Atkins v. McClane

Filing 5

OPINION AND ORDER ADOPTING the 3 Final Report and Recommendation. This action is DISMISSED for lack of jurisdiction. Signed by Judge William S. Duffey, Jr on 9/27/2013. (anc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
TONY MAURICE ATKINS,
Plaintiff,
v.

1:13-cv-1363-WSD

JHON McCLANE,
Defendant.

OPINION AND ORDER
This matter is before the Court on Magistrate Judge Linda T. Walker’s Final
Report and Recommendation (“R&R”) [3].
On April 24, 2013, Plaintiff, in custody at Fulton County Jail and proceeding
pro se, filed a complaint seeming to assert a claim under 42 U.S.C § 1983.
Plaintiff alleges that his attorney, a Fulton County Public Defender, breached the
duty of confidentiality and informed Plaintiff’s family that Plaintiff is
HIV-positive. The Magistrate Judge concluded that Plaintiff has not stated a claim
over which the Court has jurisdiction, and recommended that this action be
dismissed. Plaintiff did not object to the Magistrate Judge’s R&R.
After 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) (Supp. IV 2010);
Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982) (per curiam). 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). If no party has objected to the report and recommendation, a
court conducts only a plain error review of the record. United States v. Slay, 714
F.2d 1093, 1095 (11th Cir. 1983) (per curiam). As Plaintiff did not object to the
R&R, the Court conducts a review only for plain error.
The Court agrees that Plaintiff failed to state a claim over which a federal
court has subject-matter jurisdiction. Federal courts are courts of limited
jurisdiction, and can hear only cases involving questions of federal law or cases
based on diversity of citizenship. 28 U.S.C. §§ 1331-32. Although Plaintiff
asserted a claim under 42 U.S.C. § 1983, he did not allege any facts that would
support a claim under Section 1983. Section 1983 allows plaintiffs to enforce their
federal constitutional rights against defendants who acted under color of law. 42
U.S.C. § 1983. Plaintiff here does not seek to enforce a protected federal right, and
his attorney did not act under color of law. Plaintiff’s claims against his attorney
for breach of the duty of confidentiality or of loyalty, or for the tort of invasion of
privacy, are state-law claims, and not proper under 42 U.S.C § 1983.

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Plaintiff has not asserted any other claim arising under federal law, and also
cannot invoke diversity jurisdiction because both Plaintiff and his attorney are
citizens of Georgia. The Court thus concludes it lacks subject-matter jurisdiction
over this action, and it is required to be dismissed.
Accordingly, for the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Linda T. Walker’s Final
Report and Recommendation [3] is ADOPTED and this action is DISMISSED for
lack of jurisdiction.

SO ORDERED this 27th day of September, 2013.

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