Harper v. Nicholson

Filing 4

REPORT AND RECOMMENDATION that the action be dismissed for lack of subject matter jurisdiction & that the Court conclude that an appeal from the judgment entered in the action would not be taken in good faith. Objections due w/in fourteen (14) days. Signed by Magistrate Judge Norah McCann King on 6/27/2011. (kk2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

HENRY N. HARPER,
Plaintiff,
vs.

Civil Action 2:11-CV-555
Judge Frost
Magistrate Judge King

WILLIAM NICHOLSON,
Defendant.

REPORT AND RECOMMENDATION
Plaintiff, a state prisoner, brings this action alleging that
defendant, the attorney who represented plaintiff in his state court
criminal proceedings, committed legal malpractice during the course of
those

proceedings.

The

Complaint

invokes the Court’s diversity

jurisdiction and federal question jurisdiction and seeks an award of
monetary damages.

This matter is now before the Court for the initial

screen of the Complaint required by 28 U.S.C. §§ 1915(e), 1915A.

Because

the Court concludes that jurisdiction is lacking, it is recommended that
the action be dismissed.
Plaintiff and defendant are both identified as residents of
Ohio.
§ 1332.

The Court therefore lacks diversity jurisdiction under 28 U.S.C.
The Court also lacks federal question jurisdiction because the

Complaint fails to allege the denial of a constitutional right by a state
agent or employee. See Polk County v. Dodson, 454 U.S. 312, 318-19 (1981)
(a defense lawyer – even an attorney appointed by a state court - does
not act under color of state law in defending a client).

Under these

circumstances, the Complaint must be dismissed for lack of subject matter
jurisdiction.
It is therefore RECOMMENDED that the action be dismissed under
28 U.S.C. §§1915(e), 1915A, for lack of subject matter jurisdiction.

It

is FURTHER RECOMMENDED that the Court conclude that an appeal from the
judgment entered in the action would not be taken in good faith.

See 28

U.S.C. §1915(a).
If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file and
serve on all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the part
thereof in question, as well as the basis for objection thereto.
U.S.C. §636(b)(1); F.R. Civ. P. 72(b).

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Response to objections must be

filed within fourteen (14) days after being served with a copy thereof.
F.R. Civ. P. 72(b).
The parties are specifically advised that failure to object to
the Report and Recommendation will result in a waiver of the right to de
novo review by the District Judge and of the right to appeal the decision
of the District Court adopting the Report and Recommendation. See Thomas
v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Federation of Teachers,
Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States v. Walters,
638 F.2d 947 (6th Cir. 1981).

s/Norah McCann King
Norah McCann King
United States Magistrate Judge
June 27, 2011
(Date)

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