Opinion
C/A No.: 3:19-2175-HMH-SVH
09-12-2019
Latorey Greene, #292916, Plaintiff, v. Ken Young, Patrick Wright, Casey Dale Cornwell, Jack Howle, Darrell Gourley, Harry O'Connor, Susan Mayes, Charles Brooks, and Kelly Jackson, Defendants.
REPORT AND RECOMMENDATION
Latorey Greene ("Plaintiff"), proceeding pro se and in forma pauperis, filed this complaint against attorneys Ken Young, Patrick Wright, Casey Dale Cornwell, Jack Howle, Darrell Gourley, and Charles Brooks ("Attorney Defendants"), and former Sumter County Solicitors Harry O'Connor, Kelly Jackson, and Susan Mayes ("Solicitor Defendants") (collectively "Defendants"), alleging violations of his civil and other Constitutional rights. 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. For the following reasons, the undersigned recommends the district judge dismiss the complaint with prejudice and without issuance and service of process. I. Factual and Procedural Background
Plaintiff is a state prisoner serving a life sentence for murder. [ECF No. 1 at 3]. He alleges the attorneys involved in his state criminal action and appeals manipulated the docket, tried him three times for the same murder, mishandled evidence, and provided ineffective assistance of counsel. Id. at 2-4. He seeks immediate release from prison. Id. at 5.
On August 16, 2019, the undersigned issued an order and notice, cautioning Plaintiff that his case was subject to summary dismissal and permitting him until September 6, 2019, to attempt to correct defects in his complaint. [ECF No. 10]. Plaintiff failed to file an amended complaint. 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. 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
1. Failure to Prosecute
It is well established that a district court has authority to dismiss a case for failure to prosecute. "The authority of a court to dismiss sua sponte for lack of prosecution has generally been considered an 'inherent power,' governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases." See Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962). In addition to its inherent authority, this court may also sua sponte dismiss a case for lack of prosecution under Fed. R. Civ. P. 41(b). Id. at 630. Based on Plaintiff's failure to respond to the court's August 16, 2019 order and notice, the undersigned concludes Plaintiff does not intend to pursue the above-captioned matter. Accordingly, the undersigned recommends the case be dismissed for failure to prosecute pursuant to Fed. R. Civ. P. 41. Alternatively, the undersigned recommends Plaintiff's complaint be summarily dismissed on the merits.
2. Attorney Defendants Not State Actors
To state a plausible claim for relief under 42 U.S.C. § 1983, an aggrieved party must sufficiently allege 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." See 42 U.S.C. § 1983; see generally 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1230 (3d ed. 2014). An attorney, whether retained or appointed, does not act under color of state law when performing traditional functions as counsel. See Polk County v. Dodson, 454 U.S. 312, 317-24 nn. 8-9, 12-14 (1981) (finding public defender does not act under color of state law); Hall v. Quillen, 631 F.2d 1154, 1155-56 nn. 2-4 (4th Cir. 1980) (finding court-appointed attorney does not act under color of state law); Deas v. Potts, 547 F.2d 800 (4th Cir. 1976) (finding private attorney does not act under color of state law).
Plaintiff alleges Attorney Defendants failed to render effective legal representation in his criminal, appellate, and post-conviction relief proceedings. [ECF No. 1 at 2]. Attorney Defendants did not act under color of state law while performing traditional functions as counsel in these proceedings. Therefore, Plaintiff has failed to state a plausible claim for relief under 42 U.S.C. § 1983 against Attorney Defendants.
3. Prosecutorial Immunity
Prosecutors have absolute immunity for activities in or connected with judicial proceedings, including criminal trials, bond hearings, bail hearings, grand jury proceedings, and pre-trial hearings. See Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993) ("[A]cts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State, are entitled to the protections of absolute immunity"); Dababnah v. Keller-Burnside, 208 F.3d 467, 470 (4th Cir. 2000) ("A prosecutor enjoys absolute immunity for prosecutorial functions intimately associated with the judicial phase of the criminal process.") (internal quotation omitted).
Plaintiff alleges Solicitor Defendants manipulated the docket, tried him three times for the same crime, failed to timely turn over evidence, and relied on improperly-submitted evidence to obtain a conviction. [ECF No. 1 at 3]. Because Plaintiff claims Solicitor Defendants' actions were connected with criminal trials and judicial proceedings, Solicitor Defendants are entitled to absolute immunity for their actions and should be dismissed as parties.
4. Requested Remedy Not Available
Release from prison is not an available remedy in an action brought pursuant to § 1983. "[H]abeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release, even though such a claim may come within the literal terms of § 1983." Heck v. Humphrey, 512 U.S. 477, 481 (1991); see also Preiser v. Rodriguez, 411 U.S. 475 (1973) (holding claims seeking immediate or speedier release are not cognizable under § 1983 and must be brought in a habeas corpus proceeding); In re Wright, 826 F.3d 774, 779 (4th Cir. 2016) (finding challenge to classification affecting parole eligibility governed by 28 U.S.C. § 2254).
Plaintiff requests the court order his release from prison. [ECF No. 1 at 5]. The court is unable to provide the relief Plaintiff requests pursuant to § 1983.
To the extent Plaintiff's complaint could be construed as a petition for a writ of habeas corpus, Plaintiff has already pursued a habeas action in this court on similar grounds, and the court considered Plaintiff's petition on the merits and granted Respondent's motion for summary judgment. See Greene v. Warden, C/A No. 3:09-258-HMH-JRM (D.S.C. Jan. 4, 2010). Plaintiff is not permitted to bring a second or successive petition under 28 U.S.C. § 2254 without first receiving permission to do so from the Fourth Circuit Court of Appeals ("Fourth Circuit"). See In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997); 28 U.S.C. § 2244(b)(3)(A) (requiring prospective petitioner to motion the circuit court of appeals for permission to file a second or successive habeas petition in the district court). Plaintiff has not shown that he obtained the required authorization from the Fourth Circuit. Therefore, this court does not have jurisdiction to consider a successive habeas petition. III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge dismiss the complaint with prejudice and without issuance and service of process.
Because the claims against Defendants would ultimately fail if Plaintiff were allowed to amend his complaint, the undersigned recommends the district judge order the dismissal with prejudice.
IT IS SO RECOMMENDED. September 12, 2019
Columbia, South Carolina
/s/
Shiva V. Hodges
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).