PATRICK DUFFY, District Judge.
This matter is before the court upon the Magistrate Judge's recommendation that Plaintiff's case be dismissed without prejudice and without issuance and service of process. This record includes a Report and Recommendation (R R) of the United States Magistrate made in accordance with 28 U.S.C. § 636 (b)(1)(B). Plaintiff filed two pro se Complaints against the Defendants who served as his trial counsel in a federal criminal prosecution which is now pending on appeal. Plaintiff filed these actions, pursuant to 42 U.S.C. § 1983, seeking $2.5 million in compensation for legal malpractice and ineffective assistance of counsel on the part of Defendants.
The court will treat both Complaints as one because both Complaints arise from the same set of facts.
The Magistrates's Report and Recommendation (R R) was filed on June, 26, 2002. A party may object, in writing, to a magistrate's report within ten days after being served with a copy of that report. 28 U.S.C. § 636 (b)(1). Plaintiff timely filed his objections on July 12, 2002. The R R has no presumptive weight, and the responsibility for making a final determination remains with the court. The court reviews de novo any portions of a magistrate judge's report to which a specific objection is registered and may accept, reject, or modify, in whole or in part, the recommendation contained in that report. 28 U.S.C. § 636 (b)(1). Any written objections must specifically identify the portions of the R R to which objections are made and the basis for those objections. Id.
DISCUSSION
The Magistrate Judge correctly concluded that Plaintiff's claims of negligence and malpractice are not actionable under § 1983. See Daniels v. Williams, 474 U.S. 327, 328-336 n. 3 (1986). The Magistrate noted that negligence and legal malpractice are causes of action under South Carolina law, and therefore a civil action for negligence and legal malpractice would be cognizable in this court under the diversity statute. However, both Plaintiff and Defendants are South Carolina citizens precluding diversity jurisdiction. In addition, the Magistrate Judge correctly concluded that Plaintiff's claim of "ineffective assistance of counsel" is not properly before this Court because Plaintiff's appeal is still pending. If Plaintiff is unsuccessful in his pending appeal, he should then seek relief under 28 U.S.C. § 2255.
In response, Plaintiff states that he filed his Complaint to the best of his legal knowledge and that his access to legal materials is limited. (Pl.'s Objections at 2.) Therefore, he asks that his case not be dismissed because of an insufficient opportunity to obtain the necessary legal facts. ( Id.) However, Plaintiff's claim that he has limited access to legal materials has no effect on the reality that his claims for negligence and legal malpractice are not actionable under § 1983. See Daniels, 474 U.S. at 328-336. In addition, Plaintiff's claim of "ineffective assistance of counsel" is not properly before the court in an action for damages under § 1983. Instead, Plaintiff should seek relief for his ineffective assistance of counsel claim under 28 U.S.C. § 2255, provided that he is unsuccessful on his pending appeal.
Plaintiff claims that dismissal of his case under such circumstances would constitute a violation of his Fifth Amendment due process rights. However, this claim is unavailing as it is clear that no amount of access to legal materials on the part of Plaintiff would result in any argument which could overcome the fundamental procedural deficiencies in this action.
CONCLUSION
It is, therefore,
ORDERED, for the foregoing reasons and after conducting a de novo review of the record, Plaintiff's Objections, and the Report and Recommendation, that the court adopts and incorporates the Magistrate's Report and Recommendation as part of this Order by specific reference. Accordingly, Plaintiff's claim under § 1983 is DISMISSED WITHOUT PREJUDICE.
AND IT IS SO ORDERED.