United States District Court, C.D. Illinois
RONALD E. HANSON, Plaintiff,
MARK D. JOHNSON, Defendant.
ORDER AND OPINION
E. Shadid Chief United States District Judge
matter is now before the Court on Defendant Johnson's
Motion  to Dismiss and Plaintiff Hanson's Motion 
for Default Judgment. For the reasons set forth below,
Defendant's Motion  is GRANTED and Plaintiff's
Motion  is DENIED. Plaintiff may amend his Complaint
within 14 days of this Order if he has a good faith basis for
January 11, 2017, Plaintiff Hanson filed a pro se
Complaint, and later an Amended Complaint, against Defendant
Johnson alleging that Defendant violated his Illinois and
federal constitutional rights by wrongfully possessing over
$610, 000 worth of Plaintiff's property and goods. Both
Plaintiff and Defendant are citizens of Illinois. Plaintiff
alleges that Johnson, who he retained in 2010 to represent
him in connection with a criminal felony case and two civil
cases in Illinois state court, absconded with property given
to Johnson as collateral after Johnson withdrew from
representing Hanson on July 15, 2010.
Amended Complaint alleges that Johnson was suspended from the
practice of law by the Illinois Attorney Registration and
Disciplinary Committee in 2016 for conduct relating to his
representation of Hanson. Plaintiff has a similar state court
action against Johnson pending in McLean County. Hanson is
currently incarcerated at Dixon Correctional Center in Dixon,
Illinois. Defendant Johnson's Motion asserts that this
action must be dismissed because this Court lacks diversity
jurisdiction to hear Hanson's state law claims, Hanson
has not alleged a federal cause of action, and Defendant is
not a state or federal actor. This Order follows.
have traditionally held that a complaint should not be
dismissed unless it appears from the pleadings that the
plaintiff could prove no set of facts in support of her claim
which would entitle her to relief. See Conley v.
Gibson, 355 U.S. 41 (1957); Gould v. Artisoft,
Inc., 1 F.3d 544, 548 (7th Cir. 1993). Rather, a
complaint should be construed broadly and liberally in
conformity with the mandate in the Federal Rules of Civil
Procedure 8(e). More recently, the Supreme Court has phrased
this standard as requiring a showing sufficient “to
raise a right to relief beyond a speculative level.”
Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965
(2007). The claim for relief must be “plausible on its
face.” Id.; Ashcroft v. Iqbal, 129
S.Ct. 1937, 1953 (2009). For purposes of a motion to dismiss,
the complaint is construed in the light most favorable to the
plaintiff; its well-pleaded factual allegations are taken as
true. See Albright v. Oliver, 510 U.S. 266, 268
(1994); Hishon v. King & Spalding, 467 U.S. 69
(1984); Lanigan v. Village of East Hazel Crest, 110
F.3d 467 (7th Cir. 1997); M.C.M. Partners, Inc. v.
Andrews-Bartlett & Assoc., Inc., 62 F.3d 967, 969
(7th Cir. 1995); Early v. Bankers Life & Cas.
Co., 959 F.2d 75 (7th Cir. 1992).
courts are courts of limited jurisdiction. Section 1332(a)(1)
confers upon district courts jurisdiction to hear state law
claims when complete diversity of citizenship exists between
the parties: “The district courts shall have original
jurisdiction of all civil actions 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. Here, the
Court lacks diversity jurisdiction because Plaintiff and
Defendant are both citizens of Illinois. Thus,
Plaintiff's Complaint must assert a claim that arises
under federal law or the United States Constitution. See 28
U.S.C. § 1331. Under the well-pleaded complaint rule, a
suit arises under federal law “only when the
plaintiff's statement of his own cause of action shows
that it is based upon [federal law].” Vaden v.
Discover Bank, 556 U.S. 49, 60 (2009).
Amended Complaint does not indicate which jurisdictional
statute or constitutional provision he relies on to establish
federal question jurisdiction. He did not check the §
1983 box for actions against state officials or the §
1331 box for actions against federal officials; rather, he
checked “other” and wrote “suit against an
attorney that stole from me and violated my Illinois and U.S.
constitutional rights.” Although Hanson alleges that
Johnson violated his constitutional rights, he has not
alleged that Johnson was acting on behalf of the state.
