Williams v. Fleming

Filing 20

ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant. Accordingly, Plaintiff's Complaint is DISMISSED without prejudice and without issuance of service of process. Plaintiff may pursue a legal malpractice claim against Defendant, if he desires to do so, in state court. Signed by Honorable Richard M Gergel on 11/6/2014.(cwhi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Christopher Williams,
Plaintiff,

v.
Corey H. Fleming, counsel on record,
Defendant

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16114 NO'J -b P \: 21
No: 9:14-3514-RMG

ORDER

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This matter is before the Court on the Report and Recommendation ("R&R") of the
Magistrate Judge recommending that the Court dismiss the Plaintiff's Complaint (Dkt No. 17).
Plaintiff has not filed an objection to the Magistrate Judge's recommendation. For the reasons
set forth below, the Court agrees and ADOPTS the R&R as the order of the Court. Accordingly,
Plaintiffs Complaint is DISMISSED without prejudice and without issuance of service of
process.

Legal Standard
The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and the responsibility for making a final determination remains with
this Court. Matthews v. Weber, 423 US. 261, 270-71 (1976). This Court is charged with
making a de novo determination of those portions of the R&R to which specific objection is
made. Here, however, because no objection has been made, this Court "must 'only satisfy itself
that there is no clear error on the face of the record in order to accept the recommendation.'"

Diamond v. Colonial Life & Ace. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting Fed. R.
Civ. P 72 advisory committee note). Moreover, in the absence of specific objections to the R&R,

the Court need not give any explanation for adopting the Magistrate Judge's analysis and
recommendation. See Camby v. Davis, 718 F.2d 198,200 (4th Cir. 1983).

Discussion
On October 30, 2012, Plaintiff entered a guilty plea to Use of Communications FacilityControlled Substance-Distribution. (Dkt. No. 17). On June 14,2013, Plaintiff was sentenced
and subsequently, on June 18,2013, judgment was entered sentencing Plaintiff to thirty-seven
(37) months imprisonment. (Dkt. No. 1). In his complaint, Plaintiff alleges that he advised
Defendant, his private criminal defense attorney, to file a direct appeal in the case and that
Defendant failed to do so. (Id.). Thereafter, Plaintiff filed his own pro se Notice of Appeal in
January 2014. (Id. ). On July 28, 2014, the Fourth Circuit Court of Appeals affirmed the
decision of the District Court. (Dkt. No. 17).
Plaintiff now brings this pro se action against his attorney requesting one million dollars
in damages or, in the alternative, a trial by jury. (Dkt. No.1). However, Plaintiff does not state
the basis for his claims. Consequently, the Court construes Plaintiff's pleadings as an attempt to
assert a constitutional claim pursuant to § 1983 or Bivens v. Six Unknown Named Agents of

Federal Bureau olNarcotics, 403 U.S. 388, 397 (1971).1
First, Plaintiff's claims brought pursuant to § 1983 or Bivens are subject to summary
dismissal because there has been a clear failure in the pleadings to allege facts which set forth a
cognizable claim in a federal district court. See Weller v. Dep 't ofSoc. Servs., 901 F. 2d 387 (4th
Cir. 1990); Ashcroft v. Iqbal, 556 U.S. 662 (2009).

I Bivens established a direct cause of action under the United States Constitution against federal
officials for the violation of federal constitutional rights.

2

To state a cause of action under § 1983 or Bivens a plaintiff must allege that 1) "some
person has deprived him of a federal right" and 2) "the person who has deprived him of that right
acted under color of state law or [federal] law." Gomez v. Toledo, 446 U.S. 635,640 (1980).2
In the present case, PlaintitT's pleadings have failed to put forth any allegations indicating
that Defendant is associated with the state or federal government. Thus, Plaintiff's pleadings do
not meet the threshold pleading requirement necessary to bring a § 1983 or Bivens action.
Additionally, Plaintiff's Complaint may be liberally construed to assert state law causes
of action for either negligence or malpractice. However, this Court does not have subject matter
jurisdiction to hear these state law claims.
The diversity statute, 28 U.S.C. § 1332(a), requires complete diversity of parties and an
amount in controversy in excess of seventy-five thousand dollars ($75,000.00) in order for a
federal court to take jurisdiction over a case. Here, it is uncontested that Defendant is a resident
of South Carolina. Additionally, although Plaintiff is incarcerated in Florida, he remains
domiciled, for purposes of the diversity statute, in South Carolina. See Roberts v. lvlorchower,
956 F.2d 1163 (4th Cir. 1992) ("a prisoner's domicile is presumed to be where he was domiciled
prior to incarceration. ") (citing Polakoif'v. Henderson, 370 F .Supp. 690 (N.D .Ga.1973), affd,
488 F.2d 977 (5th Cir.1974)). Furthermore, Plaintiff's Answers to the Court's Special
Interrogatories affirm that he is a resident of South Carolina (Dkt. No. 12). Therefore, this Court
does not have jurisdiction to hear Plaintiff's state law claims because Plaintiff and Defendant are
both South Carolina residents, and thus, diversity of citizenship is lacking.
Conclusion

A Bivens claim is analogous to a claim brought against state officials under § 1983, and thus,
case law involving a § 1983 claims is applicable in a Bivens action. Harlmv v. Fitzgerald, 457
U.S. 800, 818 n. 30 (1982).
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The District Court ADOPTS the Magistrate Judge's R&R (Dkt. No. 17) as the order of
the Court. Accordingly, Plaintiff's Complaint is DISMISSED without prejudice and without
issuance of service of process. Plaintiff may pursue a legal malpractice claim against Defendant,

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if he desires to do so, in state court.
AN» IT IS SO ORDERE»

Richard M. Gergel
United States District Court Judge
November { , 2014
Charleston, South Carolina

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