Schrock v. Giulitto Law Firm LLC et al

Filing 6

Memorandum Opinion: This action is dismissed pursuant to 28 U.S.C. Section 1915(e). Pursuant to 28 U.S.C. Section 1915(a)(3), an appeal from this decision could not be taken in good faith. (Related Doc. No. 1 ). Judge Sara Lioi on 10/26/2017. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

MATTHEW M. SCHROCK,
PLAINTIFF,

vs.

GIULITTO LAW FIRM LLC et al,
DEFENDANTS.

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CASE NO. 5:17cv425
JUDGE SARA LIOI
MEMORANDUM OPINION

Pro se plaintiff, Matthew M. Schrock, filed this action against defendants, Diana J. Prehn
and the Giulitto Law Office, LLC. In the complaint, plaintiff alleges that Prehn failed to investigate
the criminal charges brought against him in Portage County Common Pleas Court Case No.
2013CR00164, and withheld information that would have exonerated him. He seeks $7,800,000.00
in damages.

I.

BACKGROUND
Plaintiff alleges that in 2013, Prehn was employed by the Giulitto Law firm and represented

him in criminal proceedings in the Portage County Court of Common Pleas, Case No.
2013CR00164. He contends Prehn knew he was innocent of the felony charges but failed to
conduct an investigation. He states she did not attempt to present a defense and relied solely on
the testimony presented by the State. He alleges she did not move for a change of venue or ask the

judge to recuse him or herself due to prejudice. He claims she withheld information that would
have resulted in the dismissal of his case. Plaintiff asserts, generally, that she abused attorney/client
rules. He seeks monetary damages.
II.

STANDARD OF REVIEW
Although pro se pleadings are liberally construed, Boag v. MacDougall, 454 U.S. 364, 365,

102 S. Ct. 700, 70 L. ed. 2d 551 (1982) (per curiam); Haines v. Kerner, 404 U.S. 519, 520, 92 S.
Ct. 594, 30 L. Ed. 2d 652 (1972), the Court is required to dismiss an in forma pauperis action
under 28 U.S.C. § 1915(e) if it fails to state a claim upon which relief can be granted, or if it lacks
an arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 109 S. Ct. 1827, 104 L. Ed. 2d
338 (1989); Lawler v. Marshall, 898 F.2d 1196 (6th Cir. 1990); Sistrunk v. City of Strongsville, 99
F.3d 194, 197 (6th Cir. 1996). A claim lacks an arguable basis in law or fact when it is premised
on an indisputably meritless legal theory or when the factual contentions are clearly baseless.
Neitzke, 490 U.S. at 327. A cause of action fails to state a claim upon which relief may be granted
when it lacks plausibility in the complaint. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 564, 127 S.
Ct. 1955, 167 L. Ed. 2d 929 (2007).
A pleading must contain a short and plain statement of the claim showing that the pleader
is entitled to relief. Ashcroft v. Iqbal, 556 U.S. 662, 677-78, 129 S. ct. 1937, 173 L. Ed. 2d 868
(2009). The factual allegations in the pleading must be sufficient to raise the right to relief above
the speculative level on the assumption that all the allegations in the complaint are true. Bell Atl.
Corp., 550 U.S. at 555. The plaintiff is not required to include detailed factual allegations, but
must provide more than an unadorned, the-defendant-unlawfully-harmed-me accusation. Iqbal,
556 U.S. at 678. A pleading that offers legal conclusions or a simple recitation of the elements of
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a cause of action will not meet this pleading standard. Id. In reviewing a complaint, the Court must
construe the pleading in the light most favorable to the plaintiff. Bibbo v. Dean Witter Reynolds,
Inc., 151 F.3d 559, 561 (6th Cir. 1998).
III.

ANALYSIS
Plaintiff fails to establish a basis for federal court jurisdiction. Federal courts are courts of

