Cole v. Bailey

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA Craig Lamont Cole, ) C/A No.: 3:20-2009-SAL-SVH ) Plaintiff, ) ) vs. ) ) ORDER AND NOTICE J. Rhodes Bailey, ) ) Defendant. ) ) Craig Lamont Cole (“Plaintiff”), proceeding pro se, filed this complaint seeking compensatory damages pursuant to 42 U.S.C. § 1983 against J. Rhodes Bailey (“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 alleges Defendant, who was serving as Plaintiff’s appointed counsel, verbally berated him and “raised arms to [Plaintiff’s ] chest.” [ECF No. at 5]. Plaintiff alleges that after he retreated to the recreation area, he was approached by correctional officers and ordered to be locked in his assigned cell until the next shift. . at 6. Plaintiff states that he no longer trusts the attorneys from the public defender’s officer and claims his due process rights have been usurped because he has had a lack of representation during crucial junctures in his criminal cases. . He seeks $100,000 in compensatory damages and $250,000 in punitive damages.

II. Discussion A. Standard of Review 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 To the extent Plaintiff seeks to bring claims for violations of his civil rights pursuant to 42 U.S.C. § 1983, he has failed to allege the violations were committed under the color of state law. A criminal defense attorney, whether retained or appointed, does not act under color of state law or federal law, which is a jurisdictional prerequisite for any civil action brought under § 1983. , 454 U.S. 312, 317–24 nn. 8–9, 12–14 (1981); , 457 U.S. 922, 940 (1982) (finding purely private conduct is not actionable under § 1983). Plaintiff alleges no other basis for jurisdiction, and no basis appears on the face of the complaint. Because Plaintiff has not shown that the court has either diversity or federal question jurisdiction over his claim, his complaint is subject to summary dismissal.

NOTICE CONCERNING AMENDMENT Plaintiff may attempt to correct the defects in his complaint by filing an amended complaint by June 16, 2020, along with any appropriate service documents. Plaintiff is reminded an amended complaint replaces the original complaint and should be complete in itself. See Young v. City of Mount Ranier, 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 U.S.C. § 1915A. If Plaintiff fails to file an amended complaint or fails to cure the deficiencies identified above, the undersigned will recommend the district judge dismiss the complaint without leave for further amendment.

IT IS SO ORDERED. (Ye. V. adper May 28, 2020 Shiva V. Hodges Columbia, South Carolina United States Magistrate Judge