Jones v. Hubbard
Filing
5
MEMORANDUM OPINION & ORDER: 1) Claims filed pursuant to 42 USC 1983 are DISMISSED WIHT PREJUDICE. 2) State law claims are DISMISSED WITHOUT PREJUDICE. 3) Court will enter an appropriate judgment. 4) Matter is STRICKEN from the active docket. Signed by Judge Joseph M. Hood on 8/20/2014.(SCD)cc: Pro Se Pla(via US Mail)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
A. T. JONES, JR.,
)
)
)
)
)
)
)
)
)
Plaintiff,
V.
CARROLL HUBBARD,
Defendant.
***
A.
T.
Northpoint
without
Jones,
Jr.,
Training
an
attorney,
***
is
Center
***
prisoner
in
Burgin,
has
pursuant to 42 U.S.C. § 1983.
MEMORANDUM OPINION
AND ORDER
***
a
Jones
Civil No. 5: 14-342-JMH
filed
[R. 1]
incarcerated
Kentucky.
a
civil
at
the
Proceeding
rights
action
The Court has granted his
motion to proceed in forma pauperis by separate Order.
On January 12, 1998, Jones was convicted in the Circuit
Court
of
McCracken
County,
Kentucky,
of
multiple
counts
of
robbery and burglary, as well being a persistent felony offender
in the first degree.
The full term expiration date of Jones’s
sentences is January 14, 2223.1
In
his
complaint,
Jones
alleges
that
in
2010
he
paid
$5,000.00 to Carroll Hubbard, an attorney residing in Paducah,
Kentucky, to use his “political clout” to obtain leniency with
the
Kentucky
Department
of
Probation
and
Parole.
Jones
contends, however, that Hubbard made no effort to contact the
1
See http://apps.corrections.ky.gov/KOOL/Details/234066.
parole board or to obtain a reduction in the amount of time he
must serve.
Jones therefore claims that that “Hubbard failed to
uphold his end of the agreement, which causes our agreement to
become void, and to have no other legal authority.”
2-3]
[R. 1, pp.
In 2012, Jones requested a full refund of the $5,000.00 he
paid, but Hubbard returned only $1,000.00 without explanation as
to the expenditure of the remainder.
Jones indicates that he has suffered stress and depression
as a result of Hubbard’s actions.
Id. at 4.
Jones contends
that Hubbard’s actions violate the Fifth, Sixth, Eighth, and
Fourteenth
various
Amendments
sections
statutes.
of
to
the
the
United
Kentucky
States
Constitution,
Constitution
and
and
Kentucky
He seeks a refund of the remaining $4,000.00 with
interest, as well as $100,000.00 in compensatory damages for
pain and suffering.
The
Court
[R. 1, pp. 5-6, 10]
must
conduct
a
preliminary
review
of
Jones’s
complaint because he has been granted permission to pay the
filing fee in installments and because he asserts claims against
government
district
officials.
court
malicious,
must
fails
to
28
U.S.C.
§§
dismiss
any
claim
state
claim
a
1915(e)(2),
upon
that
is
which
1915A.
A
frivolous
or
relief
may
be
granted, or seeks monetary relief from a defendant who is immune
from such relief.
McGore v. Wrigglesworth, 114 F.3d 601, 607-08
(6th Cir. 1997).
The Court evaluates Jones’s complaint under a
2
more
lenient
attorney.
standard
because
he
is
not
represented
by
an
Erickson v. Pardus, 551 U.S. 89, 94 (2007); Burton v.
Jones, 321 F.3d 569, 573 (6th Cir. 2003).
At this stage, the
Court accepts the plaintiff’s factual allegations as true, and
his legal claims are liberally construed in his favor.
Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).
Jones’s
claims
that
Hubbard
violated
his
constitutional
rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments
fail as a matter of law, and must be dismissed with prejudice.
To
successfully
assert
a
claim
under
42
U.S.C.
§
1983,
a
plaintiff must establish that the defendant acted “under color
of state law,” and that the defendant’s conduct deprived the
plaintiff of rights secured under federal law.
Cf. Fritz v.
Charter Tp. of Comstock, 592 F.3d 718, 722 (6th Cir. 2010).
The
amendments
found
in
the
Bill
of
Rights
proscribe
certain conduct by officials acting on behalf of the government.
But wholly private conduct by ordinary citizens, no matter how
discriminatory or wrongful, does not violate the Constitution,
and is not actionable under Section 1983.
American Mfrs. Mut.
Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999).
Therefore
courts have consistently held that attorneys retained by the
plaintiff who performed only the normal functions of private
counsel are not “state actors” who may be sued under § 1983.
Polk Co. v. Dodson, 454 U.S. 312 (1981); Cudejko v. Goldstein,
3
22 F. App’x 484, 485 (6th Cir. 2001).
Jones’s constitutional
claims therefore fail as a matter of law, and must be dismissed.
The Court will also dismiss Jones’s claims arising under
state law, but it will do so without prejudice to his right to
reassert them in a state court action if he chooses to do so.
Jones
essentially
malpractice,
complains
although
his
that
legal
Hubbard
claims
committed
assert
that
legal
Hubbard
breached their contract, violated the Kentucky constitution and
various Kentucky statutes, and perhaps that Hubbard committed
the
tort
of
outrage.
But
the
Court
lacks
subject
matter
jurisdiction over these claims because they present no federal
question
under
28
U.S.C.
§
1331,
nor
are
the
parties
(both
residents of Kentucky) diverse in their citizenship as required
by 28 U.S.C. § 1332.
Cf. McCoy v. Stokes, No. 2:12-CV-655, 2012
WL 3929832, at *3 (S.D. Ohio Sept. 10, 2012).
Further,
because
the
federal
claims
asserted
in
the
complaint have been dismissed so early in the proceedings, the
Court declines to exercise supplemental jurisdiction over them.
28
U.S.C.
§ 1367(c)(3)
provides
that
a
district
court
may
“decline to exercise supplemental jurisdiction over a claim [if]
the district court has dismissed all claims over which it has
original jurisdiction ...”).
dismissed
all
concludes
that
of
the
the
Where, as here, the Court has
plaintiff’s
balance
of
federal
judicial
4
claims,
economy,
the
Court
convenience,
fairness,
and
jurisdiction.
comity
all
point
toward
declining
supplemental
Carnegie–Mellon University v. Cohill, 484 U.S.
343 (1988); Musson Theatrical, Inc. v. Federal Exp. Corp., 89
F.3d 1244, 1255 (6th Cir. 1996) (noting that “[a]fter a 12(b)(6)
dismissal, there is a strong presumption in favor of dismissing
supplemental claims.”).
The Court will therefore dismiss the
plaintiff’s state law claims without prejudice.
Accordingly, IT IS ORDERED that:
1.
Jones’s claims filed pursuant to 42 U.S.C. § 1983 are
DISMISSED WITH PREJUDICE.
2.
Jones’s state law claims, including but not limited to
breach of contract and emotional distress, are DISMISSED WITHOUT
PREJUDICE.
3.
The Court will enter an appropriate judgment.
4.
This matter is STRICKEN from the active docket.
This the 20th day of August, 2014.
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