United States District Court, E.D. Texas, Sherman Division
ORDER OF DISMISSAL
L. MAZZANT UNITED STATES DISTRICT JUDGE
case was referred to United States Magistrate Judge Christine
A. Nowak, who issued a Report and Recommendation concluding
that Plaintiff's case should be dismissed with prejudice.
Plaintiff filed objections. The Report and Recommendation of
the Magistrate Judge, which contains proposed findings of
fact and recommendations for the disposition of such action,
has been presented for consideration. After conducting a
de novo review of the objections raised by Plaintiff
to the Report, the Court concludes they are without merit.
overriding objection concerns the Magistrate Judge's
conclusion that, because Plaintiff's lawsuit is against
his attorney, the Court does not have subject-matter
jurisdiction to hear the case. The Magistrate Judge noted in
the Report that claims against defense attorneys are not
cognizable in a Section1983 lawsuit because defense attorneys
are not state actors, and thus, are generally not subject to
suit under Section 1983. Mudine v. Johnson, 244 F.3d
134 (2000) (citing Polk Cty. v. Dodson, 454 U.S.
312, 324-25 (1981)); Hudson v. Hughes, 98 F.3d 868,
873 (5th Cir. 1996) (“private attorneys, even
court-appointed attorneys, are not official state actors, and
generally are not subject to suit under section 1983").
attempts to show that, contrary to the Magistrate Judge's
determination, the Court has jurisdiction, and cites to
Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971), and 28 U.S.C. §
1334. However, Bivins concerns whether damages may
be brought against federal agents acting unlawfully as they
carry out duties of the United States. Id.
Bivins does not apply to Plaintiff's case as his
attorney is not a federal agent. Plaintiff also cites to 28
U.S.C. § 1334, but this statute does not apply to
Plaintiff's case either as it concerns bankruptcy cases
Plaintiff claims that Defendant should be considered a state
actor because he conspired with state actors. While it is
well established that private attorneys, even court-appointed
attorneys, are not official state actors, private attorneys
who have conspired with state officials may be held liable
under Section 1983. See Mills v. Criminal Dist. Court No.
3, 837 F.2d 677, 679 (5th Cir. 1988). Plaintiff cites to
West v. Atkins, 487 U.S. 42 (1988), in which a
doctor, who was under contract with the state to provide
medical services to inmates at a state prison hospital, was
deemed to be a state actor because the doctor was acting on
behalf of the state. West is not applicable to
Plaintiff's case as Defendant was acting on behalf of
Plaintiff as his defense attorney - not on behalf of the
state. Plaintiff also cites to United States v.
Price, 383 U.S. 787 (1966), in which certain defendants,
who were not defense attorneys for the defendant, were deemed
to be state actors based on their wilful participation in
joint actions with official state actors. However, the Court
finds no factual basis in Plaintiff's filings to support
a conspiracy between Defendant and state officials. Plaintiff
fails to show how his defense attorney was acting jointly
with state actors in such a manner that would deem Defendant
a state actor.
addition to Plaintiff's erroneous belief that the Court
has jurisdiction to hear this Section 1983 case against his
defense attorney, Plaintiff asserts it is the Defendant's
obligation, rather than the Court's, to make the
determination regarding jurisdiction. Plaintiff is mistaken.
The Federal Rules of Civil Procedure explicitly state,
“if the court determines at any time that it lacks
subject-matter jurisdiction, the court must dismiss the
action.” Fed.R.Civ.P. 12(h)(3); See also Henderson
ex rel. Henderson v. Shinseki, 562 U.S. 428, 434 (2011).
Dismissals for lack of subject matter jurisdiction may be
ordered sua sponte. Arbaugh v. Y&H
Corp., 546 U.S. 500, 506 (2006). Plaintiff also
complains that Defendant was not served pursuant to Rule 4 of
the Federal Rules of Civil Procedure. The intent of the rules
for serving process is to give sufficient notice to
defendants of any actions filed against them. See 4
Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 1062 (4th ed. 2013). However, because
the Court lacks subject-matter jurisdiction, and accordingly,
should dismiss the case, the issuance of a summons is not
additionally contends that, in recommending dismissal based
on a lack of subject-matter jurisdiction, the Magistrate
Judge “has become an advocate for the Defendant.”
He complains the Magistrate Judge engages in
“discriminatory systematic . . . patterns of unethical
policies.” Section 144 of 28 U.S.C. provides:
Whenever a party to any proceeding in a district court makes
and files a timely and sufficient affidavit
that the judge before whom the matter is pending has a
personal bias or prejudice either against him or in favor of
any adverse party, such judge shall proceed no further
therein, but another judge shall be assigned to hear such
well established that mere disagreements as to rulings made
are almost always insufficient to show bias or prejudice.
See Liteky v. United States, 114 S.Ct. 1147, 1157
(1994), citing United States v. Grinnell
Corp., 384 U.S. 563, 583 (1966). Affidavits based on
mere conclusions, opinions, or rumors rather than personal
knowledge are legally insufficient to show bias.
Henderson v. Dep't Pub. Safety and Corr., 901
F.2d 1288, 1296 (5th Cir. 1990). The Court notes that
Plaintiff fails to submit an affidavit in support of his
argument of bias. Additionally, Plaintiff fails to provide
sufficient information in his objections that would lead a
reasonable person to conclude that the Magistrate Judge is
biased against Plaintiff.
also complains that the Magistrate Judge recommended the case
be dismissed as untimely. Plaintiff is mistaken, as the
Report simply notes in a footnote that Plaintiffs claims are
“arguably” time-barred. The clear basis for the
Magistrate Judge's recommendation for dismissal is the
Court's lack of subject-matter jurisdiction.
Plaintiff asks that his $400.00 filing fee be returned to
cure “the pollution” of the case. Once a
complaint is filed, the filing fee is due and payable,
regardless of the outcome of the case. Plaintiff cites to no
authority that would allow the Court to return the filing
fee. It is accordingly
that the complaint is DISMISSED with
prejudice. All motions by either party not ...