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Wonsch v. Radford

United States District Court, W.D. Oklahoma

December 15, 2017

ROBERT V. WONSCH, Plaintiff,
v.
JAMES RADFORD, Defendant. v.

          REPORT AND RECOMMENDATION

          SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE

         I. Background.

         Robert 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.”[1] 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.

         Defendant 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[2]-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.

         United 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 subject-matter jurisdiction.[3]

         II. Analysis.

         While 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.[4] 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).

         This 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 remanded.”

         III. Recommendation and notice of right to object.

         The undersigned recommends remand of this action to state court under 28 U.S.C. § 1447(c) for lack of subject matter jurisdiction.

         The 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 Cir. 1991).

         This Report and Recommendation disposes of all issues referred to the Magistrate Judge in this matter.

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