Bryant v. Stone

Filing 94

MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 07/03/2018. Copy mailed to Bryant.(tjoh, )

L

JUL - 3

[Uj

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Richmond Division

CLERK,WCHMONaVA_____
U.S. DISTRICT COURT

JOHN A. BRYANT, JR.,

Plaintiff,
V.

Civil Action No. 3:18CV17

TAYLOR B. STONE,
Defendant.

MEMORANDUM OPINION

John A. Bryant, Jr., a federal inmate proceeding pro se and
in forma pauperis, has filed this diversity action.

The matter

is before the Court on the Motion to Dismiss filed by Taylor B.
Stone.

(EOF No.

84.)

For

the

reasons

set forth

below,

the

tests

the

Motion to Dismiss will be granted.

I.

"A

motion

sufficiency

of

to

a

PRELIMINARY REVIEW

dismiss

under

Rule

complaint; importantly,

12(b)(6)

it

does

not resolve

contests surrounding the facts, the merits of a claim, or the

applicability of defenses."

Republican Party of N.C. v. Martin,

980 F.2d 943, 952 (4th Cir. 1992) (citing 5A Charles A. Wright &
Arthur R. Miller, Federal Practice and Procedure § 1356 (1990)).

In considering a motion to dismiss for failure to state a claim,

a plaintiff s well-pleaded allegations are taken as true and the

complaint

is

viewed

in

the

light

most

favorable

to

the

plaintiff.

Mylan Labs., Inc. v. Matkari^ 7 F.3d 1130, 1134 (4th

Cir. 1993); see also Martin, 980 F.2d at 952.

applies

only

to

factual

considering

a

identifying

pleadings

conclusions,

motion

are

allegations,

to

dismiss

that,

not

entitled

to

however,

can

because

This principle

are

"a

to

choose

they

the

and

begin

no

assumption

court

more
of

by

than

truth."

Ashcroft V. Iqbal, 556 U.S. 662, 679 (2009).

The

Federal

Rules

of

Civil

Procedure

"require[]

only

'a

short and plain statement of the claim showing that the pleader
is entitled to relief,' in order to

^give the defendant fair

notice of what the . . . claim is and the grounds upon which it
rests.'"

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(second alteration in original) (quoting Conley v. Gibson, 355
U.S. 41, 47 (1957)).

Plaintiffs cannot satisfy this standard

with complaints containing only "labels and conclusions" or a
"formulaic

recitation

of

Id. (citations omitted).

the

elements

of

a

cause

of

action."

Instead, a plaintiff must allege facts

sufficient "to raise a right to relief above the speculative

level,"

id.

"plausible

(citation

on

its

"conceivable."

Id.

omitted),

face,"

id.

at

stating

570,

a

claim

rather

that

than

is

merely

"A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the

misconduct alleged."

Iqbal, 556 U.S. at 678 (citing Bell Atl.

Corp., 550 U.S. at 556).

survive

In order for a claim or complaint to

dismissal for failure to state

a

claim, the

plaintiff

must "allege facts sufficient to state all the elements of [his
or] her claim."

Bass v. E.I. DuPont de Nemours & Co., 324 F.3d

761, 765 (4th Cir. 2003) (citing Dickson v. Microsoft Corp., 309
F.3d 193, 213 (4th Cir. 2002); lodice v. United States, 289 F.3d

270, 281 (4th Cir. 2002)).

Lastly,

construes pro se complaints,

while the Court liberally

Gordon

v. Leeke, 574

F.2d 1147,

1151 (4th Cir. 1978), it will not act as the inmate's advocate

and
that

develop,
the

sua

inmate

complaint.

sponte,
failed

statutory

to clearly

and
raise

constitutional
on

the

face

claims
of

his

See Brock v. Carroll, 107 F.3d 241, 243 (4th Cir.

1997) (Luttig, J., concurring); Beaudett v. City of Hampton, 775
F.2d 1274, 1278 (4th Cir. 1985).

II.

A.

PROCEDURAL BACKGROUND

Bryant's Criminal Proceedings

The Court's records reflect that:

On October 6, 2009, Bryant was charged in a three
count indictment with conspiracy to distribute and
possess with intent to distribute fifty grams or more
of cocaine base (Count One), distribution of cocaine
base
(Count
Two)
and
possession
with
intent to
distribute more than five grams of cocaine base (Count
Three.

(Indictment 1-2, ECF No. 1.)

On September 2, 2010, Bryant was charged in a
criminal information with conspiracy to distribute and
possess with intent to distribute five grams or more
of

cocaine

16.)

base.

(Criminal

Information

1,

ECF

No.

On that same day, Bryant agreed to plead guilty

to the above charge.
The Plea Agreement advised
Bryant that he faced a sentence of between five and
forty years of imprisonment.
(Plea Agreement 1, ECF
20.) As part of the Plea Agreement, Bryant stipulated
that had the matter proceeded to trial, the United
States could have proven the following facts beyond a
reasonable doubt:

1.
Starting in early 2005 and continuing
through August 14, 2009, . . . JOHN BRYANT
conspired with others to distribute and
possess with the intent to distribute more
than
5
grams
of
cocaine
base.
In
furtherance of this conspiracy, JOHN BRYANT
would obtain wholesale quantities of cocaine
base in weights ranging from one to four and
a half ounces, which he would break down
into smaller quantities and distribute to
users

and

low-level

dealers

of

crack

cocaine.
During
the
course
of
the
conspiracy, JOHN BRYANT distributed over 500

grams but less than 1.5 kilograms of cocaine
base, commonly known as "crack."
2.
On or about July 30, 2009, JOHN BRYANT
distributed 0.246 gram [sic] of cocaine
base, commonly known as "crack," to a person
secretly working for law enforcement.
(Statement of Facts 1, ECF No. 21.)

