Green v. McClain

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA David Green, Jr., #300923-0355, ) C/A No.: 6:19-3270-TMC-SVH ) Plaintiff, ) ) vs. ) ORDER AND NOTICE ) Ward Benjamin McClain, Jr., ) ) Defendant. ) ) David Green, Jr. (“Plaintiff”), proceeding pro se and in forma pauperis, filed this complaint pursuant to 42 U.S.C. § 1983 against his former attorney Ward Benjamin McClain, Jr. (“Defendant”). Pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.), the undersigned is authorized to review such complaints for relief and submit findings and recommendations to the district judge. I. Factual and Procedural Background Plaintiff is a pretrial detainee at the Greenville County Detention Center. [ECF No. 1 at 2, 4]. He brings this action pursuant to 42 U.S.C. § 1983 against Defendant in his individual and official capacities. Plaintiff alleges he retained Defendant to represent him in a criminal matter on December 5, 2017. at 5. He claims he was unable to communicate with Defendant and Defendant failed to file a timely motion for his bond. He contends Defendant failed to obtain evidence and file motions at his request. at 6. He alleges Defendant did not properly defend him during a bond hearing. He claims Defendant moved to be relieved as counsel prior to the date of indictment. He maintains Defendant’s actions caused him to remain in detention for an extended period and prolonged his wait for trial. at 5–6. Plaintiff alleges he suffered mental and financial injury as a result of prolonged detention. at 7. He requests the court award him the cost of the retainer, lost wages, damages for loss of property as a result of detention, lost wages while being detained, compensation for time way from his family, and the costs of litigation. II. Discussion A. Standard of Review Plaintiff filed his 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. , 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). , 490 U.S. 319, 327 (1989). 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). Pro se complaints are held to a less stringent standard than those drafted by attorneys. , 574 F.2d 1147, 1151 (4th Cir. 1978). In evaluating a pro se complaint, the plaintiff’s allegations are assumed to be true. ., 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. 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. , 551 U.S. 89, 94 (2007). 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. ., 901 F.2d 387 , 390–91 (4th Cir. 1990). Although the court must liberally construe a pro se complaint, the United States Supreme Court has made it clear a plaintiff must do more than make conclusory statements to state a claim. , 556 U.S. 662 , 677‒78 (2009); , 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. , 556 U.S. at 678‒79. B. Analysis 1. Failure to State a Claim Pursuant to 42 U.S.C. § 1983 Plaintiff brings his case before the court pursuant to 42 U.S.C. § 1983 , alleging Defendant is a state or local official. [ECF No. 1 at 2]. He further alleges Defendant failed to provide effective legal representation in a criminal matter. at 5–6. To state a plausible claim for relief under 42 U.S.C. § 1983 , an aggrieved party must sufficiently allege that he was injured by “the deprivation of any [of his or her] rights, privileges, or immunities secured by the [United States] Constitution and laws” by a “person” acting “under color of state law.” 42 U.S.C. § 1983 ; 5 Charles Alan Wright & Arthur R. Miller, § 1230 (3d ed. 2014). For a party to be a state actor subject to suit under § 1983: First, the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible . . . . Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor. This may be because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State. , 457 U.S. 922, 937 (1982). A criminal defense attorney does not act under color of state law when performing traditional functions as legal counsel. , 454 U.S. 312 , 317–24 nn. 8–9, 12–14 (1981) (finding public defender does not act under color of state law); , 631 F.2d 1154 , 1155–56 nn. 2–3 (4th Cir. 1980) (finding court-appointed attorney does not act under color of state law); , 547 F.2d 800 (4th Cir. 1976) (finding private attorney does not act under color of state law). As Defendant is not a state actor amenable to suit under § 1983, Plaintiff’s complaint is subject to summary dismissal. 2. Absence of Jurisdiction Federal courts are courts of limited jurisdiction, “constrained to exercise only the authority conferred by Article III of the Constitution and affirmatively granted by federal statute.” , 147 F.3d 347 , 352 (4th Cir. 1998). Accordingly, a federal court is required, , to determine if a valid basis for its jurisdiction exists “and to dismiss the action if no such ground appears.” at 352; Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”). Although the absence of subject matter jurisdiction may be raised at any time during the case, determining jurisdiction at the outset of the litigation is the most efficient procedure. , 190 F.3d 648, 654 (4th Cir. 1999). There is no presumption that a federal court has jurisdiction over a case, , 191 F.3d 394 , 399 (4th Cir. 1999), and a plaintiff must allege facts essential to show jurisdiction in his pleadings. , 298 U.S. 178 , 189–90 (1936); , 762 F.2d 348, 350 (4th Cir. 1985) (“[P]laintiffs must affirmatively plead the jurisdiction of the federal court.”). To this end, Fed. R. Civ. P. 8(a)(1) requires the complaint provide “a short and plain statement of the grounds for the court’s jurisdiction[.]” When a complaint fails to include “an affirmative pleading of a jurisdictional basis[,] a federal court may find that it has jurisdiction if the facts supporting jurisdiction have been clearly pleaded.” , 191 F.3d at 399 (citations omitted). However, if the court, viewing the allegations in the light most favorable to a plaintiff, finds insufficient allegations in the pleadings, the court will lack subject matter jurisdiction. The two most commonly recognized and utilized bases for federal court jurisdiction are (1) diversity of citizenship pursuant to 28 U.S.C. § 1332 , and (2) federal question pursuant to 28 U.S.C. § 1331 . The allegations contained in this complaint do not fall within the scope of either form of the court’s limited jurisdiction. Therefore, Plaintiff’s complaint is subject to summary dismissal for lack of jurisdiction. a. Diversity The diversity statute, 28 U.S.C. § 1332 (a), requires complete diversity of parties and an amount in controversy in excess of $75,000. Complete diversity of parties in a case means no party on one side may be a citizen of the same state as any party on the other side. , 437 U.S. 365 , 373‒74 nn.13‒16 (1978). Plaintiff identifies himself and Defendant as citizens of South Carolina in the complaint. ECF No. 1 at 2. Therefore, Plaintiff’s complaint fails to demonstrate complete diversity of citizenship, rendering the court without diversity jurisdiction. b. Federal Question Second, Plaintiff fails to allege facts necessary to show that the case is one “arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331 . Plaintiff alleges no specific violation of the Constitution or federal statute, and no federal question jurisdiction is evident from the face of the complaint. Therefore, the court lacks federal question jurisdiction. NOTICE CONCERNING AMENDMENT Plaintiff may attempt to correct the defects in his complaint by filing an amended complaint by December 12, 2019, along with any appropriate service documents. Plaintiff is reminded an amended complaint replaces the original complaint and should be complete in itself. , 238 F.3d 567 , 572 (4th Cir. 2001) (“As a general rule, an amended pleading ordinarily supersedes the original and renders it of no legal effect.”) (citation and internal quotation marks omitted). If Plaintiff files an amended complaint, the undersigned will conduct screening of the amended complaint pursuant to 28 U.S.C. § 1915A. If Plaintiff fails to file an amended complaint or fails to cure the deficiencies identified above, the undersigned will recommend to the district court that the claims be dismissed without leave for further amendment. IT IS SO ORDERED. (Ye. V. adper November 21, 2019 Shiva V. Hodges Columbia, South Carolina United States Magistrate Judge