Opinion
C. A. 9:23-03883-BHH-MHC
09-27-2023
Harvie Lee Lance, Plaintiff, v. Patrick Hall, Defendant.
REPORT AND RECOMMENDATION
MOLLY H. CHERRY, UNITED STATES MAGISTRATE JUDGE
This a civil action filed by pro se Plaintiff Harvie Lee Lance. Under 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), pretrial proceedings in this action have been referred to the assigned United States Magistrate Judge.
In an Order (Proper Form Order) dated August 8, 2023, Plaintiff was directed to provide certain documents to bring his case into proper form. He was also notified of pleading deficiencies and given the opportunity to amend his Complaint. See ECF No. 5. On August 17, 2023, Plaintiff filed an Amended Complaint. ECF No. 8. He has provided the necessary documents to bring his case into proper form.
I. BACKGROUND
At the time he filed his Amended Complaint, Plaintiff was a pretrial detainee at the Allendale County Detention Center. He has been released from the detention center. See ECF No. 10. Plaintiff brings claims against Defendant Patrick Hall, a public defender. He asserts federal question jurisdiction and brings claims under 42 U.S.C. § 1983 (§ 1983). Plaintiff alleges ineffective assistance of counsel. ECF No. 8 at 4.
Plaintiff claims that Defendant never came to see him and Defendant was not in contact with him for a period of over six months, except for at a bond hearing held on April 6, 2023. He alleges that Defendant failed to respond to his letters, emails, text messages, and phone calls. ECF No. 8 at 5-6. Plaintiff contends that he has suffered mental and emotional injuries as well as high blood pressure. He requests $2,000,000 in damages and to be assigned new counsel. Id. at 6.
Records from Allendale County indicate that in February 2023, Plaintiff was arrested and charged with larceny/grand larceny, value $10,000 or more. He was represented by counsel. The records indicate a disposition of “disposed” with a notation of “dismissed-returned to law enforcement” on August 15, 2023. See Allendale County Fourteenth Judicial Circuit Public Index, https://publicindex.sccourts.org/Allendale/PublicIndex/PISearch.aspx [search “Harvie Lance”] (last visited Sept. 26, 2023).
This Court may take judicial notice of factual information located in postings on government websites. See Tisdale v. South Carolina Highway Patrol, No. 0:09-1009-HFF-PJG, 2009 WL 1491409, at *1 n. 1 (D.S.C. May 27, 2009), aff'd, 347 Fed.Appx. 965 (4th Cir. 2009); In re Katrina Canal Breaches Consol. Litig., No. 05-4182, 2008 WL 4185869, at * 2 (E.D. La. Sept. 8, 2008) (noting that courts may take judicial notice of governmental websites including other courts' records).
II. STANDARD OF REVIEW
A pro se Complaint is reviewed pursuant to the procedural provisions of 28 U.S.C. § 1915, the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996), and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992), Neitzke v. Williams, 490 U.S. 319 (1989), Haines v. Kerner, 404 U.S. 519 (1972), and Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983). Pro se complaints are held to a less stringent standard than those drafted by attorneys, and a court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016). However, the requirement of liberal construction does not mean that this Court can ignore a clear failure in the pleading to allege facts which set forth a claim currently 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”).
III. DISCUSSION
This action is subject to summary dismissal for the reasons discussed below.
A. Defendant is not a “Person” Subject to Suit under § 1983
Defendant should be summarily dismissed as a party to this action because an attorney, including a public defender, is generally not considered to be a state actor under § 1983. See Vermont v. Brillon, 556 U.S. 81, 91 (2009) (noting that a publicly assigned or privately retained counsel for a criminal defendant is not ordinarily considered a state actor); Polk Cnty. v. Dodson, 454 U.S. 312, 317-324 nn. 8-16 (1981) (“A lawyer representing a client is not, by virtue of being an officer of the court, a state actor ‘under color of state law' within the meaning of § 1983.”); Hall v. Quillen, 631 F.2d 1154, 1155-1156 & nn. 2-3 (4th Cir. 1980) (court-appointed attorney); Deas v. Potts, 547 F.2d 800 (4th Cir. 1976) (private attorney). Here, Plaintiff has alleged no facts to indicate that Defendant acted under color of state law.
To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
B. Younger /Interference with State Criminal Proceedings
To the extent Plaintiff may be requesting that this Court intervene in any pending criminal case, this action should be summarily dismissed. Federal courts, absent extraordinary circumstances, are not authorized to interfere with a State's pending criminal proceedings. See, e.g., Younger v. Harris, 401 U.S. 37, 44 (1971); Cinema Blue of Charlotte, Inc. v. Gilchrist, 887 F.2d 49, 50-53 (4th Cir. 1989). Specifically, the Younger Court noted that courts of equity should not act unless the moving party has no adequate remedy at law and will suffer irreparable injury if denied equitable relief. Younger, 401 U.S. at 43-44.
IV. RECOMMENDATION
Based on the foregoing, it is recommended that the Court dismiss this action without prejudice, without leave to amend, and without issuance and service of process.
See Britt v. DeJoy, 45 F.4th 790 (4th Cir. 2022) (noting that “when a district court dismisses a complaint or all claims without providing leave to amend ... the order dismissing the complaint is final and appealable”).
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
Post Office Box 835
Charleston, South Carolina 29402
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).