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Pursuan t to the provi sions of 28 U.S.C. §6 36(b)(1)(B), and Loca l Rule 73.0 2(B)(2)(d),1
D.S.C., the undersigned is auth orized to review such com plaint s for relief and subm it
findings and recommendat ions to the District Court.UNITE D STA TES DIST RICT COURT
DIST RICT OF SOUT H CAROLINA
Broderick A. Williams,
Plaintiff,
vs.
F. M. and S.N.S.,
Defendants.
_________ _________ _________ _________ ______) C/A No. 8:0 9-3331-TLW-BHH
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) REPORT AND
) RECOMMENDATION
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The plaintiff, Broderick A. Williams (“Plaintiff”), proceeding pro se , brings this action
pursuant to 42 U.S.C. § 1983. At the time Plaintiff filed his compl aint, he was a det ainee1
at the Greenville County Detention Center and had a criminal case pending against him.
Plaintiff files thi s action in form a pauperis under 28 U .S.C. § 1915. Plaintiff names as
defendants in this civil rights action the victim involved in Plaintiff’s criminal case and t he
victim’s mother . The compl aint alleges cons piracy to perpetrate fr aud and deni al of due
proce ss. Plaintif f seeks m onetary damages. Th e com plaint shou ld be dismissed for failure
to state a claim upon w hich relief may be g ranted.
Pro Se and In Form a Pau peris Review
Under established l ocal procedu re in this judicial district, a careful r eview has been
made of the pro se complai nt pu rsuant to the pr ocedu ral provisions of 28 U.S.C. § 1915.
This review has been condu cted in light of the following precede nts: Denton v. Hernandez ,
504 U.S. 25 (1992) ; Neitzke v. Williams, 490 U.S. 319, 324-25 (1989) ; Haines v. Kerner,
2404 U.S. 519 (1972); Nasim v. W arden, Md. Hou se of Corr. , 64 F.3d 951 (4 Cir. 1995) (enth
banc ); Todd v. Baskerville , 712 F.2d 70 (4 Cir. 198 3).th
The compl aint herein has been filed pursu ant to 28 U.S.C. § 1915, which per mits
an indigent l itigant t o commence a n ac tion in federal court without prepay ing the
admini strative costs of proceed ing with the law suit. To pr otect against poss ible abus es of
this privilege, the statute allows a district court to dismiss the case upon a finding that the
action is “frivolous or malicious; fails to state a claim on w hich relief may be g ranted; or
seeks m onetary relief against a def endant who is imm une from su ch relief .” §
1915( e)(2)(B)(i-iii).
This Court is required to liberally construe pro se documents , Erickson v. Pa rdus,
551 U .S. 89 (2007) , holding them to a l ess stringent s tandar d tha n tho se drafted by
attorneys. Estelle v. Gam ble, 429 U .S. 97 (1976) , Hughes v. Rowe, 449 U.S. 9 (198 0) (per
curiam). Even under this less stringent standard, ho wever, the pro se comp laint is subject
to summary dismissal. The manda ted liberal construction afforded t o pro se pleadings
means th at if the cou rt can reaso nably read th e plea dings to state a valid claim on w hich
the p laintiff could prevail, it should do so, but a district court may not rewrite a petition to
include claims that w ere nev er present ed, Barnett v. Hargett, 174 F.3d 1 128, 1133 ( 10th
Cir. 1999) , or cons truct the p laintiff's legal arguments for h im, Small v. Endi cott, 998 F.2d
411, 417-18 (7 Cir. 199 3), or “conjure up q uestions never squarely present ed” to theth
court, Beaudet t v. City of Hampton, 775 F.2d 1 274, 1278 ( 4 Cir. 198 5). The r equirementth
of liberal cons truction does not mean tha t the court can ignore a cl ear failure in the
pleading to allege f acts w hich set forth a cl aim currently cogniz able in a f ederal district
3court. Weller v. Dep’ t of So c. Servs. , 901 F.2d 3 87, (4th Cir. 199 0).
