Hanson v. Johnson

Filing 19

ORDER AND OPINION granting 12 Defendant Johnson's Motion to Dismiss for Failure to State a Claim; denying 18 Plaintiff Hanson's Motion for Default Judgment. Plaintiff may amend his Complaint within 14 days of this Order ( Amended Pleadings due by 4/25/2017) if he has a good faith basis for doing so. Entered by Chief Judge James E. Shadid on 4/11/2017. (RK, ilcd)

E-FILED

Wednesday, 12 April, 2017 11:33:54 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
RONALD E. HANSON,
Plaintiff,
v.
MARK D. JOHNSON,
Defendant.

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Case No. 17-1011

ORDER AND OPINION
This matter is now before the Court on Defendant Johnson’s Motion [12] to Dismiss and
Plaintiff Hanson’s Motion [18] for Default Judgment. For the reasons set forth below,
Defendant’s Motion [12] is GRANTED and Plaintiff’s Motion [18] is DENIED. Plaintiff may
amend his Complaint within 14 days of this Order if he has a good faith basis for doing so.
BACKGROUND
On January 11, 2017, Plaintiff Hanson filed a pro se Complaint, and later an Amended
Complaint, against Defendant Johnson alleging that Defendant violated his Illinois and federal
constitutional rights by wrongfully possessing over $610,000 worth of Plaintiff’s property and
goods. Both Plaintiff and Defendant are citizens of Illinois. Plaintiff alleges that Johnson, who he
retained in 2010 to represent him in connection with a criminal felony case and two civil cases in
Illinois state court, absconded with property given to Johnson as collateral after Johnson
withdrew from representing Hanson on July 15, 2010.
Plaintiff’s Amended Complaint alleges that Johnson was suspended from the practice of
law by the Illinois Attorney Registration and Disciplinary Committee in 2016 for conduct
relating to his representation of Hanson. Plaintiff has a similar state court action against Johnson
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pending in McLean County. Hanson is currently incarcerated at Dixon Correctional Center in
Dixon, Illinois. Defendant Johnson’s Motion asserts that this action must be dismissed because
this Court lacks diversity jurisdiction to hear Hanson’s state law claims, Hanson has not alleged a
federal cause of action, and Defendant is not a state or federal actor. This Order follows.
LEGAL STANDARD
Courts have traditionally held that a complaint should not be dismissed unless it appears
from the pleadings that the plaintiff could prove no set of facts in support of her claim which
would entitle her to relief. See Conley v. Gibson, 355 U.S. 41 (1957); Gould v. Artisoft, Inc., 1
F.3d 544, 548 (7th Cir. 1993). Rather, a complaint should be construed broadly and liberally in
conformity with the mandate in the Federal Rules of Civil Procedure 8(e). More recently, the
Supreme Court has phrased this standard as requiring a showing sufficient “to raise a right to
relief beyond a speculative level.” Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007).
The claim for relief must be “plausible on its face.” Id.; Ashcroft v. Iqbal, 129 S.Ct. 1937, 1953
(2009). For purposes of a motion to dismiss, the complaint is construed in the light most
favorable to the plaintiff; its well-pleaded factual allegations are taken as true. See Albright v.
Oliver, 510 U.S. 266, 268 (1994); Hishon v. King & Spalding, 467 U.S. 69 (1984); Lanigan v.
Village of East Hazel Crest, 110 F.3d 467 (7th Cir. 1997); M.C.M. Partners, Inc. v. AndrewsBartlett & Assoc., Inc., 62 F.3d 967, 969 (7th Cir. 1995); Early v. Bankers Life & Cas. Co., 959
F.2d 75 (7th Cir. 1992).
ANALYSIS
Federal courts are courts of limited jurisdiction. Section 1332(a)(1) confers upon district
courts jurisdiction to hear state law claims when complete diversity of citizenship exists between
the parties: “The district courts shall have original jurisdiction of all civil actions where the

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matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is
between . . . citizens of different States.” 28 U.S.C. § 1332. Here, the Court lacks diversity
jurisdiction because Plaintiff and Defendant are both citizens of Illinois. Thus, Plaintiff’s
Complaint must assert a claim that arises under federal law or the United States Constitution. See
28 U.S.C. § 1331. Under the well-pleaded complaint rule, a suit arises under federal law “only
when the plaintiff's statement of his own cause of action shows that it is based upon [federal
law].” Vaden v. Discover Bank, 556 U.S. 49, 60 (2009).
Hanson’s Amended Complaint does not indicate which jurisdictional statute or
constitutional provision he relies on to establish federal question jurisdiction. He did not check
the § 1983 box for actions against state officials or the § 1331 box for actions against federal
officials; rather, he checked “other” and wrote “suit against an attorney that stole from me and
violated my Illinois and US constitutional rights.” Although Hanson alleges that Johnson
violated his constitutional rights, he has not alleged that Johnson was acting on behalf of the
state. Actions under § 1983 require the defendants to be acting under color of state law, and “a
public defender does not act under color of state law when performing a lawyer’s traditional
functions as counsel to a defendant in a criminal proceeding.” Polk County v. Dodson, 454 U.S.
312, 325 (1981); Sceifers v. Trigg, 46 F.3d 701, 704 (7th Cir. 1995) (“Indeed, the actions of
Sceifers’ deputy public defenders and appointed counsel, which caused the delay, do not
constitute state action.”). Here, Plaintiff attempts to assert claims against his private counsel.
However, a privately retained attorney is not a state actor within the context of § 1983. Sceifers,
45 F.3d at 704. Thus, Plaintiff cannot state a claim under § 1983 because the conduct complained
of is outside the realm of state action. See Dudley v. Strong Law Offices, Case No. 15-1089 (C.D.
Ill. March 2, 2015); see also Wilson v. Warren County, No. 11-4078 (C.D. Ill. Mar. 30, 2015)

