S. 715, 721 (1961).2 The complaint should be dismissed for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Recommendation Accordingly, it is recommended that the District Court dismiss the complaint in the above-captioned case without prejudice and without issuance and service of process. See Denton v. Hernandez, supra; Neitzke v. Williams, supra; Haines v. Kerner, supra; Brown v. Briscoe, 998 F.2d 201, 202-204 & n. * (4th Cir. 1993); Boyce v. Alizaduh, supra; Todd v. Baskerville, supra, 712 F.2d at 74; 28 U.S.C. § 1915A [as soon as possible after docketing, district courts should review prisoner cases to determine whether they are subject to summary dismissal]. The plaintiff's attention is directed to the important notice on the next page. Respectfully Submitted, S/Bruce H. Hendricks United States Magistrate Judge March 20, 2006 Greenville, South Carolina

Burton involved the Equal Protection Clause of the Fourteenth Amendment, not 4 2 U.S.C. § 1983. However, federal courts have uniformly held that conduct which c o n s titu te s state action under the Fourteenth Amendment also constitutes action u n d e r color of state law, insofar as suits under 42 U.S.C. § 1983 are concerned. W e s t v. Atkins, 487 U.S. 42, 48-49 (1988) (collecting cases). 4

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Notice of Right to File Objections to Magistrate Judge's "Report and Recommendation" & The Serious Consequences of a Failure to Do So
T h e plaintiff is hereby notified that any objections to the attached Report and Recommendation (or Order and R e c o m m e n d a t io n ) must be filed within ten (10) days of the date of its service. 28 U.S.C. § 636 and Fed. R. Civ. P. 7 2 ( b ) . The time calculation of this ten-day period excludes weekends and holidays and provides for an additional three d a y s for filing by mail. Fed. R. Civ. P. 6. Based thereon, this Report and Recommendation, any objections thereto, and th e case file will be delivered to a United States District Judge fourteen (14) days after this Report and R e c o m m e n d a t i o n is filed. Advance Coating Technology, Inc. v. LEP Chemical, Ltd., 142 F.R.D. 91, 94 & n. 3 ( S .D .N .Y . 1992). A magistrate judge makes only a recommendation, and the authority to make a final determination i n this case rests with the United States District Judge. See Mathews v. W e b e r , 423 U.S. 261, 270-271 (1976); Estrada v . W itk o w s k i, 816 F. Supp. 408, 410 (D.S.C. 1993). D u r in g the ten-day period, but not thereafter, a party must file with the Clerk of Court specific, written o b j e c tio n s to the Report and Recommendation, if he or she wishes the United States District Judge to consider any o b j e c t i o n s . Any written objections must specifically identify the portions of the Report and Recommendation to w h i c h objections are made and the basis for such objections. Failure to file written objections shall constitute a w a i v e r of a party's right to further judicial review, including appellate review, if the recommendation is accepted by the U n i t e d States District Judge. See United States v. Schronce, 727 F.2d 91, 94 & n. 4 (4th Cir.), cert. denied, 467 U.S. 1 2 0 8 (1984); W r i g h t v. Collins, 766 F.2d 841, 845-847 & nn. 1-3 (4th Cir. 1985). Moreover, if a party files specific o b j e c tio n s to a portion of a magistrate judge's Report and Recommendation, but does not file specific objections to other p o r tio n s of the Report and Recommendation, that party waives appellate review of the portions of the magistrate judge's R e p o r t and Recommendation to which he or she did not object. In other words, a party's failure to object to one issue i n a magistrate judge's Report and Recommendation precludes that party from subsequently raising that issue on appeal, e v e n if objections are filed on other issues. Howard v. Secretary of HHS, 932 F.2d 505, 508-509 (6th Cir. 1991). See a ls o Praylow v. Martin, 761 F.2d 179, 180 n. 1 (4th Cir.) (party precluded from raising on appeal factual issue to which it did not object in the district court), cert. denied, 474 U.S. 1009 (1985). In Howard, supra, the Court stated that g e n e r a l, non-specific objections are not sufficient:
A general objection to the entirety of the [magistrate judge's] report has the same effects as would a failure t o object. The district court's attention is not focused on any specific issues for review, thereby making the initial reference t o the [magistrate judge] useless. * * * This duplication of time and effort wastes judicial resources rather than saving t he m, and runs contrary to the purposes of the Magistrates Act. * * * We would hardly countenance an appellant's brief s im ply objecting to the district court's determination without explaining the source of the error.

A c c o r d Lockert v. Faulkner, 843 F.2d 1015, 1017-1019 (7th Cir. 1988), where the Court held that the appellant, who p r o c e e d e d pro se in the district court, was barred from raising issues on appeal that he did not specifically raise in his o b j e c t i o n s to the district court:
J ust as a complaint stating only 'I complain' states no claim, an objection stating only 'I object' preserves no issue for r e v i e w . * * * A district judge should not have to guess what arguments an objecting party depends on when reviewing a [magistrate judge's] report.

S e e also Branch v. Martin, 886 F.2d 1043, 1046 (8th Cir. 1989) ("no de novo review if objections are untimely or g e n e r a l" ) , which involved a pro se litigant; and Goney v. Clark, 749 F.2d 5, 7 n. 1 (3rd Cir. 1984) ("plaintiff's objections la c k e d the specificity to trigger de novo review"). This notice, hereby, apprises the plaintiff of the consequences of a f a i l u r e to file specific, written objections. See W r ig h t v. Collins, supra; Small v. Secretary of HHS, 892 F.2d 15, 16 (2nd C ir . 1989). Filing by mail pursuant to Fed. R. Civ. P. 5 may be accomplished by mailing objections addressed as follows:

Larry W. Propes, Clerk United States District Court Post Office Box 10768 Greenville, South Carolina 29603