limited jurisdiction and, unlike state trial courts, they do not have general jurisdiction to review all
questions of law. See Ohio ex rel. Skaggs v. Brunner, 549 F.3d 468, 474 (6th Cir. 2008). Instead,
they have only the authority to decide cases that the Constitution and Congress have empowered
them to resolve. Id. Consequently, “[i]t is to be presumed that a cause lies outside this limited
jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction.”
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S. Ct. 1673, 128 L. Ed. 2d 391
(1994) (internal citation omitted).
Generally speaking, the Constitution and Congress have given federal courts authority to
hear a case only when diversity of citizenship exists between the parties, or when the case raises a
federal question. Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S. Ct. 2425, 96 L. Ed. 2d
318 (1987). The first type of federal jurisdiction, diversity of citizenship, is applicable to cases of
sufficient value between “citizens of different States[.]” 28 U.S.C. § 1332(a)(1). To establish
diversity of citizenship, the plaintiff must establish that he is a citizen of one state and all of the
defendants are citizens of other states. The citizenship of a natural person equates to his domicile.
Von Dunser v. Aronoff, 915 F.2d 1071, 1072 (6th Cir. 1990) (citations omitted). The second type
of federal jurisdiction relies on the presence of a federal question. This type of jurisdiction arises
where a “well-pleaded complaint establishes either that federal law creates the cause of action or
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that the Plaintiff’s right to relief necessarily depends on resolution of a substantial question of
federal law.” Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 27-28, 103 S. ct.
2841, 77 L. Ed. 2d 420 (1983).
Diversity of citizenship does not exist in this case. Plaintiff is incarcerated in the Ohio State
Penitentiary. He does not list any other address for himself. The defendants are an Ohio law firm
and an Ohio attorney who is currently a Portage County Court of Common Pleas Magistrate. A
plaintiff in federal court has the burden of pleading sufficient facts to support the existence of the
court’s jurisdiction. Fed. R. Civ. P. 8. In a diversity action, the plaintiff must state the citizenship
of all parties so that the existence of complete diversity can be confirmed. Washington v. Sulzer
Orthopedics, Inc., No. 03-3350, 2003 WL 22146143, at *1 (6th Cir. Sept. 16, 2003). The
complaint, as written, suggests that the plaintiff and defendants are all citizens of Ohio. Federal
subject matter jurisdiction cannot be based on diversity of citizenship.
If federal jurisdiction exists in this case, it must be based on a claimed violation of federal
law. In determining whether a claim arises under federal law, the Court looks only to the “wellpleaded allegations of the complaint and ignore[s] potential defenses” defendant may raise.
Mikulski v. Centerior Energy Corp., 501 F.3d 555, 560 (6th Cir. 2007) (quotation marks and
citation omitted). Although the well-pleaded-complaint rule focuses on what plaintiff alleges, it
allows the Court to look past the words of the complaint to determine whether the allegations
ultimately involve a federal question. Ohio ex rel. Skaggs, 549 F.3d at 475 (citation omitted). In
addition to causes of action expressly created by federal law, federal-question jurisdiction also
reaches ostensible state-law claims that: (1) necessarily depend on a substantial and disputed
federal issue, (2) are completely preempted by federal law or (3) are truly federal-law claims in
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disguise. See Mikulski, 501 F.3d at 560 (citation omitted); City of Warren v. City of Detroit, 495
F.3d 282, 286 (6th Cir. 2007) (quotation marks and citation omitted).
Here, plaintiff is proceeding pro se and pro se plaintiffs enjoy the benefit of a liberal
construction of their pleadings and filings. Boswell v. Mayer, 169 F.3d 384, 387 (6th Cir. 1999).
Indeed, this standard of liberal construction “requires active interpretation ... to construe a pro se
petition ‘to encompass any allegation stating federal relief.’” Franklin v. Rose, 765 F.2d 82, 85
(6th Cir. 1985) (quoting White v. Wyrick, 530 F.2d 818, 819 (8th Cir. 1976)). Even with that liberal
construction, however, plaintiff failed to identify a federal question in this case, and none is
apparent on the face of the complaint.
If plaintiff intended to assert a claim under 42 U.S.C. § 1983, he failed to do so. To establish
a prima facie case under 42 U.S.C. § 1983, plaintiff must assert that a person acting under color
of state law deprived him of rights, privileges, or immunities secured by the Constitution or laws
of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 101 S. Ct. 1908, 68 L. Ed. 2d 420
(1981). Generally, to be considered to have acted “under color of state law,” the person must be a
state or local government official or employee. A private party may be found to have acted under
color of state law to establish the first element of this cause of action only when the party “acted
together with or has obtained significant aid from state officials” and did so to such a degree that
its actions may properly be characterized as “state action.” Lugar v. Edmondson Oil Co., 457 U.S.
922, 937, 102 S. Ct. 2744, 73 L. Ed. 2d 482(1982). An individual may also be considered a state
actor if he or she exercises powers traditionally reserved to a state. Jackson v. Metro. Edison Co.,
Inc., 419 U.S. 345, 352, 95 S. Ct. 449, 42 L. Ed. 2d 477 (1974) (collecting cases). A public defender
or private defense counsel, while acting in that capacity, is not a state actor for purposes of § 1983.
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Polk Cnty. v. Dodson, 454 U.S. 312, 321, 102 S. Ct. 445, 70 L. Ed. 2d 509(1981).
To the extent plaintiff is claiming defendants violated the code of professional conduct, he
fails to state a claim under federal law. That claim would arise, if at all, under state tort law, which
will not support federal subject matter jurisdiction.
IV.

CONCLUSION
For all the foregoing reasons, this action is dismissed pursuant to 28 U.S.C. § 1915(e).

Pursuant to 28 U.S.C. § 1915(a)(3), an appeal from this decision could not be taken in good faith.
IT IS SO ORDERED.

Dated: October 26, 2017
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

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