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(finding that Johnson and Hanson, defendants in an action apparently based on the same or
similar facts asserted here, were not state actors).
Although Hanson has not moved to join additional defendants, he attaches to his
Amended Complaint parts of a form complaint where he lists as Defendants the State of Illinois,
two Warren County judges, a Warren County State’s Attorney, Sherriff, and Detective. That
portion of his Amended Complaint claims that the Warren County actors maliciously prosecuted
Hanson and attacks the state court conviction and sentence for which he is currently incarcerated.
It is unclear whether Hanson intended to assert claims against the Warren County actors, or
whether their inclusion was intended as support for his claims against Johnson.
The Eleventh Amendment forbids suits for monetary damages brought against a state in
federal court. Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984). Here,
assuming Hanson is asking a federal court to join the State of Illinois as a Defendant in an action
to enforce Illinois law, that claim would be barred by the Eleventh Amendment. See Pennhurst,
465 U.S. at 106.(“[I]t is difficult to think of a greater intrusion on state sovereignty than when a
federal court instructs state officials on how to conform their conduct to state law. . . . [s]uch a
result conflicts directly with the principles of federalism that underlie the Eleventh
Amendment.”). Thus, sovereign immunity under the Eleventh Amendment prohibits the joinder
of the State of Illinois as a necessary party to this action.
The Court need not analyze whether Hanson can sue the individual Warren County actors
at this juncture because he has not moved to join them to this lawsuit. Presumably, those actors
would be entitled to qualified immunity. However, Hanson’s Motion for Default Judgment and
his response to Johnson’s Motion to Dismiss do not contain any reference to anyone other than
Defendant Johnson, leading the Court to believe that Hanson’s claim is against Defendant

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Johnson alone. See also Amended Complaint at 3 (stating, under the “Exhaustion of
Administrative Remedies” section, that this lawsuit does not involve state or federal actors). The
Court notes, however, that if Hanson wishes to challenge his state court conviction or sentence,
the appropriate vehicle for doing such would be through state or federal habeas corpus
proceedings, not a civil suit. See Heck v. Humphrey. 512 U.S. 477, 486-87 (1994); 28 U.S.C. §
2254.
In sum, Hanson’s Amended Complaint fails to establish that his claim is based upon
federal law. Vaden v. Discover Bank, 556 U.S. 49, 60 (2009). Hanson attempts to assert state law
claims against Johnson, but this court does not have diversity jurisdiction to hear such claims
because Plaintiff and Defendant are both citizens of Illinois. And although Hanson alleges that
Johnson violated his constitutional rights, he cannot establish federal question jurisdiction
because Johnson was not acting as a state or federal official. Accordingly, Plaintiff’s Amended
Complaint must be dismissed for lack of subject-matter jurisdiction. Based on the facts alleged in
the Amended Complaint, it is unlikely that Hanson’s allegations could fall within this Court’s
federal question jurisdiction. However, if Plaintiff has a good-faith basis for doing so, he may file
an amended complaint within 14 days of this Order curing the deficiencies identified above.
Finally, Plaintiff’s Motion for Default Judgment is denied because Defendant timely responded
to the Amended Complaint. Plaintiff’s assertion that he did not receive an answer or other
responsive pleading from Defendant is contradicted by his own response to Defendant’s motion.
Plaintiff remains responsible for the full filing fee of $350. The agency having custody of
Plaintiff shall make monthly payments from Plaintiff’s trust fund account to the Clerk of Court
each time Plaintiff’s account exceeds $10, until the filing fee is paid in full. If Plaintiff does not
amend his Complaint within 14 days of this Order, judgment will enter in favor of Defendant. If

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Plaintiff wishes to appeal this dismissal, he must file a notice of appeal with this Court within 30
days of the entry of judgment. Fed. R. App. P. 4(a). A motion for leave to appeal in forma
pauperis should set forth the issues Plaintiff plans to present on appeal. See Fed. R. App. P.
24(a)(1)(C). If Plaintiff does choose to appeal, he will be liable for the appellate filing fee
regardless of the outcome of the appeal.

CONCLUSION
For the reasons stated above, Defendant Johnson’s Motion [12] to Dismiss is GRANTED
and Plaintiff Hanson’s Motion [18] for Default Judgment is DENIED. Plaintiff may amend his
Complaint within 14 days of this Order if he has a good faith basis for doing so.

Signed on this 11th day of April, 2017.
s/ James E. Shadid
James E. Shadid
Chief United States District Judge

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