BROWN v. DUFFETT, ESQ

Filing 18

ORDER DISMISSING CASE By MAGISTRATE JUDGE JOHN H. RICH III. (nrg)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE

JESSICA M. BROWN,
Plaintiff,
v.
NEALE DUFFETT, ESQ.,
Defendant

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No. 2:15-cv-25-JHR

ORDER DISMISSING CASE
FOR LACK OF SUBJECT MATTER JURISDICTION1
The plaintiff, who is proceeding pro se, has filed a motion to overturn her state court
conviction, to subpoena evidence from the Portland Police Department, and to obtain evidence in
the custody of James Cloutier, Esq., counsel for the defendant. See Motion to Overturn Conviction
(ECF No. 10). She has also filed a motion in limine to preclude three Portland police officers from
testifying in this case, see Motion for In Limine (ECF No. 11), as well as a motion to amend her
complaint, see Amendment of The Pleadings: as follows (“Motion To Amend”) (ECF No. 15).
I determine that the court is without power to act on the motions, and that the case must
dismissed, for lack of subject matter jurisdiction.
I. Applicable Legal Standard
“Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of
Am., 511 U.S. 375, 377 (1994). “They possess only that power authorized by Constitution and
statute, which is not to be expanded by judicial decree.” Id. (citation omitted). “It is to be

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The parties have consented to have me conduct all proceedings in this matter, including the entry of judgment. ECF
No. 9.

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presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the
contrary rests upon the party asserting jurisdiction.” Id. (citations omitted).
In his answer to the complaint, the defendant raised lack of subject matter jurisdiction as
an affirmative defense. See Answer to Complaint (ECF No. 6), Defenses/Affirmative D[e]fenses,
¶¶ 1-2. However, even if he had not, the court has an independent duty to assure itself of the
existence of subject matter jurisdiction. See, e.g., Spooner v. EEN, Inc., 644 F.3d 62, 67 (1st Cir.
2011) (“A court is duty-bound to notice, and act upon, defects in its subject matter jurisdiction sua
sponte.”).
II. Factual Background
The plaintiff complains that, following a bench trial in the Maine Superior Court,
Cumberland County, on December 21, 2007, she was wrongly convicted of criminal threatening
with a dangerous weapon as a result of the defendant’s malfeasance as her court-appointed attorney
in that matter. See Pro Se Civil Rights Violation Complaint To Ask Federal Court To Review
Possibility of Such Violation (“Complaint”) (ECF No. 1) at Page ID ##9-10; see also Answer
¶ 1(b)-(c).
She alleges that she was not allowed to defend herself in the courtroom against the
defendant’s “repeated lies about me being a mentally defected human being[,] which I am not and
have never been” and that “in essence I was not allowed . . . a defense because Neale Duffett did
everything in his power to smear my name with lies of mental retardation or other mental defect
which was not true to ensure that Portland police would come out smelling like a rose.” Complaint
at Page ID #9. She asserts, “My not being able to fire my court appointed lawyer Neale Duffett[,]
who was acting as a prosecutor in my case and not defending[,] is most disturbing if not outright

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illegal in itself and led me to waive my right to a jury trial because I knew Neale Duffet[t] was
going to bold faced lie to the court with no medical proof that I was ‘wacko.’” Id. at Page ID #10.
She alleges violation of unspecified constitutional rights because (i) she was not deposed
prior to her bench trial, (ii) she was not allowed to fire the defendant as her attorney, (iii) a
newspaper printed slander about her, (iv) she was not permitted to wear street clothes during the
bench trial, (v) she was incarcerated for two-and-a-half years in the Cumberland County Jail and
six months in prison because she refused counseling for an illness that she did not have, and (vi) her
religious views were not respected when the bench trial was held on the Winter Solstice, a major
Pagan holiday. See id. at Page ID #11.
She seeks relief in the form of the overturning of her conviction and “some type of
settlement or compensation[.]” Id. at Page ID #13.
III. Discussion
“Generally, the courts recognize that a pro se plaintiff does not have the same education
and training as an attorney, and therefore grant a pro se plaintiff some latitude in [her] complaint.”
Francois v. Parish, Civil Action No. 14-338, 2014 WL 7140206, at *2 (E.D. La. Dec. 12, 2014).
“However, even after a liberal reading afforded for pro se plaintiffs, the complaint must allege
sufficient facts from which the court can determine the existence of subject matter jurisdiction.”
Id. (citation and internal quotation marks omitted). The plaintiff fails to do so here.
The plaintiff invokes federal-question subject matter jurisdiction, styling her complaint as
one for redress of civil rights/constitutional violations. Although she “does not cite the federal
civil rights statute, 42 U.S.C. § 1983, because [she] seeks a remedy for an alleged violation of [her]
constitutional rights pursuant to state action, [her] claim is necessarily a section 1983 claim.”
Nielsen v. Maine Unemployment Ins. Comm’n, No. 1:14-cv-00300-JAW, 2014 WL 6632976, at

