Snyder v. Benford

Filing 3

MEMORANDUM OPINION AND ORDER directing Plaintiff, within 45 days of the date of this Order, to pay the filing fee or submit to the Court an Application to Proceed Without Prepayment of Fees and Costs; notifying Plaintiff that no action will be taken on his complaint until the fee is paid or the application is filed, and failure to pay the fee or submit the application shall result in a recommendation that the complaint be dismissed; directing Plaintiff to amend his complaint within 45 days of th e date of this Order and cure the various deficiencies in pleading as indicated herein; Plaintiff is given notice that a failure to amend the complaint as ordered shall result in a recommendation that the complaint be dismissed for failure to state a claim compensable at law. Signed by Magistrate Judge Cheryl A. Eifert on 3/11/2015. (cc: Plaintiff) (mkw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
JOHN ASHLEY SNYDER,
Plaintiff,
v.

Case No. 3:15-cv-02269

F. LEE BENFORD,
Defendant.

MEMORANDUM OPINION AND ORDER
Pending before the Court is Plaintiff’s pro se complaint seeking money damages
from Defendant for alleged embezzlement and due process violations, and seeking
dismissal of criminal charges. The undersigned notes that Plaintiff has not paid the
$400 filing fee, nor has he filed an Application to Proceed Without Prepayment of Fees
and Costs. Therefore, Plaintiff is hereby ORDERED, within forty-five (45) days of
the date of this Order, to pay the filing fee or submit to the Court an Application to
Proceed Without Prepayment of Fees and Costs. Plaintiff is notified that no action
will be taken on his complaint until the fee is paid or the application is filed, and a
failure to pay the fee or submit the application shall result in a recommendation that the
complaint be dismissed.
In keeping with 28 U.S.C. § 1915(e)(2), the undersigned has conducted a
preliminary review of Plaintiff’s complaint to determine if the action is frivolous, fails to
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state a claim upon which relief may be granted, or seeks monetary relief from a
defendant who is immune from such relief. Although pro se complaints, such as the one
filed in this case, must be liberally construed to allow the development of potentially
meritorious claims, the court may not rewrite the pleading to include claims that were
never presented, Parker v. Champion, 148 F.3d 1219, 1222 (10th Cir. 1998), develop the
plaintiff’s legal theories 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). At the same time, to achieve justice, the
court may allow a pro se plaintiff the opportunity to amend his complaint in order to
correct deficiencies in the pleading. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.
1978).
Plaintiff’s complaint alleges the following:
1. That Plaintiff hired Defendant, an attorney, to represent Plaintiff in
a criminal matter;
2. That Defendant embezzled $85,000 from Plaintiff and also violated
Plaintiff’s due process rights; and
3. That Defendant admitted his wrongdoing and apologized for it.
Plaintiff seeks compensatory damages in the amount of $15,000,000 and “dismissal of
criminal offenses from the above defendant mentioned.” Clearly, these allegations do
not state a valid cause of action or establish jurisdiction in the United States District
Court.
Accordingly, along with paying the filing fee or submitting an Application to
Proceed Without Prepayment of Fees and Costs, Plaintiff is ORDERED to amend his
complaint within forty-five (45) days of the date of this Order and cure the various
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deficiencies in pleading as indicated below:
1.

Plaintiff shall state in the complaint his full name and address, and the full

name and address of the Defendant (including office and residence address), so that the
Court can determine whether there is diversity of citizenship, if that becomes important
to the issue of jurisdiction. If Plaintiff entered into a written representation agreement
with Defendant, Plaintiff shall state so in his complaint. In addition, Plaintiff shall
provide additional factual allegations regarding the alleged embezzlement in order for
the Court to understand Plaintiff’s cause of action.
2.

Plaintiff shall elaborate on how Defendant allegedly violated Plaintiff’s due

process rights. Plaintiff must bear in mind that in order to state a cause of action for a
constitutional violation under 42 U.S.C. § 1983 (or the Bivens Doctrine), he must show
that Defendant was acting under color of state law (or was a federal official) when he
allegedly deprived Plaintiff of a federally protected civil right, privilege, or immunity.
Perrin v. Nicholson, 2010 U.S. Dist. LEXIS 105121, at *4 (D.S.C. 2010); American Mfr.
Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50-52 (1999). It is a matter of well-settled law
that an attorney, whether retained, court-appointed, or a public defender, does not act
under color of state law (or is not a federal actor) when performing the traditional
functions of a lawyer and, therefore, is not amenable to suit under § 1983 or Bivens.
Deas v. Potts, 547 F.2d 800 (4th Cir. 1976); Hall v. Quillen, 631 F.2d 1154, 1155-56, n. 23 (4th Cir. 1980) (stating that court-appointed counsel does not act under color of state
law for § 1983 purposes); Polk County v. Dodson, 454 U.S. 312, 317-24, 102 S.Ct. 445,
70 L.Ed.2d 509 (1981) (stating that public defenders representing defendants in
criminal proceedings do not act under color of state law for § 1983 purposes); Story v.
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Kopko, C.A. No. 3:09-2893-PMD, 2010 WL 430831, *3 (D.S.C. Feb. 5, 2010) (Federal
criminal defense attorney is not a federal actor and thus not subject to suit under
Bivens.). Consequently, if Plaintiff’s claims against Defendant arise from his legal
representation, then it is unlikely that Plaintiff can state a valid constitutional claim in
this Court.
3.

Plaintiff asks the Court to dismiss “criminal offenses” against him. The

undersigned is unable to tell (a) whether there is a pending criminal action against
Plaintiff; or (b) whether Plaintiff has already been convicted of a criminal charge and is
seeking to have his conviction or sentence set aside. Plaintiff shall clarify this issue.
Plaintiff is advised that if he is seeking to set aside a state court conviction or sentence,
he is required to file a separate petition for a writ of habeas corpus under 28 U.S.C. §
2254 and must exhaust his state remedies prior to seeking federal review.
Plaintiff is hereby given notice that a failure to amend the complaint as
ordered shall result in a recommendation that the complaint be dismissed
for failure to state a claim compensable at law.
The Clerk is instructed to provide a copy of this Order to Plaintiff.
ENTERED: March 11, 2015

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