United States v. Bryant, No. 3:09CR347, 2015 WL 13450972, at *2
(E.D.

Va.

2015).

Mar.

3,

2015), aff^ d,

620

F.

App'x

168

(4th

Cir.

"On February 4, 2011, the Court sentenced Bryant to 169

months of imprisonment."

Id. at *3.

By Memorandum Opinion and

Order entered on March 3, 2015, the Court denied a 28 U.S.C.

§ 2255 motion filed by Bryant challenging the above conviction
and sentence.

B.

Id. at *10.

The Current Civil Action

Bryant filed the present diversity action in the United
States

District

Court

for

the

District

of

South

Carolina.

Bryant names Taylor B. Stone, his trial counsel from the above-

described criminal proceedings, as the defendant.
1.)

had

(ECF 18-2, at

The District Court in South Carolina concluded that Bryant

alleged

sufficient

jurisdiction,

Bryant

2734090,

*2

at

transferred

the

v.

facts
Stone,

(D.S.C.
matter

No.

June

to

to

this

demonstrate

diversity

0:16-cv-3927-RBH,

26,

2017),

Court.

and

Bryant

v.

2017

WL

ultimately
Stone,

No.

0:16-CV-03927-RBH, 2018 WL 321550, at *1 (D.S.C. Jan. 8, 2018).
In

his

Amended

Complaint,

Bryant

alleges

that

Stone

was

negligent in failing to discover facts about Bryant's case and
failed to follow procedures that would have protected Bryant's
rights under the Plea Agreement.

(ECF No. 18-2, at 3.)

Bryant

further alleges that despite his instructions to do so. Stone

failed to move withdraw from the plea agreement, and failed to

file an appeal of Bryant's conviction and sentence.

(Id. at 5.)

Bryant contends that such actions amount to "legal malpractice,"
and deprived Bryant of "due process of law and the right to
counsel."

(Id. at 1.)

Ill.

"To

Virginia

state

a

law,

plaintiff

attorney-client

cause

ANALYSIS

of action for

must

relationship

show

giving

legal malpractice

(1)

the

rise to

existence

under

of

an

a duty; (2) the

breach of that duty by the attorney; and (3) damages proximately

caused by the breach,"
(E.D.

Va.

Kelly,

2007)

P.C., 568

Jones v. Link^ 493 F. Supp. 2d 765, 771

(citing
S.E.2d

Rutter

v.

693 (Va,

Jones,

Blechman,

2002)),

Woltz

Furthermore,

in

&
a

legal malpractice action arising from a criminal case, where the

plaintiff

contends

his

attorney's

negligence

resulted

in

an

erroneous conviction or a longer sentence, he must also allege

"that

he

(quoting

has

obtained

Taylor

v,

postconviction

Davis,

576

S,E,2d

relief,"

445,

447

Id,

(Va,

at

769

2003));

Astrop V, Brunswick, No, 3:06CV640-HEH, 2007 WL 6080449, at *2
(E,D,

Va,

omitted)

Apr,

26,

("Virginia

2007)(alterations
requires

an

in

inmate

original)

bringing

a

(citation
claim

for

legal malpractice arising out of his conviction or sentence to

'alleg[e] and prov[e] as a part of his cause of action that he
has obtained post-conviction relief,"), aff'd, 251 F, App'x 227
(4th Cir, 2007),

Bryant has not obtained any post-conviction

relief with respect to his federal sentence.
failed to state

Thus, Bryant has

a claim for legal malpractice.

Accordingly,

Bryant's legal malpractice claim will be dismissed.
Furthermore,

as

Bryant

well

knows,

federal civil rights action against Stone,

he

cannot

bring

a

See Bryant v, Colaw,

3:17CV459, ECF No, 9, at 4-5 (E,D, Va, Dec, 29, 2017) ("Private

attorneys and public defenders do not act under color of federal
authority

when

they

represent

defendants

in

criminal

proceedings," (citing Polk Cty, v, Dodson, 454 U,S, 312, 325

(1981); Cox V. Hellerstein, 685 F.2d 1098, 1099 (9th Cir. 1982);

Bagguley v. Cogburn, Nos. 89-7102, 89-7103, 1990 WL 139323, at

*1 (4th Cir. Sept. 26, 1990))).

Private parties are not subject

to liability under § 1983 for alleged constitutional violations,
Rendell-Baker

showing

that

actors,"

v.

Kohn,

the

457

private

U.S.

830,

837

party "acted

id. at 838 n.6.

in

(1982),

concert

absent

with

a

state

Bryant fails to identify any state

law that would permit him to sue Stone, a private actor, for

allegedly

violating

Accordingly,

Bryant

Bryant's

has

failed

constitutional

to

state

a

viable

(ECF

No.

93)

rights.
claim

for

relief.

Stone's

Bryant's
denied.

Motion

Motion
The

to

for

action

Dismiss

Pro

Bono

will

be

Counsel

will

(ECF

dismissed.

No.

The

be

granted.

89)

will

be

Clerk

will

be

directed to note the disposition of the action for purposes of
28 U.S.C. § 1915(g).

The

Clerk

is

directed

to

send

a

copy

of

the

Memorandum

Opinion to Mr. Bryant.

(\

/s/

Date:

Robert E. Payne

RichmoncV Virginia

Senior United States District Judge