Montgomery v. Hooper (MAG+)

Filing 16

REPORT AND RECOMMENDATIONS that Plaintiff's complaint, as amended, be dismissed and judgment entered in favor of Defendants; Objections to R&R due by 4/22/2009; ORDER that the stay entered by the Court on February 26, 2009, by doc. 15 is LIFTED to permit Plaintiff's submission of Objections to this Recommendation. Signed by Honorable Wallace Capel, Jr on 4/9/2009. (cc, )

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION _______________________________ J A M E S N. MONTGOMERY, #236822, P l a in tif f , v. SCOTT J. HOOPER, et al., D e f e n d a n t. _______________________________ ) ) ) ) ) ) ) ) ) )

2:08-CV-893-MHT

R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE O n November 6, 2008, Plaintiff filed a document styled "Civil Action Complaint." (D o c . #1). On December 2, 2008, this matter was referred to the undersigned Magistrate J u d g e for disposition or a recommendation on all pretrial matters. (Doc. #2). On January 14, 2 0 0 9 , the Court granted Plaintiff's Motion to Amend (Doc. #9) his complaint. Plaintiff filed h is Amended Complaint on January 22, 2009. (Doc. #11). The Court has granted Plaintiff in forma pauperis status and now undertakes review of his complaint, as amended, pursuant to 28 U.S.C. § 1915(e). For all the foregoing reasons, the undersigned Magistrate Judge R E C O M M E N D S that Plaintiff's Complaint, as amended, be DISMISSED. I. BACKGROUND P la in tif f 's Complaint appears chiefly concerned with the legal representation he re c eiv e d in a state court civil matter with which he was involved. Plaintiff, who is serving a life sentence in Alabama's Department of Corrections, avers that he was the driver of a

c o n c re te truck that was involved in an automobile crash which resulted in the death of his p a ss e n g e r, Mark Lee. Complaint (Doc. #1) at 3. Plaintiff alleges that the wreck was the re su lt of numerous problems with the truck, and that all such problems were known, or s h o u ld have been known, by Plaintiff's former employer, "Concrete Incorporate." Id. at 4. P la in tif f alleges that, while incarcerated, attorneys representing Mr. Lee's family and e sta te visited with him and "probe[d] the plaintiff for information as to what happened and c a u se d the accident," and tried "to get the plaintiff to sign an erroneous or fraudulent a f f id a v it without legal advise [sic], in support of [the] Mark Lee lawsuit." Id. at 5, 6. B ec au se Plaintiff refused to cooperate without his own attorney, he alleges that Mark Lee's a tto rn e ys later returned with a "hand-picked" attorney, Defendant Scott John Hooper, who re p re se n te d to Plaintiff that he would serve as Plaintiff's attorney for purposes of the state c iv il matter, to include the prosecution of any counter or cross claims Plaintiff may have a g a in s t Lee or the other defendants in that case. Id. at 6. Plaintiff next alleges that, over a ye a r later, all attorneys returned to the prison to depose him and, prior to the deposition, they " c o a c h e d " him on how to respond to questions during the deposition. Id. Plaintiff claims th a t was the last time that he had any contact with Defendant and that he has subsequently f ile d disciplinary charges against Defendant with the Alabama State Bar. Id. at 7. II. C A U S E S OF ACTION P la in ti f f has alleged a number of claims against Defendant.1 Most of these claims Specifically, in his first complaint, Plaintiff set forth the following "cause[s] of action": 1) that Defendant had "no honest intention . . . to represent plaintiff;" 2) that Defendant
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a p p e ar based on allegations of malpractice and misrepresentation centered on state law (and p ro f e ss io n a l/eth ica l) principles. The federal jurisdictional hook asserted by Plaintiff is his c la im , pursuant to 42 U.S.C. § 1985, that Defendant "conspired" to defraud Plaintiff and o th e rw i s e deprive him of the benefit of his civil claims, and that such conspiracy was " ra c ia lly motivated." However, this claim is presented only in the original complaint and th u s appears to have been abandoned by Plaintiff when he filed his amended complaint. III. D IS C U S S IO N A. T h is matter is subject to dismissal because, in amending his complaint, P la in tiff has abandoned his only arguable federal cause of action, thus d e p r iv in g the Court of subject matter jurisdiction.

