Garcia v. Hart

Filing 14

ORDER signed by Judge J P Stadtmueller on 11/16/2021. IT IS ORDERED that Magistrate Judge Stephen C. Dries Report and Recommendation (Docket # 13 ) be and the same is hereby ADOPTED; IT IS FURTHER ORDERED that Plaintiff's motion for reconsideration (Docket # 9 ) be and the same is hereby DENIED; and IT IS FURTHER ORDERED that this action be and the same is hereby DISMISSED with prejudice. (cc: all counsel and mailed to pro se party)(rcm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
CESAR O. GARCIA,
Plaintiff,
v.
RICHARD H. HART,

Case No. 21-CV-55-JPS-JPS

ORDER

Defendant.
On January 12, 2021, Plaintiff Cesar O. Garcia (“Plaintiff”) filed a
complaint under 42 U.S.C. § 1983 alleging that Defendant Richard H. Hart
(“Defendant”) violated his civil rights. (Docket #1). On March 12, 2021,
Magistrate Judge Stephen C. Dries screened and dismissed Plaintiff’s case.
(Docket #7). However, upon closer inspection after Plaintiff filed a motion
for reconsideration, (Docket #9), Magistrate Judge Dries discovered that the
parties had not submitted to magistrate-judge jurisdiction. (Docket #12).
Accordingly, Magistrate Judge Dries vacated his earlier judgment and
issued a report and recommendation that this Court dismiss Plaintiff’s case
and deny his motion for reconsideration. (Id.; Docket #13). The Court will
adopt Magistrate Judge Dries’s report and recommendation, deny
Plaintiff’s motion for reconsideration, and dismiss this action with
prejudice.
As fully set forth in Magistrate Judge Dries’s dismissal order,
(Docket #7), Defendant is a private attorney and not a state actor (or a
person acting under color of state law) who is subject to suit under § 1983.
As to his “motion for reconsideration,” Plaintiff actually seeks leave
to amend his complaint to state a claim for legal malpractice against

Case 2:21-cv-00055-JPS Filed 11/16/21 Page 1 of 2 Document 14

Defendant. As fully set forth in Magistrate Judge Dries’s report and
recommendation, Plaintiff’s proposed amended complaint would be futile
because he has not alleged that he is actually innocent of his underlying
conviction—a necessary element of a malpractice suit against one’s criminal
defense attorney in Wisconsin. See, e.g., Shah v. Boyle, Boyle & Paulus, S.C.,
No. 07-C-540, 2008 WL 283159, at *4 (E.D. Wis. Jan. 31, 2008) (dismissing
complaint at the screening stage because “plaintiff [did] not maintain that
he is innocent of the crimes for which he was convicted, nor [had] his
conviction ever been set aside or reversed”). Further, in Plaintiff’s 2017
federal habeas action, District Court Judge William C. Griesbach concluded
that there was no question as to Garcia’s guilt. Garcia v. Pollard, No. 17-C693, 2019 WL 3937014, at *9 (E.D. Wis. Aug. 19, 2019).
Accordingly,
IT IS ORDERED that Magistrate Judge Stephen C. Dries’s Report
and Recommendation (Docket #13) be and the same is hereby ADOPTED;
IT

IS

FURTHER

ORDERED

that

Plaintiff’s

motion

for

reconsideration (Docket #9) be and the same is hereby DENIED; and
IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED with prejudice.
The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 16th day of November, 2021.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Judge

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