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Galloway v. Gainer

United States District Court, N.D. West Virginia, Elkins

June 30, 2017

JERI LINN GALLOWAY, Plaintiff,
v.
JOHN E. GAINER, Esq., Defendant.

          ORDER ADOPTING REPORT AND RECOMMENDATION

          JOHN PRESTON BAILEY, UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         On this day, the above-styled matter came before this Court for consideration of the Report and Recommendation of United States Magistrate Judge James E. Seibert. [Doc. 6]. Pursuant to this Court's Local Rules, this action was referred to Magistrate Judge Seibert for submission of a proposed report and recommendation (“R&R”). Magistrate Judge Seibert filed his R&R on April 24, 2017, wherein he recommends this Court dismiss Plaintiff's Complaint [Doc. 1] with prejudice and deny Plaintiff's Motion to Proceed without Prepayment of Fees [Doc. 2] as moot.

         Pursuant to 28 U.S.C. § 636(b)(1)(c), this Court is required to make a de novo review of those portions of the magistrate judge's findings to which an objection is made. However, the Court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the findings or recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985). In addition, failure to file timely objections constitutes a waiver of de novo review and the right to appeal this Court's Order. 28 U.S.C. § 636(b)(1); Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). Here, objections to Magistrate Judge Seibert's R&R were due within fourteen (14) days of service pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). The docket reflects that service was accepted on April 26, 2017. [Doc. 8]. Plaintiff filed his Objection on May 12, 2017. [Doc. 10]. This Court will accept Plaintiff's Objection as timely. Accordingly, this Court will review the portions of the R&R to which Plaintiff objects under a de novo standard of review. The remainder of the R&R will be reviewed for clear error.

         After reviewing as discussed above, this Court is of the opinion that the magistrate judge's Report and Recommendation should be and is hereby ORDERED ADOPTED.

         II. BACKGROUND

         On February 9, 2016, Plaintiff was indicted in the Circuit Court of Tyler County, West Virginia, on the charge that he committed the felony offense of obtaining money by false pretense.[1] [Doc. 6]. The charge stemmed from dealings Plaintiff had with the Board of Trustees of the Middlebourne United Methodist Church, in which he pretended that he would perform work and improvements in exchange for $10, 000. [Id.]. Following a jury trial, Plaintiff was convicted on July 20, 2016. [Id.]. By Order filed on September 16, 2016, Plaintiff was sentenced to a term of not less than 1 year and not more than 10 years with credit for time served. [Id.]. In addition, Plaintiff was ordered to make restitution in the amount of $10, 000 to the Trustees of the Middlebourne United Methodist Church. [Id.].

         On April 20, 2017, Plaintiff initiated the instant action by filing a pro se Complaint against Defendant, his defense attorney, pursuant to 42 U.S.C. § 1983. [Doc. 1]. The same day, Plaintiff filed a Motion to Proceed without Prepayment of Fees. [Doc. 2]. In his Complaint, Plaintiff alleges that he received a more severe sentence than expected and that Defendant told Plaintiff he would be receiving probation. [Doc. 1]. Similarly, Plaintiff complains that Defendant gave him mistaken advice regarding parole or probation eligibility. [Id.]. Additionally, Plaintiff alleges that Defendant failed to file either a Rule 35 motion or an appeal. [Id.]. Plaintiff further alleges that Defendant failed to communicate a plea offer extended by the prosecutor. [Id.]. Next, Plaintiff lists various examples of what he considers to be ineffective assistance of counsel. [Id.].

         Finally, Plaintiff complains that he has been falsely imprisoned and has been “humiliated, disgraced, shamed, [deprived] of his pride and dignity, and punished by [his] attorney. [Id. at 11]. For relief, Plaintiff seeks immediate release, revocation of Defendant's license, and payment of an unspecified amount for every day he has been in jail and damages for the loss of his home and belongings. [Id.].

         III. DISCUSSION

         In his R&R, Magistrate Judge Seibert begins by outlining all of the above information regarding the background and procedural history of the instant case, as well as the content of Plaintiff's Complaint. [Doc. 6]. After laying out the necessary standard of review for prisoners seeking redress from a government entity and the requirements for a complaint to be considered frivolous, Magistrate Judge Seibert begins his analysis of Plaintiff's Complaint. [Id.]. The conclusion of this analysis is that Plaintiff's Complaint has no chance of success and is, therefore, frivolous and should be dismissed with prejudice. [Id.]. Plaintiff's Motion to Proceed without Prepayment of Fees should also be denied as moot. [Id.]. As reasoning for this conclusion, the magistrate judge states that a § 1983 action requires deprivation of a right secured by the Constitution by a person acting under color of state law. [Id.]. Private attorneys and public defenders do not act under color of state law, so a § 1983 action is not warranted. [Id.]. Further, the magistrate judge contends that if Plaintiff's action is successful it would serve to imply the invalidity of his sentence, which a § 1983 action may not do. [Id.]. In order for such a § 1983 action to proceed, the conviction must be otherwise invalidated. [Id.]. Because the instant action would have no chance for success, Magistrate Judge Seibert presents the conclusion that the Complaint should be dismissed. [Id.].

         Plaintiff's Objection does not object to any specific portion of Magistrate Judge Seibert's R&R. [Doc. 10]. Read liberally, it may be interpreted as a general objection to the R&R, viewing it as unfair and as inadequately representing Plaintiff's rights. [Id.]. After stating his belief that Magistrate Judge Seibert has taken all of his rights, Plaintiff launches into what amounts to a restatement of his original Complaint. [Id.]. Plaintiff explains that he was forced to be behind on all of his jobs because of a late payment on a previous job, then reaffirms his belief that Defendant did not adequately represent him and should not be a public defender. [Id.]. Finally, Plaintiff has attached a transcript from his trial to the Objection in which the process of Plaintiff being chosen for the Middlebourne Church job is outlined and Plaintiff is identified for the jury. [Id.]. The transcript then jumps to an explanation of the job which Plaintiff claims led to his being behind in his work. [Id.].

         A. Applicable Law

         A case filed under 42 U.S.C. § 1983 requires deprivation of a right secured by the Constitution by a person acting under color of state law. 42 U.S.C. § 1983. Private attorneys and public defenders do not act under color of state law by being part of the state judicial system or being paid by a state agency. Polk County v. Dodson, 454 U.S. 312 (1981); see also Hall v. Quillen, 631 F.2d 1554 (4th Cir. 1980) (affirming dismissal of 42 U.S.C. ยง 1983 ...


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