United States District Court, W.D. Oklahoma
HEATON, CHIEF U.S. DISTRICT JUDGE.
case arises out of plaintiff Timothy Holz's challenge to
his sentence for a federal bank robbery conviction. Following
a plea of guilty, plaintiff was sentenced by another judge in
this district to 210 months imprisonment for the bank robbery
offense. No. CR-01-211-C [Doc. # 38]. Plaintiff later filed a
motion to vacate the sentence. Counsel was appointed for him
in connection with the motion, and Terri Coulter, the
defendant in this case, was later substituted as that
counsel. The motion to vacate was eventually denied by the
court. Mr. Holz has appealed that determination, which is
apparently still pending.
case, plaintiff Holz asserts claims against his former
attorney Coulter. The plaintiff is proceeding pro se
here and some of his claims are not altogether clear.
However, he appears to assert claims for violation of his
First, Fifth and Sixth Amendment rights as well as
malpractice claims under state law. All the claims are
directed to Coulter's alleged conduct in her
representation of plaintiff in the § 2255 proceeding.
filed this case in the District Court of Oklahoma County,
Oklahoma, and defendant Coulter removed the case to this
court. Coulter has now moved to dismiss plaintiff's
claims. Plaintiff did not respond to the motion in timely
fashion. However, as the non-response may have been related
to a change in plaintiff's address, the court granted
plaintiff additional time to respond to the motion. He has
now filed a further pleading [Doc. #9] which more or less
responds to the motion. Plaintiff's response includes the
suggestion that this case was improperly removed from state
court. Defendant Coulter has since filed a response/reply
suggesting that any objection to the propriety of removal is
court concludes plaintiff's objection to the removal,
however inartfully stated, is valid and that this case must
general proposition, an objection to removal of a case from
state court must be asserted within thirty days of the
removal. However, as defendant Coulter's response
acknowledges, that limit applies only as to defects in the
removal “other than lack of subject matter jurisdiction
. . . .” 28 U.S.C. § 1447(c). Here, the court
concludes the pertinent defect in the removal goes to subject
matter jurisdiction, so timeliness does not bar consideration
of the remand question.
removed the case based on the existence of a federal
question. See 28 U.S.C. § 1331. And, as noted
above, Mr. Holz asserts claims based on the alleged violation
by Coulter of various federal constitutional rights. While
his pro se petition does not mention either 42
U.S.C. § 1983 or Bivens v. Six Unknown Named Agents
of Fed. Bureau of Narcotics, 403 U.S. 388
(1971), that statute and case are the most common bases for
causes of action asserting constitutional claims against
public officials. Pahls v. Thomas, 718 F.3d 1210,
1225 (10th Cir. 2013). So the question here becomes whether or
not Mr. Holz has stated a colorable federal claim sufficient
under either § 1983 or Bivens to invoke federal
state a claim under either Section 1983 or Bivens, a
plaintiff must show that the defendant committed the alleged
violations under the color of state or federal law. This
requirement is jurisdictional. See Polk Cnty. v.
Dodson, 454 U.S. 312, 315 (1981) (Section 1983 requires
that the official act under color of state law); Wideman
v. Watson, 617 Fed.Appx. 891, 893-94 (10th Cir. 2015)
(no subject-matter jurisdiction over Bivens claim
where defendants were not acting under color of federal law).
A public defender, although an employee of a state agency,
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
Cnty. at 325. That principle also applies to attorneys
who are appointed by federal courts as defense counsel in
both the Section 1983 and Bivens contexts. See
Lemmons v. Law Firm of Morris & Morris, 39 F.3d 264,
266 (10th Cir. 1994) (Section 1983); Haley v.
Walker, 751 F.2d 284, 285 (10th Cir. 1984)
(Bivens); see also Allred v. McCaughey, 257
Fed.Appx. 91, 92-93 (10th Cir. 2007).
it is clear that all of plaintiff's claims are based on
actions allegedly taken by Ms. Coulter in the course of her
representation of him in the federal habeas proceeding.
is no basis alleged for concluding anything other than that
she was performing a lawyer's traditional functions as
his counsel. There is therefore no basis alleged for
concluding that Ms. Coulter was acting under color of state
or federal law in connection with the alleged acts upon which
plaintiff relies. The result is that the plaintiff has not
stated a colorable federal claim, and this court therefore
lacks subject matter jurisdiction to resolve the broader
controversy. See Lay v. Otto, 530 Fed.Appx. 800,
802-03 (10th Cir. 2013). The case must therefore be remanded.
28 U.S.C. § 1447(c) (“If at any time before final
judgment it appears that the district court lacks subject
matter jurisdiction, the case shall be remanded.”)
case is REMANDED to the District Court of
Oklahoma County, State of Oklahoma. Each party shall bear
their own costs and expenses in connection with the removal.
IS SO ORDERED.