As stated above, in his original complaint Plaintiff presented numerous allegations a b o u t a conspiracy by Defendant and others to deprive Plaintiff of any rights or remedies to w h ic h he was entitled pursuant to the state court suit with which he was involved. Indeed, P la in tif f explicitly invoked 42 U.S.C. § 1985 as providing this Court with jurisdiction. See C o m p la in t (Doc. #1) at 2. However, when Plaintiff subsequently filed his Motion to Amend h is complaint (Doc. #9), Plaintiff specifically averred that he could not present a claim

"establish[ed] a conspiracy to defraud Plaintiff;" 3) that Defendant "did knowingly with malice joined [sic] with others from the very beginning to racially discriminate against the plaintiff;" 4) that Defendant did "conspire with other attorneys and parties unknown to the Plaintiff, to frustrate and sabotage the Plaintiff's cause of action;" 5) that Defendant "act[ed contrary to his duty owed to his client;" and 6) that Defendant committed perjury in his letter of reply sent to the Alabama State Bar." In Plaintiff's amended complaint, he submitted numerous "state law claims," including various allegations of "false representation," "misrepresentation," and failure to disclose certain facts, and breach of Defendant's duty to "properly raise claims or objection," "argue on behalf of Plaintiff," and "safeguard the inerest [sic] of the Plaintiff." 3

p u rs u a n t to the Federal Tort Claims Act, the Sixth Amendment, or 42 U.S.C. §§ 1985 and 1 9 8 6 . Motion (Doc. #9) at 2. Nevertheless, the Court granted Plaintiff's Motion to Amend s o that he could "present state law claims in addition to his federal claims." Order (Doc. #10) a t 1. When Plaintiff filed his amended complaint, he omitted any citation to federal law or th e Constitution and excluded his previous conspiracy allegations, although he maintained th a t the Court could exercise "Supplement Jurisdiction, formally known as Pending J u ris d ic tio n over the Plaintiff [sic] state tort claims." It is well settled that when a plaintiff voluntarily amends a complaint to remove f e d era l claims, leaving only state law claims, a federal court is divested of its subject matter ju ris d ic tio n . Pintando v. Miami-Dade Housing Agency, 501 F.3d 1241, 1243-44 (11th Cir. 2 0 0 7 ). See also Bayshore Ford Truck Sales, Inc. v. Ford Motor Co., 299 Fed. App'x 943, 9 4 4 (11th Cir. 2008).2 This is so because, generally, "`[a]n amended pleading supersedes the fo rm er pleading; the original pleading is abandoned by the amendment, and is no longer a p a rt of the pleader's averments against his adversary.'" Pintando, 501 F.3d at 1243 (quoting D r e sd n e r Bank AG, Dresdner Bank AG in Hamburg v. M/V Olympia Voyager, 463 F.3d 1 2 1 0 , 1215 (11th Cir. 2006)). Where an amended complaint lacks the "federal" allegations o f the original, "the original complaint [is] superceded and there [is] no longer a federal

It is immaterial, for purposes of this analysis, that Plaintiff was acting pro se when he amended his complaint. In Riley v. Fairbanks Capital Corp., 222 Fed. App'x 897, 898-99 (11th Cir. 2007), the Eleventh Circuit held that a district court lacked subject matter jurisdiction over a pro se plaintiff's amended complaint after the plaintiff omitted previously alleged federal claims from her amended petition.
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c la im on which the district court could exercise supplemental jurisdiction for the remaining s ta te law claims." Id. See also Rockwell Int'l Corp. v. United States, 549 U.S. 457, 473-74 (2 0 0 7 ) ("Thus, when a plaintiff files a complaint in federal court and then voluntarily amends th e complaint, courts look to the amended complaint to determine jurisdiction."). Because Plaintiff voluntarily amended his complaint and removed all of the p u rp o rte d ly "federal" allegations of the original, this Court is deprived of subject-matter ju ris d ic tio n over the complaint and it is due to be dismissed. B. A lte r n a tiv e ly , if the Court exercises subject matter jurisdiction over the c o m p la in t , it is still subject to dismissal because Plaintiff's federal a lle g a tio n s fail to state a claim pursuant to 42 U.S.C. 1985 and the Court s h o u ld not exercise jurisdiction over Plaintiff's state law claims.

Should the Court construe the amended complaint as more of a supplement to the o rig in a l,3 this matter should still be dismissed because Plaintiff's federal allegations in the o rig in a l complaint fail to state a claim for which relief can be granted. Plaintiff's allegation o f a civil conspiracy, pursuant to 42 U.S.C. § 1985, reads as follows: Defendant Scott J. Hooper, did knowingly with malice joined [sic] with others 4 f ro m the very beginning to racially discriminate against the Plaintiff, who is a black inmate, to frustrate and deprive the Plaintiff of his rightful entitlement in said law suit, such as was offered and accepted by Plaintiff Jacquelyn Lee (M a rk Lee's wife) on a date unknown by the Plaintiff and as a direct result of s a id racially motivated conspiracy, Plaintiff suffered an illegal deprivation of

