Demorcy v. Shepard

Filing 13

ORDER RULING ON REPORT AND RECOMMENDATION adopting 9 Report and Recommendation. This action is dismissed without prejudice and without issuance of service of process. Signed by Honorable Joseph F Anderson, Jr on 7/30/2015. (gpre, )

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

Jamel Demorcy, #270803,

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Plaintiff,
vs.
Stacy Shepard,
Defendant.
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C/A No. 8:15-2044-JFA-JDA

ORDER

The pro se Plaintiff, Jamel Demorcy (“Plaintiff”), is an inmate with the South Carolina
Department of Corrections. Plaintiff brings this action pursuant to 42 U.S.C. § 1983, against his
attorney, Stacy Shepard, and alleges various violations of his constitutional rights.
Section 1983 is a procedural mechanism that creates a private right of action to
adjudicate violations of “rights, privileges, or immunities secured by the Constitution and laws.”
Rehburg v. Paulk, 132 S. Ct. 1497, 1501 (2012). A section 1983 claim must meet two essential
elements: (1) a violation of a right secured by the Constitution or laws of the United States (2)
the alleged violation was committed by a person acting under the color of state law. West v.
Atkins, 487 U.S. 42, 48 (1988).
In accordance with 28 U.S.C. § 636 (b) and Local Civil Rule 73.02(B)(2), D.S.C., the
case was referred to the Magistrate Judge for pretrial handling1. The Magistrate Judge assigned
to this action prepared a Report and Recommendation, which was entered on the docket on June

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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).
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8, 2015, and opines that the Plaintiff’s motion should be summarily dismissed for failure to state
a claim on which relief may be granted. [ECF No. 9].
The Plaintiff was advised of his right to file objections to the Report and
Recommendation. Id. The Plaintiff filed a timely objection on June 22, 2015, but did not
specifically object to issues within the Report and Recommendation. [ECF No. 11]. Rather, he
simply restated claims raised in his original complaint with regard to his attorney and the
allegations against the prison’s mailroom staff. Id.
If a party fails to properly object because the objections lack the requisite specificity, a
court need not conduct a de novo review. See Brooks v. James, No. 2:10-2010-MBS, 2011 WL
4543994, at *2 (D.S.C. Sept. 30, 2011); Veney v. Astrue, 539 F. Supp. 2d 841, 846 (W.D. Va.
2008). In the absence of a proper objection, a court must “only satisfy itself that there is no clear
error on the face of the record in order to accept the recommendation.” See Diamond v. Colonial
Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (internal citation omitted); see also
Thomas v. Arn, 474 U.S. 140, 148–53 (1985) (internal citations omitted).
I.

INEFFECTIVE COUNSEL
As the Magistrate Judge makes clear in their Report and Recommendation, Plaintiff’s

allegations against Stacy Shepard fail to state a claim upon which this Court can grant relief
because Shepard is not acting under color of state law.
While the assistance of counsel is guaranteed to a criminal defendant under the Sixth
Amendment, an attorney, whether publicly assigned or privately retained, does not act under
color of state law. See Vermont v. Brillon, 556 U.S. 81, 91 (2009) (“Unlike a prosecutor or the
court, assigned counsel ordinarily is not considered a state actor.”); Polk Cty. v. Dodson, 454
U.S. 312, 317–24 & nn.8–16 (1981) (public defender); Hall v. Quillen, 631 F.2d 1154, 1155–56
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& nn. 2–3 (4th Cir. 1980) (court-appointed attorney); Deas v. Potts, 547 F.2d 800 (4th Cir. 1976)
(private attorney). Because Shepard is not a state actor, the action does not meet both
jurisdictional prerequisites. Therefore, the Court agrees with the Magistrate Judge’s
recommendation and finds that Plaintiff’s claim against Shepard fails.
II.

DENIED ACCESS TO MAIL SERVICES
In his objection, Plaintiff elaborated upon his initial claim against prison officials by

providing the names of two mailroom staff members—thereby providing more specificity.
However, Plaintiff failed to provide additional details about what the staff members did to
impede his access to mailroom services.
Regardless, neither staff member is named as a defendant. As the Magistrate Judge
correctly stated, Plaintiff does not allege a proper defendant. See McClam v. Boone, No. CA
4:11-1174-TLW-JRM, 2011 WL 4943681, at *2 (D.S.C. Aug. 22, 2011) report and
recommendation adopted, No. CA 4:11-1174-TLW-JRM, 2011 WL 4943933 (D.S.C. Oct. 17,
2011) (holding that a plaintiff must show that the official personally caused, or played a role in
causing, the deprivation of a federal right). Further, Plaintiff’s objection does not provide detail
on the personal involvement of his attorney in this matter. Therefore, the statements are
insufficient to state any viable claim and the Court finds no fault with the Magistrate’s
determination.
III.

CONCLUSION

After reviewing the applicable laws, the record in this case, and the Report and
Recommendation, this Court finds the Magistrate Judge’s recommendation fairly and accurately
summarizes the facts and applies the correct principles of law. The Report and Recommendation
is adopted and incorporated herein by reference.
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Accordingly, this action is dismissed without prejudice and without issuance and service
of process.
IT IS SO ORDERED.

July 30, 2015
Columbia, South Carolina

Joseph F. Anderson, Jr.
United States District Judge

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