Discussion
Plaintiff files this acti on purs uant to 42 U.S.C. § 1983. A leg al action under § 19 83
allows “a par ty who has been deprived of a federal right under the color of sta te law to seek
relief.” City of Mont erey v. Del Monte Dunes at Monter ey, Ltd., 526 U.S. 687 , 707 (1999 ).
The civil rights statute 42 U .S.C. § 1983 “ ‘is not itself a s ource of subs tantive rights,’ but
merely provi des ‘a method for vindicat ing fe deral rights elsew here conf erred.’” Albright v.
Oliver, 510 U.S. 266 , 271 (1994 ), quot ing Bake r v. McCollan, 443 U.S. 137, 144, n. 3
(1979). To state a claim under § 19 83, a plaintiff must allege two essential elements : (1)
that a right secured by the Co nstitution or law s of the Uni ted S tates 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, 4 8 (1988) .
The compl aint in this case fails to allege any action unde r color of sta te law. The
named defendants are the alleged victim, and the victim’s mother, in Plaintiff’s state
criminal case. To all ege acti on under col or of state law and “i mplicate 42 U.S.C. § 1983,
cond uct m ust be ‘fairly attribut able to the State .’” Debauc he v. Trani, 191 F.3d 499, 50 6
(4 Cir. 1999). The person being sued under § 1983 “must either be a state actor or haveth
a sufficiently close relationship with state actors such that a court would conclude t hat the
non-state actor is engaged in the stat e's action s.” Id. The c omplai nt alleges private a ction
by individuals, and “the S upreme C ourt has held that private activity will generally not be
deemed ‘state action .’” Id. [citation omitted]. The al legations of the c omplai nt fail to
establish the defendants acted under color of state law and thus, the defendants are not
4subject to liability under § 19 83. The compl aint fails to state a claim pur suant to § 1983,
and s hould be dismissed for fail ure to state a claim on w hich relief may be g ranted. 28
U.S.C. § 1915( e)(2)(B)(ii).
Recommendati on
Accordingly, it is recommended that the District Judg e dismiss the compl aint witho ut
prejud ice and without issuance and service of pr oces s. The plaintiff’s at tention is
directed to the notice on the following page.
s/Bruce How e Hend ricks
United S tates Magistrate J udge
February 2, 2010
Greenv ille, Sout h Carolina
5Notice of Right to File Objections to Report and Recomme ndation
The parties are ad vised th at they may file specif ic written ob jection s to this Repo rt
and R ecom mendati on w ith the District Judge. Objections mus t specifically identi fy the
portio ns of the Repo rt and Recom mendation to which objection s are ma de and th e basis
for such objections. “[I]n the absence of a ti mely filed obj ection, a district court nee d not
condu ct a de nov o rev iew, but inst ead must ‘onl y satisfy itself that there is no clear error
on th e face o f the record in orde r to accep t the recom mendation.’” Diamond v . Colonial
Life & Acc. Ins. Co., 416 F.3d 31 0 (4 Cir. 2005) (q uoting Fed. R. Civ . P. 72 advisoryth
commi ttee’s note).
Spec ific written objections must be f iled w ithin fourt een ( 14) days of the dat e of
service of this Report an d Recom mendation. 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 Fede ral Rule of Civil Procedu re 5
may be a ccompli shed by mailing objections to:
Larry W. Prope s, Clerk
United State s Distri ct Court
Post Office B ox 10768
Greenv ille, Sout h Carolina 2960 3
Failure to timely file specific written objections to this Report and
Recomme ndation w ill res ult in w aiver of the right to a ppeal from a judgment of the
District Court based upon such Recommenda tion. 28 U .S.C. § 636(b)(1); Thomas v.
Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 8 41 (4th C ir. 198 5); United S tates
v. Schron ce, 727 F.2d 91 (4th Cir. 1984 ).