United States District Court, M.D. Alabama, Northern Division
SAMUEL A. McCORMICK, #284527, Plaintiff,
KATHENA BARNES, Defendant.
RECOMMENDATION OF THE MAGISTRATE JUDGE
WALLACE CAPEL, Jr., Magistrate Judge.
In this 42 U.S.C. § 1983 action, Samuel A. McCormick ["McCormick"], a state inmate, complains his attorney's legal assistant, Kathena Barnes, committed fraud and fraudulent misrepresentation during proceedings related to a conviction imposed upon him by the Circuit Court of Covington County, Alabama, for possession of obscene matter involving a person under seventeen (possession of child pornography). Complaint - Doc. No. 1 at 1. Specifically, McCormick asserts that Barnes "presented a Plea of Guilty and Waiver of Arraignment to the Covington County Circuit Court as a true and correct document when... Kathena Barnes" did not know whether Barnes was the individual who actually signed the document. Id. "McCormick was injured by Kathena Barnes fraudulent presentation of said document wherefore McCormick's case proceeded to trial and McCormick was convicted and sentenced to serve 10 years in prison." Id. McCormick seeks declaratory relief and monetary damages from defendant Barnes. Id. at 4.
Upon review of the complaint, the court concludes that dismissal of this case prior to service of process is appropriate under 28 U.S.C. § 1915(e)(2)(B)(i) and (ii).
A. Kathena Barnes
1. Claims Impacting McCormick's Constitutional Rights. An essential element of a 42 U.S.C. § 1983 action is that a person acting under color of state law committed the asserted constitutional deprivation. American Manufacturers Mutual Ins. Co. v. Sullivan, 526 U.S. 40, 49 (1999); Willis v. University Health Services, Inc., 993 F.2d 837, 840 (11th Cir. 1993).
To state a [viable] claim for relief in an action brought under § 1983, [a plaintiff] must establish that [he was] deprived of a right secured by the Constitution or laws of the United States, and that the alleged deprivation was committed under color of state law.... [T]he under-color-of-state-law element of § 1983 excludes from its reach "merely private conduct, no matter how discriminatory or wrongful, '" Blum v. Yaretsky, 457 U.S. 991, 1002, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982) (quoting Shelley v. Kraemer, 334 U.S. 1, 13, 68 S.Ct. 836, 92 L.Ed. 1161 (1948)).... [Consequently, ] state action requires both an alleged constitutional deprivation "caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible, " and that "the party charged with the deprivation must be a person who may fairly be said to be a state actor." Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982); see Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 156, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978)."
American Manufacturers, 526 U.S. at 49-50 (footnote omitted) (emphasis in original).
The law is well settled that neither an attorney nor his assistant act under color of state law during representation of an accused in criminal proceedings. Polk County v. Dodson, 454 U.S. 312 (1981); Mills v. Criminal District Court No. 3, 837 F.2d 677, 679 (5th Cir. 1988) ("[P]rivate attorneys [and by extension their legal assistants], even court-appointed attorneys, are not official state actors and... are not subject to suit under section 1983."). Since the conduct about which McCormick complains was not committed by a person acting under color of state law, the claims of ineffective assistance asserted against defendant Barnes are frivolous as such claims lack an arguable basis in law. Neitzke v. Williams, 490 U.S. 319, 327 (1989). In light of the foregoing, the plaintiff's 42 U.S.C. § 1983 claims against defendant Barnes are due to be summarily dismissed in accordance with the directives of 28 U.S.C. § 1915(e)(2)(B)(i).
2. State Tort Claims of Fraud and Fraudulent Misrepresentation. To the extent McCormick seeks to invoke the supplemental jurisdiction of this court with respect to claims arising under state law, he is entitled to no relief. Review of pendent state law claims is only appropriate upon exercise of this court's supplemental jurisdiction over a related constitutional claim. In the posture of this case, however, the court concludes that the exercise of supplemental jurisdiction is inappropriate.
Two factors determine whether state law claims lacking an independent federal jurisdictional basis can be heard in federal court with a federal claim over which the court has jurisdiction. To exercise pendent jurisdiction [or what is now identified as supplemental jurisdiction] over state law claims not otherwise cognizable in federal court, "the court must have jurisdiction over a substantial federal claim and the federal and state claims must derive from a common nucleus of operative fact.'" Jackson v. Stinchcomb, 635 F.2d 462, 470 (5th Cir.1981) (quoting United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966)). See generally C. Wright, A. Barley & E. Cooper, Federal Practice and Procedure: Jurisdiction § 3567 pp. 443-47 (1975).
L.A. Draper and Son v. Wheelabrator Frye, Inc.,
735 F.2d 414, 427 (11th Cir. 1984). The exercise of supplemental jurisdiction is completely discretionary. United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966). "If the federal claims are dismissed prior to trial, Gibbs strongly encourages or even requires dismissal of the state claims." L.A. Draper and Son, 735 F.2d at 428. In view of this court's resolution of the federal claims presented by McCormick challenging the representation provided by the defendant, any pendent state claim is due to be dismissed. Gibbs, 383 U.S. at 726 (if the federal claim from which the state ...