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*2 (D. Me. Nov. 21, 2014) (footnote omitted). Yet, for several reasons, the court lacks subject
matter jurisdiction, either through the existence of a federal question or diversity of citizenship.
First, the court has no power to grant the plaintiff the requested relief of vacating her 2007
state court conviction. To obtain such relief, the plaintiff’s “sole remedy is to file a Petition for a
Writ of Habeas Corpus and fulfill all of the requirements for relief under 28 U.S.C. § 2254,
including exhaustion of state court remedies and time limitations.” Thomas v. Reisch, No. 5:14
CV 1372, 2014 WL 6687248, at *2 (N.D. Ohio Nov. 26, 2014). Accord Drewry v. Maine, No.
1:14-mc-00187-JAW, 2014 WL 4987938, at *1 n.2 (D. Me. Oct. 7, 2014) (“The Supreme Court
has noted that Congress has determined that habeas corpus is the appropriate remedy for state
prisoners attacking the validity of the fact or length of their confinement.”) (citation and internal
punctuation omitted).
“A Complaint seeking relief under 42 U.S.C. § 1983 is not a permissible alternative to a
Petition for Writ of Habeas Corpus.” Reisch, 2014 WL 6687248, at *2. Yet, even if I were to treat
the plaintiff’s complaint as a habeas petition, “it fails for the reason that [she] was not ‘in custody’
at the time it was filed.” Bryant v. Kansas, No. 13-3153-SAC, 2014 WL 220488, at *1 (D. Kan.
Jan. 21, 2014); Post-Conviction Dismissal Order (“Post-Conviction Order”), Brown v. State,
Docket No. CR-14-4384 (Me. Sup. Ct. Aug. 11, 2014), contained in Exh. 1 to Complaint, at 2
(noting that plaintiff had served the entirety of her sentence). “It is well established that the ‘in
custody’ language of § 2254 is jurisdictional.” Bryant, 2014 WL 220488, at *1 (citation, internal
punctuation, and footnote omitted).
Second, the court has no power to grant the requested relief of monetary damages stemming
from the allegedly wrongful conviction. Pursuant to Heck v. Humphrey, 512 U.S. 477 (1994),
“when a section 1983 claimant seeks to recover damages for allegedly unconstitutional conviction

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or imprisonment, [s]he must prove that the conviction or sentence has been reversed on direct
appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court’s issuance of a writ of habeas corpus.”
Figueroa v. Rivera, 147 F.3d 77, 80 (1st Cir. 1998) (citation and internal quotation marks omitted).
See also, e.g., Goodwin v. Clark, No. 1:13-cv-00234-JAW, 2014 WL 4352012, at *6 (D. Me. Aug.
29, 2014) (“[W]hen a state prisoner seeks damages in a § 1983 suit, the district court must consider
whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction
or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that
the conviction or sentence has already been invalidated.”) (citation and internal quotation marks
omitted).
The plaintiff does not allege that her conviction or sentence has been invalidated. To the
contrary, she states that she “tried to rectify this civil rights violation in Cumberland County Court
in the State of Maine and failed[.]” Complaint at Page ID #13. The State Post-Conviction Order
corroborates that the Superior Court, Cumberland County, dismissed two petitions that she filed
for post-conviction review. See State Post-Conviction Order.
Third, even if I were to construe the complaint as seeking monetary damages pursuant to
section 1983 for something other than the plaintiff’s allegedly wrongful conviction, the court has
no power to grant such relief against this defendant. The court can grant such relief only against
persons “acting under color of state law.” Ferrell v. Smith, C/A No. 2:13-498-CMC-BM, 2013
WL 1680558, at *4 (D.S.C. Apr. 2, 2013) (rec. dec., aff’d Apr. 17, 2013) (citation and internal
quotation marks omitted). “The under-color-of-state-law element of § 1983 excludes from its
reach merely private conduct, no matter how discriminatory or wrongful.” Young v. Penobscot

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Bay Hosp., No. 2:11-cv-00114-JAW, 2011 WL 1598376, at *2 (D. Me. Apr. 26, 2011) (rec. dec.,
aff’d May 6, 2011) (citation and internal quotation marks omitted).
“Defense attorneys, whether compensated by the State or retained by a client, do not act
under color of state law when they perform a lawyer’s traditional functions as counsel to the
accused in a criminal proceeding.” Floyd v. County of Kent, 454 Fed. Appx. 493, 497 (6th Cir.
2012). See also, e.g., Ferrell, 2013 WL 1680558, at *4 (“[I]t is settled law that an attorney,
whether retained, court-appointed, or a public defender, does not act under color of state law,
which is a jurisdictional prerequisite for any civil action brought under 42 U.S.C. § 1983.”)
(emphasis omitted).2
Fourth, even assuming that the complaint sets forth one or more plausible claims pursuant
to state law, the plaintiff fails to establish the existence of complete diversity of citizenship, as is
required to proceed on that theory of federal jurisdiction. See 28 U.S.C. § 1332(a); Picciotto v.
Continental Cas. Co., 512 F.3d 9, 17 (1st Cir. 2008) (“The statutory grant of federal jurisdiction
in diversity cases gives district courts “original jurisdiction of all civil actions where the matter in
controversy is between citizens of different States.”) (citation and internal punctuation omitted).

