IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA
Tashonby Pedrick Wilson, ) C/A No. 0:25-12615-MGL-PJG ) Plaintiff, ) ) ORDER AND v. ) REPORT AND RECOMMENDATION ) Joshua Koger, Jr., ) ) Defendant. ) )
The plaintiff, Tashonby Pedrick Wilson, a self-represented state prisoner, brings this civil rights action pursuant to 42 U.S.C. § 1983. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for initial review pursuant to 28 U.S.C. § 1915 and § 1915A. Having reviewed the Complaint in accordance with applicable law, the court concludes that it should be summarily dismissed without prejudice and without issuance and service of process.1 I. Procedural Background Plaintiff brings this action pursuant to § 1983, alleging constitutional violations by his trial attorney. Plaintiff alleges that Defendant provided ineffective assistance in a litany of ways, ultimately resulting in Plaintiff’s conviction and incarceration. He alleges that he became aware of Defendant’s errors when a state post-conviction relief application was filed on his behalf in August 2024. Plaintiff seeks immediate release, to be declared innocent of his charges, and monetary damages for each year of his wrongful incarceration.
1 Plaintiff has submitted an Application to Proceed Without Prepayment of Fees and Affidavit (Form AO 240) and financial certificate, which are construed as a motion for leave to proceed in forma pauperis. See 28 U.S.C. § 1915(a)(1), (2). A review of the motion reveals that Plaintiff does not have the funds to pay the first installment of the filing fee. Plaintiff’s motion for leave to proceed in forma pauperis is granted. (ECF No. 2.) II. Discussion A. Standard of Review Under established local procedure in this judicial district, a careful review has been made of the pro se Complaint pursuant to the procedural provisions of the Prison Litigation Reform Act
(“PLRA”), Pub. L. No. 104-134, 110 Stat. 1321 (1996), including 28 U.S.C. § 1915 and 28 U.S.C. § 1915A. The Complaint has been filed pursuant to 28 U.S.C. § 1915, which permits an indigent litigant to commence an action in federal court without prepaying the administrative costs of proceeding with the lawsuit, and is also governed by 28 U.S.C. § 1915A, which requires the court to review a complaint filed by a prisoner that seeks redress from a governmental entity or officer or employee of a governmental entity. See McLean v. United States, 566 F.3d 391 (4th Cir. 2009). Section 1915A requires, and § 1915 allows, a district court to dismiss the case upon a finding that the action is frivolous, malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); 28 U.S.C. § 1915A(b). To state a claim upon which relief can be granted, the plaintiff must do more than make
mere conclusory statements. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 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. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 570. The reviewing court need only accept as true the complaint’s factual allegations, not its legal conclusions. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555. This court is required to liberally construe pro se complaints, which are held to a less stringent standard than those drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007); King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016). Nonetheless, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim 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”).
B. Analysis The Complaint is filed pursuant to 42 U.S.C. § 1983, which “ ‘is not itself a source of substantive rights,’ but merely provides ‘a method for vindicating federal rights elsewhere conferred.’ ” Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). To state a claim under § 1983, a plaintiff must allege: (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). Here, Plaintiff expressly alleges violations of his Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment rights. However, Plaintiff fails to allege any constitutional violation by a state actor. Plaintiff indicates that Defendant was his trial attorney who represented him on his criminal
charges. Criminal defense attorneys do not act under the color of state law in the normal course of conducting a defense in a criminal prosecution, and therefore, they are not amenable to suit pursuant to § 1983. See Deas v. Potts, 547 F.2d 800, 800 (4th Cir. 1976) (“A private attorney who is retained to represent a criminal defendant is not acting under color of state law, and therefore is not amenable to suit under s 1983.”); Hall v. Quillen, 631 F.2d 1154, 1155 (4th Cir. 1980) (finding no state action under § 1983 where the plaintiff’s attorney was court-appointed); Parkell v. South Carolina, 687 F. Supp. 2d 576, 586 (D.S.C.
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA
Tashonby Pedrick Wilson, ) C/A No. 0:25-12615-MGL-PJG ) Plaintiff, ) ) ORDER AND v. ) REPORT AND RECOMMENDATION ) Joshua Koger, Jr., ) ) Defendant. ) )
The plaintiff, Tashonby Pedrick Wilson, a self-represented state prisoner, brings this civil rights action pursuant to 42 U.S.C. § 1983. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for initial review pursuant to 28 U.S.C. § 1915 and § 1915A. Having reviewed the Complaint in accordance with applicable law, the court concludes that it should be summarily dismissed without prejudice and without issuance and service of process.1 I. Procedural Background Plaintiff brings this action pursuant to § 1983, alleging constitutional violations by his trial attorney. Plaintiff alleges that Defendant provided ineffective assistance in a litany of ways, ultimately resulting in Plaintiff’s conviction and incarceration. He alleges that he became aware of Defendant’s errors when a state post-conviction relief application was filed on his behalf in August 2024. Plaintiff seeks immediate release, to be declared innocent of his charges, and monetary damages for each year of his wrongful incarceration.
