United States District Court, S.D. Illinois
HERNDON, District Judge
the Court is plaintiff Jerome Merriweather's pro
se motion for leave to proceed in forma
pauperis (Doc. 2). Before reaching the merits of
plaintiff's motion, the Court must determine if it has
jurisdiction over this matter and will construe plaintiff's
complaint liberally to determine if there is any manner in
which the plaintiff would have a meritorious claim.
Donald v. Cook county Sheriff's Dep't., 95
F.3d 548, 555 (7th Cir. 1996).
April 7, 2016, Mr. Merriweather entered a plea of guilty in
his federal criminal case pending before Judge J. Phil
Gilbert (4:15-cr-40046-JPG Doc. 178). At the time, Mr.
Merriweather had retained and was represented by defendant
Cheryl R. Whitley, a private attorney. On June 16, 2016,
Judge Gilbert granted attorney Whitley's motion to
withdraw as attorney (Criminal Case, Doc. 195) and appointed
counsel in accord with the Criminal Justice Act (Criminal
Case, Doc. 196). Mr. Merriweather's was set to be
sentenced on November 21, 2016 but instead his new counsel
made an oral motion to continue that matter in order to file
a motion to withdraw his guilty plea. The continuance motion
was granted and the withdrawal motion will be heard in early
January of 2017.
complaint, Mr. Merriweather arguably asserts claims for
breach of contract, legal malpractice, and for violating his
rights under the Sixth Amendment. Mr. Merriweather asserts
that jurisdiction is proper because the underlying criminal
case is in federal court.
federal courts are courts of limited jurisdiction. Mr.
Merriweather's claim can only proceed if (1) diversity
jurisdiction is present or (2) his action involves a federal
question. It is evident that diversity jurisdiction is not
present. Both parties appear to be citizens of Illinois and
the amount in controversy requirement is not met (the amount
in controversy is listed as $10, 000).
also evident that federal question is not a basis for
jurisdiction. Section 1331 provides that “[t]he
district courts shall have original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties of
the United States.” 28 U.S.C. Section 1331. Mr.
Merriweather's claims for breach of contract and legal
malpractice are state law claims. Dick v. Towles, 67
Fed.Appx. 965, 966-67 (7th Cir. 2003) (unpublished)
(“Allegations that a lawyer breached a contractual
obligation to his client implicate state, not federal,
fact that the underlying criminal case is proceeding in
federal court does not transform Mr. Merriweather's state
law claims into claims that satisfy the requirements of
question jurisdiction exists where a well-pleaded complaint
“establishes either that federal law creates the cause
of action or that the plaintiff's right to relief
necessarily depends on resolution of a substantial question
of federal law.” Franchise Tax Bd. v. Constr.
Laborers Vacation Trust, 463 U.S. 1, 27-28, 103 S.Ct.
2841, 77 L.Ed.2d 420 (1983)). Here, the complaint does not
allege a federal law that creates a cause of action is an
essential component of his breach of contract or legal
malpractice claims. Indeed, the complaint does not raise any
federal issue at all. The most that can be said about the
complaint is that it alleges wrongs that occurred during an
ongoing federal criminal matter.
a default judgment is a two-step process. First, a party must
seek an entry of default from the clerk. Fed.R.Civ.P. 55 (a).
Second, a party must seek a default judgment. Fed.R.Civ.P.
55(b). There is a clear distinction between the two steps.
See Lowe v. McGraw-Hill Cos., 361 F.3d 335, 339 (7th
Cir. 2004); see also In re Catt, 368 F.3d 789, 793
(7th Cir. 2004); United States v. Di Mucci, 879 F.2d
1488, 1490 n.3 (7th Cir. 1989).
Mr. Merriweather's assertions regarding alleged Sixth
Amendment violations do not confer federal question
jurisdiction over this action because the claim cannot rest
upon 42 U.S.C. § 1983. Section 1983 permits any person
to recover damages or other relief from another who has
deprived him of his constitutional rights “under color
of any statute, ordinance, regulation, custom, or usage of
any State or Territory.” 42 U.S.C. § 1983. See
also Fries v. Helsper, 146 F.3d 452, 457 (7th Cir.1998)
(in order to violate section 1983, the defendant must be a
state actor). Defendant, a private attorney, is not a state
actor. See Polk County v. Dodson, 454 U.S. 312
(1981); Sun v. McCann, 996 F.2d 1220 (7th Cir.
1993); Housand v. Heiman, 594 F.2d 923, 924-25 (2nd
Cir. 1979); Deas v. Potts, 547 F.2d 800 (4th Cir.
1976). Because plaintiff has no cognizable Sixth Amendment
claim against his private attorney, that claim cannot serve
as the basis for federal jurisdiction over this case.
reasons stated herein, the Court sua sponta
DISMISSES this cause of action for want of jurisdiction. The
court, therefore, DENIES plaintiffs motion to proceed in
forma pauperis (Doc. 3), motion for recruitment of
counsel (Doc. 2), and motion for service of process (Doc. 4)
as moot. The Clerk is DIRECTED to enter judgment accordingly.