United States District Court, W.D. Oklahoma
ROBERT V. WONSCH, Plaintiff,
JAMES RADFORD, Defendant. v.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE
Wonsch (Plaintiff), a Cleveland County pre-trial detainee
appearing pro se, filed this action in the District Court of
Cleveland County against “James Radford, attorney at
[l]aw who is contracted by O.I.D.S.” Doc. 1, Ex. 2, at
1. Plaintiff named Defendant Radford in both his individual
and official capacities, seeking monetary relief for alleged
constitutional rights violations by Defendant Radford in his
representation of Plaintiff in a state court criminal
proceeding. Id. Specifically, Plaintiff alleged
Defendant Radford violated his claimed
“[c]onstitutional [r]ight[s]” “to [a]ssist
in [his] [c]riminal [t]rial, ” “to
[s]elf-[r]epresentation, ” “to [a]ccess the
[c]ourts, ” and “to [f]ile [m]otion(s) for [b]ond
[r]eview.” Id. Plaintiff further claims
Defendant Radford has provided “[i]ncompetent [l]egal
[r]epresentation, ” has “[r]efus[ed] to
[s]ubpoena [e]vidence, has [r]efus[ed] to [c]ommunicate, has
“[d]epriv[ed him] access to [a]ll [e]vidence [a]gainst
[him], ” and has engaged in “[f]raudul[l]ent
[b]illing on [his] case.” Id.
Radford filed a notice of removal under 28 U.S.C. §
1441(a) on November 9, 2017, asserting this Court “has
original subject matter jurisdiction over this case's
claims pursuant to 28 U.S.C. §§ 1331, (federal
question) [and] supplemental jurisdiction over this
case's claims pursuant to 28 U.S.C. § 1367.”
Doc. 1, at 2. He attached copies of the motions to add
additional claims and defendants that Plaintiff had filed,
id. at Exs. 3, 4, and the District Court of
Cleveland County had granted on October 17, 2017.
Id. Ex. 6, at 4-5. He noted-correctly-that “[a]t
the time of removal, the Plaintiff ha[d] not filed an Amended
Petition or . . . caused process to be issued and served
upon” any additional Defendant. Doc. 1, at 2 n.1.
States District Judge Stephen P. Friot has referred the
matter to the undersigned Magistrate Judge for proceedings
consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 4.
Following preliminary review, the undersigned recommends
remand of the action to state court because this Court lacks
Plaintiff, understandably, did not allege a basis for federal
claims in his state court civil action, he complained that
Defendant Radford acted in contravention of his federal
constitutional rights in his criminal proceeding. Doc. 1, Ex.
2, at 1. And, as Defendant Radford submits, Plaintiff's
civil action to enforce “certain constitutional
rights” is consistent with the remedy provided under 42
U.S.C. § 1983. Doc. 2, at 4. Nonetheless, under his own
construction, Defendant Radford improvidently removed
Plaintiff's case from state court. This is so because
“state public defenders do ‘not act under color
of state law when performing a lawyer's traditional
functions as counsel to a defendant in a criminal
proceeding.'” Lay v. Otto, 530 F.
App'x 800, 802 (10th Cir. 2013) (quoting Polk Cty. v.
Dodson, 454 U.S. 312, 325 (1981)). And [t]his element is
“a jurisdictional requisite for a § 1983
action.'” Id. (quoting Polk Cty.,
454 U.S. at 315).
Court, therefore, lacks subject-matter jurisdiction over this
action. And under 28 U.S.C. § 1447(c), “[i]f at
any time before final judgment it appears that the district
court lacks subject matter jurisdiction, the case shall be
Recommendation and notice of right to object.
undersigned recommends remand of this action to state court
under 28 U.S.C. § 1447(c) for lack of subject matter
undersigned advises the parties of their right to file an
objection to this Report and Recommendation with the Clerk of
Court by January 4, 2018, under 28 U.S.C. § 636(b)(1)
and Fed.R.Civ.P. 72(b)(2). The undersigned further advises
the parties that failure to make a timely objection to this
Report and Recommendation waives the right to appellate
review of both factual and legal questions contained herein.
See Moore v. United States, 950 F.2d 656, 659 (10th
Report and Recommendation disposes of all issues referred to
the Magistrate Judge in this matter.