United States District Court, C.D. Illinois
ORDER & OPINION
McDade United States Senior District Judge
matter is before the Court on Plaintiff's Motion for
Leave to proceed in forma pauperis (Doc. 2). This motion is
GRANTED. However, as explained below, Plaintiff's
Complaint fails to state a claim on which relief may be
granted. Therefore, pursuant to 28 U.S.C. §
1915(e)(2)(B), the Complaint is DISMISSED.
Toby Birge is currently a prisoner in the custody of the
Illinois Department of Corrections. On August 4, 2016, he
filed a pro se Complaint against his lawyer, J. Rinker,
pursuant to 42 U.S.C. § 1983. Birge alleges that
Defendant “did not represent me like a lawyer”
during criminal proceedings. (Doc. 1 at 5). Instead,
Defendant advised him to plead guilty because that is what
the Bible suggested he should do. (Id.). Birge
writes, “I feel that J. Rinker manipulated and lied to
to 28 U.S.C. § 1915(b), prisoners may proceed with
lawsuits without prepaying the filing fee. However, prisoners
must pay an initial filing fee and then make monthly payments
“of 20 percent of the preceding month's income
credit to the prisoner's [trust fund] account.”
Plaintiff's motion for leave to proceed in forma pauperis
is GRANTED. Pursuant to 28 U.S.C. § 1915(b)(1),
Plaintiff is assessed an initial partial filing fee of $4.04.
The agency having custody of Plaintiff is directed to forward
the initial partial filing fee from Plaintiff's account
to the Clerk of Court. After payment of the initial partial
filing fee (or immediately if no funds are available for that
payment), the agency having custody of Plaintiff is directed
to make monthly payments of 20 percent of the preceding
month's income credited to Plaintiff's account to the
Clerk of Court. The agency having custody of Plaintiff shall
forward these payments each time Plaintiff's account
exceeds $10, until the filing fee of $350 is paid in full.
1915(e)(2)(B)(ii) instructs that courts “shall dismiss
the case at any time if the court determines that . . . the
action or appeal . . . fails to state a claim on which relief
may be granted.” Id. § 1915(e)(2)(B)(ii).
Such dismissals are treated in the same manner as dismissals
under Federal Rule of Civil Procedure 12(b)(6). Arnett v.
Webster, 658 F.3d 742, 751 (7th Cir. 2011). Therefore,
the court must take “all well-pleaded allegations of
the complaint as true and view them in the light most
favorable to the plaintiff.” Id.
plaintiff's complaint must contain sufficient detail to
give notice of the claim, and the allegations must
“plausibly suggest that the plaintiff has a right to
relief, raising that possibility above a ‘speculative
level.'” EEOC v. Concentra Health Servs.,
Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). The plausibility standard requires enough facts
“to present a story that holds together, ” but
does not require a determination of probability. Swanson
v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010).
Though detailed factual allegations are not needed, a
“formulaic recitation of the elements of a cause of
action will not do.” Bell Atl. Corp., 550 U.S.
at 555. Pro se complaints are to be liberally construed and
“must be held to less stringent standards than formal
pleadings drafted by lawyers.” Erikson v.
Pardus, 551 U.S. 89, 94 (2007)(per curiam).
Court must dismiss Plaintiff's case pursuant to §
1915(e)(2)(B)(ii). “To state a claim for relief under
42 U.S.C. § 1983, a plaintiff must allege (1) he was
deprived of a right secured by the Constitution or laws of
the United States; and (2) the deprivation was visited upon
him by a person or persons acting under color of state
law.” Buchanan-Moore v. County of Milwaukee,
570 F.3d 824, 827 (7th Cir. 2009). The only individual that
Plaintiff has sued is his defense attorney, and criminal
defense attorneys, including public defenders and court
appointed defense attorneys, do not operate under color of
state law. Polk County v. Dodson, 454 U.S. 312,
324-25 (1981). Therefore, Plaintiff's § 1983 claim
possible that Plaintiff is also attempting to bring a state
law claim for legal malpractice. The Court declines to
exercise jurisdiction over any state law claims Plaintiff may
bring. “Federal courts are courts of limited
jurisdiction” and courts “have an obligation at
each state of the proceedings to ensure that [they] have
subject matter jurisdiction over a dispute.”
Northeastern Rural Elec. Membership Corp. v. Wabash
Valley Power Ass'n, Inc., 707 F.3d 883, 890 (7th
Cir. 2013). A federal court may have original jurisdiction
over state law claims when there is diversity of citizenship
between the parties. See 28 U.S.C. § 1332(a).
It may also have jurisdiction over state law claims that are
supplemental to those claims over which it has original
jurisdiction. See 28 U.S.C. § 1367(a).
Court does not have original jurisdiction over any state law
claims Plaintiff might try to bring. Plaintiff has made no
allegations regarding the citizenship of any party, and the
Complaint suggests all parties are citizens of Illinois.
Therefore, it appears that there is no diversity of
citizenship. See 28 U.S.C. § 1332.
Court does have supplemental jurisdiction pursuant to 28
U.S.C. § 1367 because any apparent state law claim
arises from the same common nucleus of operative facts as
Plaintiff's apparent § 1983 claim. See Sanchez
& Daniels v. Koresko, 503 F.3d 610, 614 (7th Cir.
2007). The fact that the Court has supplemental jurisdiction
does not mean it must exercise it. A court may decline to
exercise jurisdiction when it has “dismissed all claims
over which it has original jurisdiction.” 28 U.S.C.
§ 1367(c)(3). In dismissing Plaintiff's § 1983
claim, the Court disposes of the single claim over which it
has original jurisdiction. Because it dismisses the claim
giving rise to original jurisdiction on a purely legal ground
at the outset of litigation, the Court declines to exercise
supplementary jurisdiction over Plaintiff's state law
claims. See Ross ex rel. Ross v. Bd. of Educ. of Tp. High
School Dist. 211, 486 F.3d 279, 285 (7th Cir. 2007).
THEREFORE ORDERED that Plaintiff's motion to proceed in
forma pauperis (Doc. 2) is GRANTED. Pursuant to 28 U.S.C.
§ 1915(e)(2), Plaintiff's Complaint (Doc. 1) is
DISMISSED WITHOUT PREJUDICE to any state law claims that
Plaintiff may wish to file in state Court. The Clerk is
directed to mail a copy of this ...