Opinion
C/A No. 0:20-3300-RMG-PJG
11-04-2020
Brian K. Boulb, Plaintiff, v. Department of Corrections, of State of Ill.; Attorney Steve Welby, Panel Lawyer; Mr. Phelps, Warden Edgefield, Defendants.
REPORT AND RECOMMENDATION
Plaintiff Brian K. Boulb, a self-represented federal prisoner, indicates he brings this civil rights action pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unkown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiff files this action in forma pauperis under 28 U.S.C. § 1915 and § 1915A. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.). Having reviewed the Complaint in accordance with applicable law, the court concludes that it should be summarily dismissed without prejudice and without issuance and service of process.
I. Procedural Background
Plaintiff filed this action on a standard complaint form for pro se litigants who claim a violation of their civil rights (ECF No. 1), which includes an attached two-page letter that is not legible (ECF No. 1-1 at 1-2). Plaintiff claims he was denied a lawyer in his state criminal case in Illinois. He also claims that when he had a federal criminal case, his defense counsel failed to investigate the problems in his state court criminal case. Plaintiff indicates that this situation violated his right to due process and his unspecified rights under Sixth Amendment. Plaintiff indicates he brings this action pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unkown Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), against the State of Illinois, his former lawyer (Steve Welby), and the warden of the federal prison at which he is incarcerated (Phelps). Plaintiff seeks damages for unspecified injuries.
II. Discussion
A. Standard of Review
Under established local procedure in this judicial district, a careful review has been made of the pro se Complaint pursuant to the procedural provisions of the Prison Litigation Reform Act ("PLRA"), Pub. L. No. 104-134, 110 Stat. 1321 (1996), including 28 U.S.C. § 1915 and 28 U.S.C. § 1915A. The Complaint has been filed 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, and is also governed by 28 U.S.C. § 1915A, which requires the court to review a complaint filed by a prisoner that seeks redress from a governmental entity or officer or employee of a governmental entity. See McLean v. United States, 566 F.3d 391 (4th Cir. 2009). Section 1915A requires, and § 1915 allows, a district court to dismiss the case upon a finding that the action is frivolous, malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); 28 U.S.C. § 1915A(b).
To state a claim upon which relief can be granted, the plaintiff must do more than make mere conclusory statements. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. 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. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 570. The reviewing court need only accept as true the complaint's factual allegations, not its legal conclusions. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555.
This court is required to liberally construe pro se complaints, which are held to a less stringent standard than those drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007); King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016). Nonetheless, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990); see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (outlining pleading requirements under Rule 8 of the Federal Rules of Civil Procedure for "all civil actions").
B. Analysis
The court recommends this matter be summarily dismissed for failure to state a claim upon which relief can be granted. Initially, the court notes that the Complaint contains so few facts that it is impossible for the court to determine the nature of Plaintiff's claims as to any of the defendants. See Fed. R. Civ. P. 8 (requiring that a pleading contain "a short and plain statement of the claim showing that the pleader is entitled to relief"); Iqbal, 556 U.S. at 678 (stating Federal Rule of Civil Procedure 8 does not require detailed factual allegations, but it requires more than a plain accusation that the defendant unlawfully harmed the plaintiff, devoid of factual support). This is especially true for Defendant Phelps, against whom Plaintiff does not appear to provide any allegations or claims. See generally Iqbal, 556 U.S. at 676 (providing that a plaintiff in a § 1983 action must plead that the defendant, through his own individual actions, violated the Constitution); Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985) ("In order for an individual to be liable under § 1983, it must be 'affirmatively shown that the official charged acted personally in the deprivation of the plaintiff's rights. The doctrine of respondeat superior has no application under this section.' ") (quoting Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977)). Therefore, Plaintiff fails to state a civil rights claim against any of the defendants upon which relief can be granted.
Moreover, the Illinois Department of Corrections, an agency of the State of Illinois, is not a "person" amenable to suit under § 1983. See Will v. Mich. Dep't of State Police, 491 U.S. 58, 67-68, 71 (1989) (holding that neither a State nor its officials acting in their official capacities are "persons" under § 1983, and finding Congress did not intend to override the State's sovereign immunity by enacting the statute); see also Hafer v. Melo, 502 U.S. 21, 25-31 (1991); Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 482-83 (4th Cir. 2005). Therefore, Plaintiff fails to state a § 1983 claim against the Illinois Department of Corrections upon which relief can be granted.
Also, Bivens is not applicable to this defendant, because Bivens provides only for causes of action against federal officials in their individual capacities.
And as to Steve Welby, Plaintiff's former criminal defense attorney, he is not a state actor subject to suit pursuant to § 1983 or Bivens. Criminal defense attorneys do not act under the color of state law in the normal course of conducting a defense in a criminal prosecution, and therefore, they are not amenable to suit pursuant to § 1983 or Bivens. See Polk Cty. v. Dodson, 454 U.S. 312, 324-25 (1981); see also Hall v. Quillen, 631 F.2d 1154, 1155 (4th Cir. 1980) (finding no state action under § 1983 even where the plaintiff's attorney was a court-appointed public defender); Campbell v. North Carolina, No.1:12-CV-719, 2013 WL 2153110, at *2 n.1 (M.D.N.C. May 16, 2013) (collecting cases finding that federal public defenders are not amenable to suit pursuant to Bivens). Nor has Plaintiff pled any facts that would indicate Welby was acting in a role that has been found to implicate state action in other cases. See, e.g., Dodson, 454 U.S. 312, 324-25 (1981) (administrative and investigative functions); Tower v. Glover, 467 U.S. 914, 920 (1984) (conspiracy with state actors). Accordingly, Plaintiff's Complaint also fails to state a claim upon which relief can be granted against Defendant Welby.
III. Conclusion
For the foregoing reasons, it is recommended that the Complaint be dismissed without prejudice and without issuance and service of process. November 4, 2020
Columbia, South Carolina
If this recommendation is adopted, this action will constitute a "strike" under the Prison Litigation Reform Act ("PLRA"), Pub. L. No. 104-134, 110 Stat. 1321 (1996), based on Plaintiff's failure to state a claim upon which relief can be granted. See 28 U.S.C. § 1915(g) ("In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury."); see also Lomax v. Ortiz-Marquez, 140 S.Ct. 1721 (2020) (three strikes rule applies to dismissals without prejudice).
/s/_________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation."
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead 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 & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).