Magee v. Hammond-Jackson et al

Filing 12

ORDER ADOPTING 8 REPORT AND RECOMMENDATIONS: IT IS ORDERED that Plaintiff's 10 Objections are OVERRULED and the Magistrate Judge's 8 Report and Recommendations are ADOPTED, as set forth in document. IT IS FURTHER ORDERED that Plai ntiff's claims are DISMISSED WITHOUT PREJUDICE for lack of subject matter jurisdiction. IT IS FURTHER ORDERED that Plaintiff's 11 Request for Subpoenas is DISMISSED AS MOOT as unnecessary. Signed by Judge Ivan L.R. Lemelle on 6/5/2018.(jls)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BOBBY MAGEE

CIVIL ACTION

VERSUS

NO. 17-15754

MARGARET HAMMOND-JACKSON, ET AL.

SECTION “B”(1)

ORDER AND REASONS
The Magistrate Judge issued a Report and Recommendations
recommending that the above-captioned matter be dismissed without
prejudice for lack of subject matter jurisdiction, pursuant to 28
U.S.C.

§ 1915(e)(2)(B).

Rec.

Doc.

8.

Plaintiff

timely

filed

objections. Rec. Doc. 10. For the reasons discussed below,
IT IS ORDERED that Plaintiff’s Objections (Rec. Doc. 10) are
OVERRULED and the Magistrate Judge’s Report and Recommendations
(Rec. Doc. 8) are ADOPTED.
IT IS FURTHER ORDERED that Plaintiff’s claims (Rec. Doc. 1)
are

DISMISSED

WITHOUT

PREJUDICE

for

lack

of

subject

matter

jurisdiction.
IT

IS

FURTHER

ORDERED

that

Plaintiff’s

“Request

for

Subpoenas” (Rec. Doc. 11) is DISMISSED AS MOOT as unnecessary.
Plaintiff was employed by Tulane University as a police
officer. See Magee v. Tulane Univ. Bd. of Adm’rs, No. 13-6598,
Rec. Doc. 1-3 (E.D. La. Dec. 6, 2013). In 2013, Plaintiff sued
Tulane for age and race discrimination under Title VII of the Civil
Rights Act, the Age Discrimination in Employment Act (ADEA), and

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Louisiana state civil rights statutes. See id. Tulane timely
removed the case to federal court. See Magee, No. 13-6598, Rec.
Doc. 1. In 2014, Plaintiff moved to dismiss his federal law claims
with prejudice and remand the case to state court. See Magee, No.
13-6598, Rec. Doc. 28. Plaintiff’s motion was granted; his federal
law claims were dismissed with prejudice and the case was remanded
to state court. See Magee, No. 13-6598, 2014 WL 4545947.
In December 2017, Plaintiff filed the instant case, asserting
federal civil rights claims against Tulane and legal malpractice
claims

against

Margaret

Hammond-Jackson,

the

attorney

who

represented Plaintiff in his 2013 case. See Rec. Doc. 1. Plaintiff
sought

to

proceed

in

forma

pauperis.

See

Rec.

Doc.

2.

The

Magistrate Judge granted Plaintiff’s motion to proceed in forma
pauperis, but ordered Plaintiff to file additional briefing about
why his case should not be dismissed, pursuant to 28 U.S.C.
§ 1915(e)(2)(B), for lack of subject matter jurisdiction. See Rec.
Doc. 3. Plaintiff timely filed a response. See Rec. Doc. 4. The
Magistrate

Judge

then

issued

her

Report

and

Recommendation,

concluding that Plaintiff’s case should be dismissed for lack of
subject matter jurisdiction because any federal law claims were
previously dismissed with prejudice, legal malpractice claims
arise under state law, and the parties are not diverse. See Rec.
Doc. 8. Plaintiff timely filed objections. See Rec. Doc. 10.

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The objected-to portions of a Magistrate Judge’s report and
recommendation

are

subject

to

de

novo

review

when

the

recommendation is dispositive of a plaintiff’s claims. See 28
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Plaintiff’s objections
are not specific and primarily reiterate the claims underlying his
Complaint. See Rec. Doc. 10. Regardless, the Magistrate Judge’s
conclusion that Plaintiff’s claims should be dismissed for lack of
subject

matter

jurisdiction

is

legally

correct

and

factually

supported.
When, as here, a plaintiff seeks to proceed in forma pauperis,
a “court shall dismiss the case at any time if the court determines
that . . . the action . . . is frivolous . . . .” 28 U.S.C.
§ 1915(e)(2). A case is frivolous when there is no subject matter
jurisdiction. See Neitzke v. Williams, 490 U.S. 319, 325 (1989);
Nixon v. Attorney General of Tex., 537 F. App’x 512 (5th Cir.
2013); Williams v. Dorsey, 412 F. App’x 710 (5th Cir. 2011). There
is no federal question jurisdiction because Plaintiff’s claims
under Title VII and the ADEA were asserted in a previous lawsuit
and dismissed with prejudice in 2014. See Magee, No. 13-6598, 2014
WL 4545947. Plaintiff’s claims against his former attorney do not
invoke federal question jurisdiction because they relate only to
alleged legal malpractice, not any issue of federal law. See Singh
v.

Duane

Morris

LLP,

538

F.3d

334,

337-40

(5th

Cir.

2008).

Plaintiff has not established diversity jurisdiction because all
3

available information indicates that Plaintiff and Defendants are
residents of Louisiana. See 28 U.S.C. § 1332.
New Orleans, Louisiana, this 5th day of June, 2018.

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE

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