United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DIJFFEY, JR., UNITED STATES DISTRICT JUDGE
matter is before the Court on Magistrate Judge Justin S.
Anand's Final Report and Recommendation  (“Final
R&R”) recommending that this action be dismissed
for failure to state a claim under 28 U.S.C. § 1915A.
Also before the Court is Plaintiff's Motion for Extension
of Time to Correct Errors Made in Lawsuit  (“Motion
February 13, 2017, Plaintiff, a prisoner, filed his pro
se Civil Rights Complaint pursuant to 42 U.S.C. §
1983  (“Complaint”), asserting various
ineffective assistance of counsel claims against Defendant
Amanda Grantham, the assistant public defender that is
allegedly representing Plaintiff in his state criminal
proceedings. Plaintiff also appears to be requesting
appointment of a different attorney to his state criminal
case as well as damages.
11, 2017, the Magistrate Judge screened Plaintiff's
Complaint and issued his Final R&R, recommending that
this action be dismissed under 28 U.S.C. § 1915A.
Plaintiff did not file objections to the Final R&R. On
June 2, 2017, Plaintiff filed his Motion for Extension
seeking thirty days to “fix all error's [sic] made
in lawsuite [sic].” ( at 1).
Frivolity Review Under 28 U.S.C. § 1915A
federal court must screen “a complaint in a civil
action in which a prisoner seeks redress from a governmental
entity or officer or employee of a governmental
entity.” 28 U.S.C. § 1915A(a). The Court is
required to dismiss the complaint if it is “frivolous,
malicious, or fails to state a claim upon which relief may be
granted, ” or if it “seeks monetary relief from a
defendant who is immune from such relief.” 28 U.S.C.
§ 1915A(b). A claim is frivolous, and must be dismissed,
where it “lacks an arguable basis either in law or in
fact.” Miller v. Donald, 541 F.3d 1091, 1100
(11th Cir. 2008).
filed his Complaint pro se. “A document filed
pro se is to be liberally construed, and a pro
se complaint, however inartfully pleaded, must be held
to less stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94
(2007). Nevertheless, a pro se plaintiff must comply
with the threshold requirements of the Federal Rules of Civil
Procedure. See Beckwith v. Bellsouth Telecomms.
Inc., 146 F. App'x 368, 371 (11th Cir. 2005).
“Even though a pro se complaint should be
construed liberally, a pro se complaint still must
state a claim upon which the Court can grant relief.”
Grigsby v. Thomas, 506 F.Supp.2d 26, 28 (D.D.C.
2007). “[A] district court does not have license to
rewrite a deficient pleading.” Osahar v. U.S.
Postal Serv., 297 F. App'x 863, 864 (11th Cir.
Magistrate Judge's Report and Recommendation
conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or
modify a magistrate judge's report and recommendation. 28
U.S.C. § 636(b)(1); Williams v. Wainwright, 681
F.2d 732 (11th Cir. 1982), cert. denied, 459 U.S.
1112 (1983). A district judge “shall make a de
novo determination of those portions of the report or
specified proposed findings or recommendations to which
objection is made.” 28 U.S.C. § 636(b)(1). With
respect to those findings and recommendations to which
objections have not been asserted, the Court must conduct a
plain error review of the record. United States v.
Slay, 714 F.2d 1093, 1095 (11th Cir. 1983), cert.
denied, 464 U.S. 1050 (1984). Plaintiff did not file
objections to the Final R&R, and the Court thus reviews
it for plain error.
asserts § 1983 claims against Defendant for ineffective
assistance of counsel, including failing to file certain
motions and failing to act with reasonable diligence. (Compl.
at 4-8). To state a claim for relief under § 1983, a
plaintiff must allege that: (1) an act or omission deprived
him of a right, privilege, or immunity secured by the
Constitution or a statute of the United States; and (2) the
deprivation occurred under color of state law. Richardson
v. Johnson, 598 F.3d 734, 737 (11th Cir. 2010). The U.S.
Supreme Court has held that “[u]nlike a prosecutor or
the court, assigned counsel ordinarily is not considered a
state actor.” Vermont v. Brillon, 556 U.S. 81,
91 (2009). See also Polk Cnty. V. Dodson, 454 U.S.
312, 325 (1981) (“The Court today holds that a public
defender cannot act under color of state law because of his
independent ethical obligations to his client.”). The
Magistrate Judge found that because Amanda Grantham,
Plaintiff's alleged counsel in his state criminal
proceedings, is the only defendant named in the action, the
action required dismissal. ( at 3). The Court finds no
plain error in this determination.
also appears to be asking this Court to somehow interfere in
his state criminal proceedings by appointing new counsel
and/or for this Court to help bring about his release. Based
on the “settled policy” articulated in
Younger v. Harris, 401 U.S. 37, 46, 53-54 (1971),
that federal courts should not intervene in ongoing state
criminal prosecutions “when the moving party has an
adequate remedy at law and will not suffer irreparable injury
if denied equitable relief, ” the Magistrate Judge
found that any “extraordinary circumstances”
justifying the Court's intervention were lacking and
Plaintiff failed to provide justification as to why he would
be unable to raise any federal constitutional claims in the
state courts. ( at 1-2). The Magistrate Judge also found
that the proper vehicle ...