Steptoe, David et al v. Thorpy, Michael

Filing 11

ORDER that plaintiffs Ebony Moore and Brittany Pridgeon are DISMISSED. Plaintiff David Steptoe may have until December 13, 2024, to submit an amended complaint. Signed by District Judge James D. Peterson on 11/22/2024. (rks),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

DAVID STEPTOE, EBONY MOORE,
and BRITTANY PRIDGEON,
Plaintiff,

OPINION and ORDER

v.
24-cv-578-jdp
MICHAEL THORPY,
Defendant.
Plaintiff David Steptoe, proceeding without counsel, is an inmate at the Rock County
Jail. Steptoe brings this lawsuit, alleging that his criminal defense attorney provided him with
woefully ineffective assistance of counsel, cheating him of the large sum of money he paid
counsel. Steptoe also names Ebony Moore and Brittany Pridgeon as plaintiffs, but he is the
only plaintiff who signed the complaint, he cannot represent the other plaintiffs, and his
allegations appear to pertain only to him. I will dismiss the other plaintiffs.
Steptoe has made an initial partial payment of the filing fee under 28 U.S.C.
§ 1915(b)(1), as previously directed by the court. The next step is for me to screen the
complaint and dismiss any portion that is legally frivolous or malicious, fails to state a claim
upon which relief may be granted, or asks for money damages from a defendant who by law
cannot be sued for money damages. 28 U.S.C. §§ 1915 and 1915A. In doing so, I must accept
Steptoe’s allegations as true and construe the complaint generously, holding it to a less
stringent standard than formal pleadings drafted by lawyers. Arnett v. Webster, 658 F.3d 742,
751 (7th Cir. 2011).
But even applying these standards, Steptoe’s allegations do not support a claim that
this court can hear. Steptoe cannot bring a federal claim under 42 U.S.C. § 1983 against his

defense counsel because defense attorneys are not “state actors” for purposes of § 1983. See Polk
Cty. v. Dodson, 454 U.S. 312, 325 (1981); Swaggerty v. Trevarthen, 715 F. App’x 556, 558 (7th
Cir. 2018). What Steptoe really seems to be bringing is a legal malpractice claim against his
lawyer, but there are two problems with this claim.
First, legal malpractice is a Wisconsin-law claim that he cannot bring in this federal
court unless he were to show that the requirements for the court’s diversity jurisdiction are
met: that he and defendant are citizens of different states and that more than $75,000 is in
controversy. 28 U.S.C. § 1332. Steptoe does not assert the parties’ citizenships; he states only
that they both reside in Wisconsin. But “[c]itizenship means domicile (the person’s long-term
plan for a state of habitation) rather than just current residence,” so Steptoe cannot establish
their citizenship for diversity purposes by stating where they reside. Myrick v. WellPoint, Inc.,
764 F.3d 662, 664 (7th Cir. 2014). To allege their citizenship, Steptoe must say what state
that he is domiciled in and what state defendant is domiciled in; that is, in what state they
intend to remain long-term. If Steptoe and defendant are both citizens of Wisconsin, Steptoe
cannot bring this case in federal court.
Second, even if the requirements for diversity jurisdiction were met, Steptoe has not
properly pleaded a legal malpractice claim. Under Wisconsin law, he cannot recover for a
malpractice claim unless he proves that he was actually innocent of the charges of which he
was convicted. Tallmadge v. Boyle, 2007 WI App 47, ¶ 18, 300 Wis. 2d 510, 730 N.W.2d 173.
Steptoe does not plead that he is actually innocent.
I will give Steptoe an opportunity to amend the complaint to fix these pleading
problems. If he fails to do so by the deadline set below, I will dismiss the case.

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ORDER
IT IS ORDERED that:
1. Plaintiffs Ebony Moore and Brittany Pridgeon are DISMISSED.
2. Plaintiff David Steptoe may have until December 13, 2024, to submit an amended
complaint fixing the problems discussed above.
Entered November 21, 2024.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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