Opinion
C. A. 3:24-904-JD-KDW
04-25-2024
LavSern Justin Reed, Plaintiff, v. Richland County; Charles M Dulaney, Public Defender; and Byron Gibson, Solicitor, Defendants.
REPORT AND RECOMMENDATION
KAYMANI D. WEST, UNITED STATES MAGISTRATE JUDGE
Lavern Justin Reed (“Plaintiff”), proceeding pro se, filed this Amended Complaint alleging Richland County, Richland County public defender Charles Dulaney (“Dulaney”), and Richland County solicitor Byron Gibson (“Gibson”) violated his civil rights. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ. 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 judge. For the reasons that follow, the undersigned recommends the district judge dismiss Plaintiff's Amended Complaint.
I. Factual and Procedural Background
On March 27, 2024, the court issued an order notifying Plaintiff his Complaint was subject to summary dismissal because he failed to allege sufficient factual allegations to state a claim. ECF No. 13. The order further advised Plaintiff he had until April 9, 2024, to file an amended complaint or otherwise cure the identified deficiencies in his pleadings. Id. Plaintiff filed an Amended Complaint on April 15, 2024. ECF No. 18.
In his Amended Complaint, Plaintiff states he requested a preliminary hearing within ten days after his appearance at bond court and prior to his release on bond. ECF No. 18 at 5. Plaintiff says he was rearrested six months later. Id. Plaintiff alleges he did not have a preliminary hearing until seven months after he was rearrested. Id. Plaintiff says he was at Alvin S. Glenn Detention Center and Dulaney and Gibson were assigned to his case. Id. Plaintiff claims Dulaney provided him with ineffective assistance of counsel, and Gibson committed “barratry.” Id.
II. Discussion
A. Standard of Review
Plaintiff filed his Amended Complaint 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 a case upon a finding that the action fails to state a claim on which relief may be granted or is frivolous or malicious. 28 U.S.C. § 1915(e)(2)(B)(i), (ii). A finding of frivolity can be made where the complaint lacks an arguable basis either in law or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992). A claim based on a meritless legal theory may be dismissed sua sponte under 28 U.S.C. § 1915(e)(2)(B). See Neitzke v. Williams, 490 U.S. 319, 327 (1989).
Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). In evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). 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. Nevertheless, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts that set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
B. Analysis
A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Although the court must liberally construe a pro se complaint, the United States Supreme Court has made it clear that a plaintiff must do more than make conclusory statements to state a claim. See Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rather, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face, and the reviewing court need only accept as true the complaint's factual allegations, not its legal conclusions. Iqbal, 556 U.S. at 678-79. Plaintiff's complaint does not contain any factual allegations of constitutional wrongdoing or discriminatory actions attributable to Richland County. Accordingly, this Defendant should be summarily dismissed from this action.
Plaintiff's allegations that Attorney Dulaney provided him with ineffective assistance of counsel fails to state a claim. An attorney, whether retained, court-appointed, or a public defender, 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 Polk County v. Dodson, 454 U.S. 312, 317-24 & nn. 8-16 (1981) (public defender); Hallv. Quillen, 631 F.2d 1154, 1155-56 & nn. 2-3 (4th Cir.1980) (court-appointed attorney). Because Plaintiff's claims about the legal representation provided by Dulaney do not involve any state action, the undersigned recommends Plaintiff's claims against Dulaney be summarily dismissed.
Plaintiff also fails to allege sufficient facts to state a claim against Solicitor Gibson. The sole allegation against this Defendant is that Gibson committed barratry. ECF No. 18 at 5. South Carolina criminal code S.C. Code Ann. § 16-17-10 defines barratry, in relevant part, as any person who “[w]ilfully solicit[s] or incite[s] another to bring, prosecute or maintain an action” under a number of circumstances listed in subsections (1)(a) through (1)(e). Under South Carolina a common law, “[b]arratry (or barretry) is the offense of frequently exiting and stirring up quarrels and suits between other individuals.” Osprey, Inc. v. Cabana Ltd. P'ship, 532 S.E.2d 269, 273 (S.C. 2000). Any claim Plaintiff brings against Gibson for actions he has taken in association with the criminal prosecution of Plaintiff are barred by immunity. Prosecutors have absolute immunity for activities in or connected with judicial proceedings, such as a criminal trial, bond hearings, bail hearings, grand jury proceedings, and pretrial hearings. See Buckley v. Fitzsimmons, 509 U.S. 259 (1993); Dababnah v. Keller-Burnside, 208 F.3d 467 (4th Cir. 2000). The undersigned recommends Plaintiff's claims against Gibson be summarily dismissed.
III. Conclusion and Recommendation
By order issued on March 27, 2024, the undersigned gave Plaintiff an opportunity to correct the defects in his Complaint and further warned Plaintiff that if he failed to cure the identified deficiencies, the undersigned would recommend to the district court that the action be dismissed without leave for further amendment. As discussed herein, Plaintiff's Amended Complaint fails to correct the deficiencies, and like the original Complaint, fails to state a claim upon which relief can be granted. The undersigned recommends the district court dismiss this action without prejudice.
IT IS SO RECOMMENDED.