Cheney v. Harwood et al

Filing 10

///ORDER denying 9 Motion to Amend. Plaintiffs federal claims are dismissed for failure to state a plausible claim for relief. The court declines to exercise supplement jurisdiction as to any state law claims, pursuant to 28 U.S.C. §1367(c)(3), which are dismissed without prejudice. Clerk to enter judgment andclose the case. So Ordered by Judge Joseph A. DiClerico, Jr.(dae)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE

Michael Cheney
v.

Civil No. 13-cv-067-JD

Wade Harwood and New Hampshire
Supreme Court Attorney Discipline Office
O R D E R
On July 18, 2013, the court issued a decision following
preliminary review, pursuant to 28 U.S.C. §§ 1915(e)(2) and
1915A(a), concluding that Michael Cheney failed to state a
plausible federal claim on which relief might be granted and
declining to exercise supplemental jurisdiction as to any state
law claims, pursuant to 28 U.S.C. § 1367(c)(3).

Document no. 8.

Cheney was given fourteen days to file an amended complaint that
would state a plausible federal claim to relief to avoid
dismissal of the case.

Cheney has filed a motion to amend.

In the complaint, Cheney brought claims against his former
counsel, from the New Hampshire Public Defender’s Office, who
represented Cheney in state criminal proceedings.

He also made

allegations against the New Hampshire Supreme Court Attorney
Discipline Office.

The court held that Cheney did not state a

federal claim because counsel was not a state actor for purposes

of 42 U.S.C. § 1983 and no plausible federal claim was alleged
against the Discipline Office.
Although Cheney’s motion is captioned as a motion to amend,
he does not propose any amendment to his complaint.

Instead, he

asks the court to reconsider the decision on preliminary review,
arguing that his § 1983 claim against his counsel should be
allowed to proceed.

In support, he cites Harlow v. Fitzgerald,

457 U.S. 102 (1982); Duncan v. Louisiana, 391 U.S. 145 (1968);
and Guinn v. United States, 238 U.S. 347 (1915).
In Harlow, the Supreme Court examined absolute and qualified
immunity.

457 U.S. at 809-20.

In Duncan, the Supreme Court held

that a criminal defendant has a Sixth Amendment right to a jury
trial for serious crimes.

391 U.S. at 159-61.

In Guinn, the

Court considered the constitutionality, under the Fifteenth
Amendment to the United States Constitution, of Oklahoma voting
laws.

238 U.S. at 362-68.

Because the cited cases do not relate

to Cheney’s claims against his counsel or the Discipline Office,
he provides no basis for reconsideration of the decision on
preliminary review.

Conclusion
For the foregoing reasons, the plaintiff’s motion to amend
(document no. 9) is denied.
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Pursuant to preliminary review, as decided in the order
issued on July 18, 2013, (document no. 8), the plaintiff’s
federal claims are dismissed for failure to state a plausible
claim for relief.

The court declines to exercise supplement

jurisdiction as to any state law claims, pursuant to 28 U.S.C. §
1367(c)(3), which are dismissed without prejudice.
The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.

____________________________
Joseph A. DiClerico, Jr.
United States District Judge
July 30, 2013
cc:

Michael G. Cheney #11387, pro se

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