United States District Court, E.D. Texas, Texarkana Division
W. SCHROEDER III UNITED STATES DISTRICT JUDGE.
Homero Martinez, proceeding pro se, filed this civil
action asserting various claims against his prior criminal
defense counsel. 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 named Defendants are Thomas Sullivan
and Christopher Phillipe, who are identified as
Martinez’s criminal defense attorneys.
was prosecuted and convicted in the United States District
Court for the Northern District of Texas. He complains his
attorneys failed to object to an illegal search warrant;
failed to move to suppress illegally obtained evidence;
failed to bring forth alibi and character witnesses; failed
to present evidence showing Martinez was simply a lease
manager and was not involved in any crime; and coerced him
into accepting a plea of guilty. In his complaint, Plaintiff
cited the Texas Civil Practice and Remedies Code, the Texas
Business and Commerce Code and the Texas Deceptive Trade
Practices Act, along with general principles of negligence
review of the proceedings, the Magistrate Judge issued a
Report recommending the lawsuit be dismissed. Docket No. 3.
The Magistrate Judge found that defense attorneys are not
state actors and thus cannot be sued under the federal civil
rights statute, 42 U.S.C. § 1983. Polk County v.
Dodson, 454 U.S. 312, 324 (1981). Similarly, defense
attorneys in federal criminal cases are not federal actors
and cannot be sued under Bivens v. Six Unknown Named
Agents of the Fed. Bureau of Narcotics, 403 U.S. 388,
397 (1971). See Quiroz v. Moran, 707 Fed.Appx. 1,
2017 U.S. App. LEXIS 22977, at *1 (D.C. Cir. Nov. 15, 2017)
(citing Polk County, 454 U.S. at 324); Solesbee
v. Nation, No. 3:06-cv-333, 2008 U.S. Dist. LEXIS 6287,
at *1–2 (N.D. Tex., Jan. 29, 2008). Thus, the
Magistrate Judge concluded Plaintiff failed to state a claim
upon which relief may be granted.
Magistrate Judge further recommended that the Court decline
to exercise jurisdiction over Plaintiff’s apparent
state law claims under the Texas Business and Commerce Code,
the Texas Deceptive Trade Practices Act and general
principles of negligence and malpractice. Though a federal
court can hear pendent state law claims under 28 U.S.C.
§ 1367, the Court may decline to exercise such
supplemental jurisdiction if the court has dismissed all the
claims over which it had original jurisdiction. See Rhyne
v. Henderson County, 973 F.2d 386, 395 (5th Cir. 1992).
Because the Defendants are not amenable to suit under either
Bivens or § 1983, all claims over which the
federal court had original jurisdiction should be dismissed.
The Magistrate Judge, therefore, recommended the Court
similarly dismiss Plaintiff’s state law claims.
received a copy of the Magistrate Judge’s Report,, but
filed no objections thereto; accordingly, he is barred from
de novo review by the District Judge of those
findings, conclusions and recommendations and, except upon
grounds of plain error, from appellate review of the
unobjected-to proposed factual findings and legal conclusions
accepted and adopted by the district court. Douglass v.
United Servs Auto. Assoc, 79 F.3d 1415, 1430 (5th Cir.
1996) (en banc).
the Court has reviewed the pleadings in this cause and the
Report of the Magistrate Judge and agrees with the Report of
the Magistrate Judge. See United States v. Raddatz,
447 U.S. 667, 683 (1980) (“[T]he statute permits the
district court to give to the magistrate’s proposed
findings of fact and recommendations ‘such weight as
[their] merit commands and the sounds discretion of the judge
warrants . . . ’ ”) (quoting Mathews v.
Weber, 23 U.S. 261, 275 (1976)). It is accordingly
the Report of the Magistrate Judge (Docket No. 3) is
ADOPTED as the opinion of the District
Court. It is further
the above-styled civil action is DISMISSED WITHOUT
PREJUDICE for failure to state a claim upon which
relief may be granted. It is further
the Plaintiffs state law claims are DISMISSED
WITHOUT PREJUDICE. The statute of
limitations on Plaintiffs state law claims shall be tolled
for the period of time this lawsuit was pending and for 30
days after it is dismissed. 28 U.S.C. § 1367(d).
Finally, it is
that any and all motions which may be pending in this civil
action are hereby DENIED AS MOOT.