Such a construction appears contrary to Plaintiff's intent as evinced by his Motion to Amend, which is discussed more fully supra.
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In his amended complaint, Plaintiff identifies two of these "other" individuals as "Attorney/INvestigator [sic] Herman Cobb and Attorney Richard Crum . . . ." Amended Complaint (Doc. #11) at 2.
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m o n e ta r y funds he was entitle[d] to, for which Plaintiff now Seeks [sic]just relief for. C o m p la in t (Doc. #1) at 10. In spirit and substance, Plaintiff repeats this general allegation i n other portions of the complaint. See, e.g., id. at 14. For the reasons that follow, this a lle g a tio n does not sufficiently state a claim pursuant to 42 U.S.C. § 1985. F o rty-tw o U.S.C. § 1985(3) provides a cause of action for a private conspiracy to d e p riv e a "person or class of persons" of certain constitutional guarantees. "The elements o f a cause of action under § 1985(3) are: (1) a conspiracy, (2) for the purpose of depriving, e ith e r directly or indirectly, any person or class of persons of the equal protection of the laws, o r of equal privileges and immunities under the laws; and (3) any act in furtherance of the c o n sp ira c y, (4) whereby a person is either injured in his person or property or deprived of any rig h t or privilege of a citizen of the United States." Trawinski v. United Technologies, 313 F .3 d 1295, 1299 (11th Cir. 2002) (quoting Childree v. UAP/GA AG CHEM, Inc., 92 F.3d 1 1 4 0 , 1146-47 (11th Cir. 1996). Section 1985(3), however, does not apply "to all tortious, c o n sp ira to ria l interferences with the rights of others." Griffin v. Breckenridge, 403 U.S. 88, 1 0 1 (1971). The "rights" protected from private encroachment by § 1985(3) are extremely n a rro w ,5 and do not include the right to effective, or even ethical, representation by a

The Supreme Court has stated that § 1985(3) "applies only to such conspiracies as are `aimed at interfering with rights . . . protected against private, as well as official, encroachment.' There are few such rights (we have hitherto recognized only the Thirteenth Amendment right to be free from involuntary servitude, and, in the same Thirteenth Amendment context, the right of interstate travel . . . .)." Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 278 (1993) (internal citations omitted) (holding that the right to obtain an abortion is not protected from private encroachment by § 1985(3)).
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re tain e d civil attorney in a state court tort matter. Thus, Plaintiff has failed to state a claim d u e to his failure to allege a conspiracy whose object was to deprive him of one of the narrow c la s s e s of rights protected from private encroachment by § 1985(3). See Trawinski, 313 F.3d a t 1299.6 Accordingly, Plaintiff's § 1985(3) claim is due to be dismissed pursuant to 28 U .S .C . § 1915(e)(2)(B)(ii). B e c a u se the only claim which arguably invokes this Court's jurisdiction is subject to s u m m a ry dismissal, the Court declines to exercise supplemental jurisdiction over any of the p u rp o rte d state law claims alleged in Plaintiff's complaint, as amended. 28 U.S.C. § 1 3 6 7 (c)(3). IV . C O N C L U SIO N It is the RECOMMENDATION of the undersigned Magistrate Judge that Plaintiff's c o m p lain t, as amended, be dismissed and judgment entered in favor of Defendants. It is f u rth e r O R D E R E D that Plaintiff is DIRECTED to file any objections to the said R e c o m m e n d a tio n on or before April 22, 2009. Any objections filed must specifically

Another fatal deficiency in Plaintiff's § 1985(3) claim is that "as long as an attorney's conduct falls within the scope of the representation of his client, such conduct is immune from an allegation of a § 1985 conspiracy." Farese v. Scherer, 342 F.3d 1223, 1232 (11th Cir. 2003) (applying the limitation in context of a § 1985(2) claim). The primary allegations supporting Plaintiff's theory of a conspiracy involving Defendant and others are that the Defendant, inter alia, "failed to file the necessary legal action," "assured the Plaintiff [] that there would be a settlement," "concealed a material fact [dismissal of a cross-claim with prejudice]," and breached various duties and obligations flowing from his attorney-client relationship with Plaintiff. All of these allegations fault Defendant for conduct committed within the scope of his representation of his client and are, therefore, insufficient to invoke § 1985 liability for Defendant.
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id e n tif y the findings in the Magistrate Judge's Recommendation to which Plaintiff objects. F riv o lo u s, conclusive or general objections will not be considered by the District Court. P la in tif f is advised that this Recommendation is not a final order of the court and, therefore, it is not appealable. F a ilu re to file written objections to the proposed findings and recommendations in the M a g is tra te Judge's report shall bar the party from a de novo determination by the District C o u rt of issues covered in the report and shall bar the party from attacking on appeal factual f in d in g s in the report accepted or adopted by the District Court except upon grounds of plain e rr o r or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th C ir. 1982); see Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982); see also Bonner v. City of Prichard, 6 6 1 F.2d 1206 (11th Cir. 1981) (en banc), adopting as binding precedent all of the decisions o f the former Fifth Circuit handed down prior to the close of business on September 30, 1 9 8 1 . It is further O R D E R E D that the stay entered by the Court on February 26, 2009, (Doc. #15) is L IF T E D to permit Plaintiff's submission of Objections to this Recommendation in c o m p lia n c e with the terms set forth herein. DONE this 9th day of April, 2009.

/ s / Wallace Capel, Jr. W A L L A C E CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

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