Opinion
3:01-CV-0848-R.
November 2, 2001.
ORDER OF DISMISSAL
This is an action filed pursuant to 42 U.S.C. § 1983 by an inmate confined in the Moore Unit of the Texas Department of Criminal Justice in Bonham, Texas. Plaintiff paid the $150.00 filing fee and is, therefore, not proceeding in forma pauperis. The court takes judicial notice that Defendants are local attorneys engaged in the private practice of law. The attorneys, Paul Johnson, Anthony Lyons and John Nation, represented Plaintiff during his state criminal trial and/or subsequent state habeas proceeding. Plaintiff seeks redress against Defendants for allegedly failing to obtain D.N.A. evidence which, Plaintiff claims, would have proven his innocence. See Complaint ¶ V.
Plaintiff's pro se federal habeas petition was dismissed by judgment entered May 23, 2001. The Court found that the petition was barred by the one-year statute of limitation.
On May 11, 2001, summons forms were issued to Plaintiff and he was directed to complete the forms and return them to the Clerk of Court for issuance. See Order entered May 11, 2001. Plaintiff was also admonished that he was responsible for service of process upon Defendants within 120 days in compliance with Rule 4, Federal Rules of Civil Procedure. Id. On July 11, 2001, Plaintiff filed a letter requesting additional summons forms, guidelines on how to fill them out and an extension of time in which to effect service upon Defendants. See Order entered July 19, 2001. Plaintiff was granted an extension of time to September 16, 2001 to effect service upon the Defendants. Id. A review of the Clerk's file reflects that Plaintiff has failed to return proof of service to the Court.
Each of the three Defendants has filed a motion to dismiss this action for lack of subject matter jurisdiction. Two Defendants, Paul Johnson and Anthony Lyons, additionally move to dismiss on the basis of insufficient service of process. While it appears that Plaintiff may not have properly effected service of process, all Defendants have filed and answer and/or motion to dismiss. For the following reasons, it is not necessary for the court to reach a decision on the issue of service of process.
The threshold issue in this case is whether this Court has jurisdiction to entertain Plaintiff's complaint. "[S]ubject-matter jurisdiction is not waivable, and the federal courts are under a continuing duty to inquire into the basis of jurisdiction in the district court." Warren v. U.S., 874 F.2d 280, 281-82 (5th Cir. 1989) (citing Smith v. Booth, 823 F.2d 94, 96 (5th Cir. 1987)). "The District Court is vested with authority to inquire at any time whether the conditions to the exercise of its jurisdiction have been met." Broussard v. U.S., 989 F.2d 171, 176 (5th Cir. 1993) (quoting McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785 (1936)).
Plaintiff has failed to state a claim arising under federal law. 42 U.S.C. § 1983 affords redress only for conduct committed by persons acting under color of state law. Thibodeaux v. Bordelon, 740 F.2d 329 (5th Cir. 1984). Generally, attorneys do not act under color of state law when performing a lawyer's traditional function as counsel to a defendant in a criminal proceeding. Polk County v. Dodson, 454 U.S. 312, 325,102 S.Ct. 445,453 (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. 914,104 S.Ct. 2820 (1984); Polk County v. Dodson, 454 U.S. at 325, 102 S.Ct. at 453. In the case at bar, Plaintiff makes no claim that Defendants were involved in a conspiracy with state actors. See Young v. Biggers, 938 F.2d 565, 569 (5th Cir. 1991) (holding that even assertions of conspiracy, without facts to support such allegations, are insufficient to state a colorable claim under § 1983). Thus, Plaintiff's complaint fails to allege a basis for holding Defendants liable under § 1983.
To the extent that Plaintiff seeks civil redress for his alleged injuries under state substantive law, the court is without jurisdiction to entertain his complaint. When a complaint presents no federal question, 28 U.S.C. § 1332 requires complete diversity of citizenship and $75,000 in controversy to invoke the jurisdiction of a federal court. From the face of Plaintiff's complaint, it is apparent that he and all Defendants are citizens of Texas. Complaint ¶ IV.A B. Moreover, Plaintiff does not make a claim for damages in excess of $75,000. Complaint ¶ V. Because there is no diversity of citizenship and because the amount in controversy appears insufficient, Plaintiff's complaint, construed as a diversity action, is subject to dismissal for lack of jurisdiction.
IT IS THEREFORE ORDERED that Plaintiff's civil rights claims are hereby dismissed with prejudice pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure, for failure to state a claim upon which relief can be granted.
IT IS FURTHER ORDERED that Plaintiff's complaint, liberally construed as a diversity action, is hereby dismissed without prejudice for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), Federal Rules of Civil Procedure.
The Clerk of Court shall transmit a true copy of this Order to Plaintiff and to Counsel for Defendants.
SO ORDERED.