1 Plaintiff has submitted an Application to Proceed Without Prepayment of Fees and Affidavit (Form AO 240) and financial certificate, which are construed as a motion for leave to proceed in forma pauperis. See 28 U.S.C. § 1915(a)(1), (2). A review of the motion reveals that Plaintiff does not have the funds to pay the first installment of the filing fee. Plaintiff’s motion for leave to proceed in forma pauperis is granted. (ECF No. 2.) II. Discussion A. Standard of Review Under established local procedure in this judicial district, a careful review has been made of the pro se Complaint pursuant to the procedural provisions of the Prison Litigation Reform Act
(“PLRA”), Pub. L. No. 104-134, 110 Stat. 1321 (1996), including 28 U.S.C. § 1915 and 28 U.S.C. § 1915A. The Complaint has been filed pursuant to 28 U.S.C. § 1915, which permits an indigent litigant to commence an action in federal court without prepaying the administrative costs of proceeding with the lawsuit, and is also governed by 28 U.S.C. § 1915A, which requires the court to review a complaint filed by a prisoner that seeks redress from a governmental entity or officer or employee of a governmental entity. See McLean v. United States, 566 F.3d 391 (4th Cir. 2009). Section 1915A requires, and § 1915 allows, a district court to dismiss the case upon a finding that the action is frivolous, malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); 28 U.S.C. § 1915A(b). To state a claim upon which relief can be granted, the plaintiff must do more than make
mere conclusory statements. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 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. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 570. The reviewing court need only accept as true the complaint’s factual allegations, not its legal conclusions. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555. This court is required to liberally construe pro se complaints, which are held to a less stringent standard than those drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007); King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016). Nonetheless, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim 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”).
B. Analysis The Complaint is filed pursuant to 42 U.S.C. § 1983, which “ ‘is not itself a source of substantive rights,’ but merely provides ‘a method for vindicating federal rights elsewhere conferred.’ ” Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). To state a claim under § 1983, a plaintiff must allege: (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). Here, Plaintiff expressly alleges violations of his Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment rights. However, Plaintiff fails to allege any constitutional violation by a state actor. Plaintiff indicates that Defendant was his trial attorney who represented him on his criminal
charges. Criminal defense attorneys do not act under the color of state law in the normal course of conducting a defense in a criminal prosecution, and therefore, they are not amenable to suit pursuant to § 1983. See Deas v. Potts, 547 F.2d 800, 800 (4th Cir. 1976) (“A private attorney who is retained to represent a criminal defendant is not acting under color of state law, and therefore is not amenable to suit under s 1983.”); Hall v. Quillen, 631 F.2d 1154, 1155 (4th Cir. 1980) (finding no state action under § 1983 where the plaintiff’s attorney was court-appointed); Parkell v. South Carolina, 687 F. Supp. 2d 576, 586 (D.S.C. 2009) (“An attorney, whether retained, court- appointed, or a public defender, does not act under color of state law, which is a jurisdictional prerequisite for any civil action brought under 42 U.S.C. § 1983.”). Plaintiff’s allegation against Defendant concerns Defendant’s judgment as Plaintiff’s advocate in his criminal proceeding, and therefore, does not implicate any state action. Nor has Plaintiff pled any facts that would indicate that Defendant was acting in a role that has been found to implicate state action in other cases. See, e.g., Dodson, 454 U.S. 312, 324-25 (1981) (administrative and investigative functions); Tower v. Glover, 467 U.S. 914, 920 (1984) (conspiracy with state actors). Accordingly, Plaintiff's Complaint fails to state a claim upon which relief can be granted against Defendant. As this deficiency cannot be cured through amendment, the court recommends summary dismissal of the Complaint. HI. Conclusion For the foregoing reasons, it is recommended that the Complaint be dismissed without prejudice and without issuance and service of process. Oda; msek— October 1, 2025 VamQWnser— Columbia, South Carolina UNITED STATES MAGISTRATE JUDGE The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Page 4 of 5
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 901 Richland Street Columbia, South Carolina 29201
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).