Ellison v. Ross

Filing 12

MEMORANDUM ORDER overruling objections and adopting 9 Report and Recommendation. This action is dismissed with prejudice for purposes of proceeding in forma pauperis as frivolous and for failure to state a claim upon which relief may be granted. All pending motions are denied. Signed by Judge Ron Clark on 8/16/17. (tkd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
LARRY ELLISON

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v.

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ALLEN WADE ROSS

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CIVIL ACTION NO. 6:16cv1314

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND ENTERING FINAL JUDGMENT
The Plaintiff Larry Ellison, an inmate of the Texas Department of Criminal Justice,
Correctional Institutions Division proceeding pro se, filed this civil rights lawsuit under 42 U.S.C.
§1983 complaining of alleged violations of his constitutional rights. This Court referred the case
to the United States Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and (3) and the Amended
Order for the Adoption of Local Rules for the Assignment of Duties to United States Magistrate
Judges. The sole named Defendant is an attorney named Allen Wade Ross, from Rusk, Texas.
I. Background
Plaintiff complained that in September of 2015, he hired Ross to prepare a parole package
and to represent him at a parole hearing to be held in November of 2015. Ross failed to attend the
hearing and did not present a parole package to the Board, and Ellison’s application for parole was
denied in January of 2016. Ross did not notify Ellison of the decision; instead, Ellison learned of
it and contacted Ross in February of 2016 to tell him of the denial and ask for a copy of the parole
package. That same month, Ellison asked Ross for reimbursement and Ross told him he did not
attend the hearing because the Board of Pardons and Paroles denied the request. Ellison wrote to
Ross again in March of 2016 to ask for a copy of the parole package or court record and Ross did
not respond. Ellison fied a grievance against Ross with the State Bar of Texas, but it was denied.

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II. The Report of the Magistrate Judge and the Plaintiff’s Objections
After review of the pleadings, the Magistrate Judge issued a Report recommending that the
lawsuit be dismissed. The Magistrate Judge determined that Ross, as a private attorney, was not a
state actor and thus was not amenable to suit under 42 U.S.C. §1983.
In his objections, Ellison contends that Ross’ failure to abide by their agreement constituted
a breach of contract as well as “a violation of Fourteenth Amendment due process protection under
the Sixth Amendment.” He claims Ross’ action also violates the Texas Rules of Professional
Conduct for Attorneys and argues that Ross “entered into a contract to represent Plaintiff fairly
without hostile discrimination or fraud.”
Next, Ellison states that complaints should not be dismissed for failure to state a claim unless
it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which
would entitle him to relief. He maintains that the rules require only a short and plain statement of
the claim and that pleading is not “a game of skill,” but is intended to facilitate a proper decision on
the merits. He asks that the Court consider his objections and conduct an evidentiary hearing.
III. Discussion
Breach of contract is a state tort claim, not a cause of action arising under the Constitution
or laws of the United States. See Braden v. Texas A&M University System, 636 F.2d 90, 93 (5th Cir.
1981). As such, it is not cognizable in a lawsuit under 42 U.S.C. §1983. Baker v. McCollan, 443
U.S. 137, 146, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979) (42 U.S.C. §1983 “imposes liability for
violations of rights protected by the Constitution, not for violations of duties of care arising out of
tort law.” To the extent Ellison alleges that Ross committed breach of contract, he has not set out
a federal constitutional claim.
Ellison also invokes the Fourteenth Amendment, but the Fourteenth Amendment only
protects liberty and proper interests against an invasion by a state actor, not a private party. Priester
v. Lowndes County, 354 F.3d 414, 421 (5th Cir. 2004). As the Magistrate Judge correctly
determined, an attorney whom Ellison hired is not a state actor. Uresti v. Reyes, 506 F.App’x 328,
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2013 WL 93105 (5th Cir., January 8, 2013), citing Hudson v. Hughes, 98 F.3d 868, 873 (5th Cir.
1996). The fact that Ross is bound by the Texas Rules of Professional Conduct does not make him
a state actor. See Milliron v. Director, TDCJ-CID, 75 F.3d 701, 714 (E.D.Tex. 2014); Polk County
v. Dodson, 454 U.S. 312, 317-25, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981). Ellison’s objection in this
regard is without merit.
Ellison’s invocation of the standards applicable to dismissals for failure to state a claim are
also unavailing. This standard provides that a complaint fails to state a claim upon which relief may
be granted where it does not allege sufficient facts that, taken as true, state a claim that is plausible
on its face and thus does not raise a right to relief above the speculative level. Montoya v. FedEx
Ground Packaging System Inc., 614 F.3d 145, 149 (5th Cir. 2010), citing Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).1 Ellison’s pleadings assert
a §1983 civil rights claim against an individual who is not a state actor and therefore cannot be sued
under §1983. His allegations, even taken as true, do not state a claim plausible on its face; in
addition, Ellison’s allegations lack an arguable basis in law. The Magistrate Judge properly
determined that Ellison’s complaint was frivolous and failed to state a claim upon which relief may
be granted. Ellison’s objections are without merit.
IV. Conclusion
The Court has conducted a careful de novo review of those portions of the Magistrate Judge’s
proposed findings and recommendations to which the Plaintiff objected. See 28 U.S.C. §636(b)(1)
(District Judge shall “make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.”) Upon such de novo review,

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The standard set out in Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957),
stating that “a complaint should not be dismissed for failure to state a claim unless it appears beyond
doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to
relief,” which Ellison cites in his objections, was abrogated by the Supreme Court in Bell, 550 U.S.
at 561-62.
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the Court has determined the Report of the Magistrate Judge is correct and the Plaintiff’s objections
are without merit. It is accordingly
ORDERED that the Plaintiff’s objections are overruled and the Report of the Magistrate
Judge (docket no. 9) is ADOPTED as the opinion of the District Court. It is further
ORDERED that the above-styled civil action is DISMISSED WITH PREJUDICE for
purposes of proceeding in forma pauperis as frivolous and for failure to state a claim upon which
relief may be granted. It is further
ORDERED that any and all motions which may be pending in this civil action are hereby
DENIED.

So Ordered and Signed
Aug 15, 2017

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