United States District Court, N.D. West Virginia, Elkins
ORDER ADOPTING REPORT AND RECOMMENDATION
PRESTON BAILEY, UNITED STATES DISTRICT JUDGE
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.
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.
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.
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. [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.
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.].
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.
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.
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.].
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. § 1983