United States District Court, N.D. Texas, Fort Worth Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
RAY, JR., UNITED STATES MAGISTRATE JUDGE.
has sued Defendant for legal malpractice provided in
connection with a criminal proceeding. (ECF No. 1 at 3).
Plaintiff is proceeding in forma pauperis, his
complaint is subject to sua sponte dismissal if it
is “frivolous, malicious, or fails to state a claim on
which relief may be granted.” 28 U.S.C. §
1915(e)(2)(B)(i), (ii). A complaint is frivolous if it
“lacks an arguable basis either in law or in
fact.” Neitzke v. Williams, 490 U.S. 319, 325
(1989); Brewster v. Dretke, 587 F.3d 764, 767 (5th
Cir. 2009). A complaint lacks an arguable basis in law when
it is “based on an indisputably meritless legal
theory.” Neitzke, 490 U.S. at 326-27;
Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999).
And to state a claim upon which relief may be granted, a
complaint must plead “enough facts to state a claim to
relief that is plausible on its face” with enough
specificity “to raise a right to relief above the
speculative level[.]” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007).
courts are courts of limited jurisdiction. They possess only
that power authorized by Constitution and statute, which is
not to be expanded by judicial decree.” Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)
(citations omitted). District courts “must presume that
a suit lies outside this limited jurisdiction, and the burden
of establishing federal jurisdiction rests on the party
seeking the federal forum.” Howery v. Allstate Ins.
Co., 243 F.3d 912, 916 (5th Cir. 2001). A federal court
has an independent duty, at any level of the proceedings, to
determine whether it properly has subject-matter jurisdiction
over a case. Ruhgras AG v. Marathon Oil Co., 526
U.S. 574, 583 (1999) (“[S]ubject-matter delineations
must be policed by the courts on their own initiative even at
the highest level.”); McDonal v. Abbott Labs.,
408 F.3d 177, 182 n.5 (5th Cir. 2005) (“[A] federal
court may raise subject matter jurisdiction sua
federal court has subject-matter jurisdiction over civil
cases “arising under the Constitution, laws, or
treaties of the United States, ” and civil cases in
which the amount in controversy exceeds $75, 000, exclusive
of interest and costs, and diversity of citizenship exists
between the parties. 28 U.S.C. §§ 1331, 1332.
“[S]ubject-matter jurisdiction cannot be created by
waiver or consent.” Howery, 243 F.3d at 919.
Absent jurisdiction conferred by statute or the Constitution,
the federal district court does not have the power to
adjudicate claims and must dismiss an action if
subject-matter jurisdiction is lacking. Id.;
Stockman v. Fed. Election Comm'n, 138 F.3d 144,
151 (5th Cir. 1998) (citing Veldhoen v. United States
Coast Guard, 35 F.3d 222, 225 (5th Cir. 1994)).
face of the complaint, there is no federal-question
jurisdiction under 28 U.S.C. § 1331. Plaintiff asserts
that Defendant, his attorney in a criminal proceeding,
violated articles of the United States and Texas
Constitutions; the Federal Rules of Civil Procedure, Criminal
Procedure, and Evidence; and the Texas Rules of Evidence.
(ECF No. 1 at 3-4). Plaintiff also presents ten causes of
action that all relate to Defendant's actions while
representing him. (Id. at 4-8).
extent Plaintiff claims Defendant violated his constitutional
rights under 42 U.S.C. § 1983, a plaintiff may seek
redress under § 1983 only for conduct committed by
persons acting under the color of state law. Thibodeaux
v. Bordelon, 740 F.2d 329, 333 (5th Cir. 1984).
Generally, attorneys do not act under color of state law when
performing a lawyer's traditional function as an advocate
for his client. Polk County v. Dodson, 454 U.S. 312,
325 (1981); McCoy v. Gordon, 709 F.2d 1060, 1062
(5th Cir. 1983). However, if there is evidence of a
conspiracy between an attorney and state actors, then the
attorney may be deemed to have acted under color of state law
for the purposes of § 1983. Tower v. Glover,
467 U.S. 914 (1984); Polk County, 454 U.S. at 325;
but see Young v. Biggers, 938 F.2d 565, 569 (5th
Cir. 1991) (assertion of a conspiracy without facts to
support such an allegation is insufficient to state a
colorable claim under § 1983).
case at bar, Plaintiff makes no claim that Defendant is a
state actor or was involved in a conspiracy with a state
actor for the purpose of violating his civil rights. Rather,
his claim is merely one of a disagreement over the nature of
representation provided by Defendant. Thus, the complaint
fails to allege a basis for holding Defendant liable under
§ 1983. Further, the Court is unable to identify any
other cause of cation that could give rise to federal
question jurisdiction under 28 U.S.C. § 1331.
seeking to invoke diversity jurisdiction has the burden to
show that it exists. Stafford v. Mobil Oil Corp.,
945 F.2d 803, 804 (5th Cir. 1991). Diversity jurisdiction
exists “where the matter in controversy exceeds the sum
or value of $75, 000, exclusive of interest and costs, and is
between . . . citizens of different states.” 28 U.S.C.
§ 1332. Failure to adequately allege the basis for
diversity jurisdiction mandates dismissal. Patterson v.
Patterson, 808 F.2d 357, 357 (5th Cir. 1986).
address provided by Plaintiff indicates he resides in Dallas,
Texas. Although the complaint does not allege the citizenship
of Defendant, Plaintiff does allege that Defendant is a
member of the State Bar of Texas, complete with bar number. A
review of the State Bar of Texas's website shows
Defendant's practice is located in Haltom City, Texas.
Thus, Defendant also is likely a citizen of Texas.
Accordingly, it appears that both the Plaintiff and Defendant
are citizens of Texas, thereby, preventing the Court from
exercising subject matter jurisdiction over the case. Even if
the parties were diverse, Plaintiff has not alleged
sufficient facts for the Court to determine that the amount
in controversy exceeds $75, 000.
foregoing reasons, the undersigned
RECOMMENDS that United States District Judge
Reed O'Connor DISMISS WITHOUT PREJUDICE
Plaintiff's complaint pursuant to Federal Rules of Civil
Procedure Rule 12(b)(1) for lack of jurisdiction.
of this findings, conclusions, and recommendation shall be
served on all parties in the manner provided by law. Any
party who objects to any part of this findings, conclusions,
and recommendation must file specific written objections
within 14 days after being served with a copy. See
28 U.S.C. § 636(b)(1)(B) and Fed.R.Civ.P. 72(b)(1). In
order to be specific, an objection must identify the specific
finding or recommendation to which objection is made, state
the basis for the objection, and specify the place in the
magistrate judge's findings, conclusions, and
recommendation where the disputed determination is found. An
objection that merely incorporates by reference or refers to
the briefing before the magistrate judge is not specific.
Failure to file specific written objections will bar the
aggrieved party from appealing the factual findings ...