Actions under § 1983 require the defendants to be acting
under color of state law, and “a public defender does
not act under color of state law when performing a
lawyer's traditional functions as counsel to a defendant
in a criminal proceeding.” Polk County v.
Dodson, 454 U.S. 312, 325 (1981); Sceifers v.
Trigg, 46 F.3d 701, 704 (7th Cir. 1995) (“Indeed,
the actions of Sceifers' deputy public defenders and
appointed counsel, which caused the delay, do not constitute
state action.”). Here, Plaintiff attempts to assert
claims against his private counsel. However, a privately
retained attorney is not a state actor within the context of
§ 1983. Sceifers, 45 F.3d at 704. Thus,
Plaintiff cannot state a claim under § 1983 because the
conduct complained of is outside the realm of state action.
See Dudley v. Strong Law Offices, Case No. 15-1089
(C.D. Ill. March 2, 2015); see also Wilson v. Warren
County, No. 11-4078 (C.D. Ill. Mar. 30, 2015) (finding
that Johnson and Hanson, defendants in an action apparently
based on the same or similar facts asserted here, were not
Hanson has not moved to join additional defendants, he
attaches to his Amended Complaint parts of a form complaint
where he lists as Defendants the State of Illinois, two
Warren County judges, a Warren County State's Attorney,
Sherriff, and Detective. That portion of his Amended
Complaint claims that the Warren County actors maliciously
prosecuted Hanson and attacks the state court conviction and
sentence for which he is currently incarcerated. It is
unclear whether Hanson intended to assert claims against the
Warren County actors, or whether their inclusion was intended
as support for his claims against Johnson.
Eleventh Amendment forbids suits for monetary damages brought
against a state in federal court. Pennhurst State School
& Hospital v. Halderman, 465 U.S. 89 (1984). Here,
assuming Hanson is asking a federal court to join the State
of Illinois as a Defendant in an action to enforce Illinois
law, that claim would be barred by the Eleventh Amendment.
See Pennhurst, 465 U.S. at 106. (“[I]t is
difficult to think of a greater intrusion on state
sovereignty than when a federal court instructs state
officials on how to conform their conduct to state law. . . .
[s]uch a result conflicts directly with the principles of
federalism that underlie the Eleventh Amendment.”).
Thus, sovereign immunity under the Eleventh Amendment
prohibits the joinder of the State of Illinois as a necessary
party to this action.
Court need not analyze whether Hanson can sue the individual
Warren County actors at this juncture because he has not
moved to join them to this lawsuit. Presumably, those actors
would be entitled to qualified immunity. However,
Hanson's Motion for Default Judgment and his response to
Johnson's Motion to Dismiss do not contain any reference
to anyone other than Defendant Johnson, leading the Court to
believe that Hanson's claim is against Defendant Johnson
alone. See also Amended Complaint at 3 (stating,
under the “Exhaustion of Administrative Remedies”
section, that this lawsuit does not involve state or federal
actors). The Court notes, however, that if Hanson wishes to
challenge his state court conviction or sentence, the
appropriate vehicle for doing such would be through state or
federal habeas corpus proceedings, not a civil suit. See
Heck v. Humphrey. 512 U.S. 477, 486-87 (1994); 28
U.S.C. § 2254.
Hanson's Amended Complaint fails to establish that his
claim is based upon federal law. Vaden v. Discover
Bank, 556 U.S. 49, 60 (2009). Hanson attempts to assert
state law claims against Johnson, but this court does not
have diversity jurisdiction to hear such claims because
Plaintiff and Defendant are both citizens of Illinois. And
although Hanson alleges that Johnson violated his
constitutional rights, he cannot establish federal question
jurisdiction because Johnson was not acting as a state or
federal official. Accordingly, Plaintiff's Amended
Complaint must be dismissed for lack of subject-matter
jurisdiction. Based on the facts alleged in the Amended
Complaint, it is unlikely that Hanson's allegations could
fall within this Court's federal question jurisdiction.
However, if Plaintiff has a good-faith basis for doing so, he
may file an amended complaint within 14 days of this Order
curing the deficiencies identified above. Finally,