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“Individuals who would otherwise not be considered state actors are properly considered to have acted under color
of state law when they conspire with state actors to deprive an individual of their federal rights in violation of § 1983.”
Walker v. Siebrasse, Civil No. 14-5090-JLV, 2015 WL 2130503, at *5 (D.S.D. May 7, 2015) (citation and internal
punctuation omitted). “Allegations of conspiracy, however, must be pled with sufficient specificity and factual
support to suggest a meeting of the minds.” Id. (citation and internal punctuation omitted). The plaintiff’s
characterizations of the defendant as acting as a prosecutor and/or in the interests of the police do not meet this
standard. See, e.g., Steele v. Hall, No. 1:13 CV 1598, 2013 WL 4012769, at *2 (N.D. Ohio Aug. 6, 2013) (“conclusory
allegations” in pro se plaintiff’s complaint that his counsel “failed to represent [him] in a competent manner by filing
frivolous motions and conspired with the state prosecutor would not survive a Rule 12(b)(6) motion to dismiss”; the
complaint contained “no allegations from which it could be reasonably inferred that defendant [counsel’s] alleged
nonfeasance was attributable to the state”); Harrington v. Wilson, Civil Action No. 05-cv-01858-EWN-MJW, 2006
WL 2724094, at *13 (D. Colo. Sept. 21, 2006), aff’d but remanded to provide for dismissal without prejudice, 242
Fed. Appx. 514 (10th Cir. 2007) (conclusory allegations of conspiracies, amounting at best to “rank speculation and
innuendoes[,]” were insufficient to demonstrate that private actors, including an attorney, could be held liable pursuant
to section 1983).

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She alleges that both she and the defendant reside in Portland, Maine. See Complaint at Page ID
#1.
“In some circumstances, if it appears that a pro se litigant might be able to plead adequate
facts if he or she better understood the applicable law, the Court may provide some opportunity to
understand what the law requires, along with an opportunity to supplement the pleadings, all in
order to avoid a scenario in which a pro se plaintiff’s claims are summarily dismissed with
prejudice based on a failure to plead sufficient facts.” Cote v. Barnhart, No. 1:12-cv-00081-NT,
2012 WL 1038918, at *1 (D. Me. Mar. 23, 2012) (rec. dec., aff’d June 20, 2012). See also, e.g.,
Hughes v. Jansen, No. 2:11-cv-01856-KJM-EFB, 2014 WL 4976230, at *5 (E.D. Cal. Sept. 30,
2014) (granting pro se plaintiff leave to amend complaint to cure deficiency of lack of subject
matter jurisdiction when court could not “say that plaintiff will be unable to cure the jurisdictional
problems with his complaint”). That is not the case here. As discussed above, the court is without
power, as a matter of law, to award the plaintiff the relief that she seeks – the overturning of her
state court conviction and an award of damages on account of that wrongful conviction.
In these circumstances, the court is not obliged to afford the plaintiff an opportunity to
avoid dismissal by amending her complaint to add new claims and/or new parties that might confer
subject matter jurisdiction. Nor does the plaintiff’s Motion To Amend cure the defect. She moves
to amend her complaint to add a new claim against the defendant: that she “was persecuted by the
police and the legal system because she was physically disabled at the time of shooting and on
disability.” ECF No. 15 at [1]. However, construing this as a claim of violation of the Americans
with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., it fails as a matter of law. An individual
cannot be held liable pursuant to the ADA. See, e.g., Stile v. Somerset Cnty., No. 1:13-cv-00248JAW, 2015 WL 667814, at *9 (D. Me. Feb. 17, 2015) (Title II of the ADA); Velez-Miranda v.

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Puerto Rico, Civil No. 13-1371(PG), 2014 WL 4063326, at *2 (D.P.R. Aug. 15, 2014) (Title I of
the ADA). A futile claim cannot cure a jurisdictional defect. See, e.g., Blanchard v. Northway
Bank, Civil No. 13-cv-119-JL, 2013 WL 1775460, at *2 (D.N.H. Apr. 25, 2013).
IV. Conclusion
For the foregoing reasons, the Complaint is DISMISSED without prejudice for lack of
subject matter jurisdiction.

Dated this 1st day of July, 2015.

/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge

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