United States District Court, W.D. Oklahoma
L. PALK, UNITED STATES DISTRICT JUDGE.
the Court is the Report and Recommendation [Doc. No. 15] of
United States Magistrate Judge Gary M. Purcell pursuant to 28
U.S.C. § 636(b)(1)(B) and (C). Judge Purcell recommends
that the Court: (1) dismiss without prejudice Plaintiff's
claims pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure
to state a claim upon which relief may be granted; and (2)
that the dismissal count as a “prior occasion” or
“strike” pursuant to 28 U.S.C. § 1915(g).
The Magistrate Judge advised Plaintiff that he could object
to the Report and Recommendation on or before March 27, 2018.
This Court granted Plaintiff an extension of time until April
27, 2018 within which to file an objection. See
Order [Doc. No. 19]
April 6, 2018, Plaintiff filed a Request for Stay [Doc. No.
20], requesting that the Court stay this action pending the
outcome of an action brought by Plaintiff currently pending
in the United States District Court for the Eastern District
of Oklahoma, in which Plaintiff seeks relief pursuant to 28
U.S.C. § 2255. See United States v. Barron, No.
CIV-17-119-RAW, United States District Court for the Eastern
District of Oklahoma (Motion to Vacate, Set Aside or Correct
Sentence [Doc. No. 1] filed March 30, 2017). In his Request
for Stay, Plaintiff also objects to certain findings of the
Magistrate Judge in the Report and Recommendation.
fully set forth below, upon the Court's review of
Plaintiff's Motion to Stay, it appeared that no basis
exists for the Court's exercise of subject matter
jurisdiction over this matter. Therefore, on May 15, 2018,
the Court entered an Order to Show Cause [Doc. No. 21]
directing Plaintiff to show cause why the action should not
be dismissed for lack of subject matter jurisdiction.
Plaintiff has now filed his response [Doc. No. 24] to the
Court's Order to Show Cause.
Background / Relevant Procedural History
is a federal prisoner currently incarcerated at the Federal
Correctional Institution (FCI) in El Reno, Oklahoma.
Plaintiff is incarcerated pursuant to a conviction entered in
No. CR-15-73, United States District Court for the Eastern
District of Oklahoma. Petitioner's conviction was
affirmed on direct appeal. See United States v.
Barron, 677 Fed.Appx. 480 (10th Cir. 2017). And, as
noted above, Plaintiff has pending an action seeking habeas
corpus relief pursuant to 28 U.S.C. § 2255 and
challenging this same conviction.
commenced the present action on February 14, 2018, by filing
a Complaint in the United States District Court for the
Eastern District of Texas. See Compl. [Doc. No. 1].
At that time, Plaintiff was incarcerated at the FCI in
Seagoville, Texas, within the judicial confines of the United
States District Court for the Northern District of Texas. The
action was transferred to this judicial district pursuant to
28 U.S.C. § 1404(a). The court found that the
allegations of the Complaint failed to demonstrate any
relationship to the Eastern District of Texas. The court
further found that the sole named Defendant, Ronald L.
Wallace, an Oklahoma attorney who represented Plaintiff in
his criminal proceedings, is a resident of the State of
Oklahoma, and has offices located in Oklahoma City, Oklahoma,
within the confines of this judicial district. See
Order of Transfer [Doc. No. 6].
March 29, 2018, Plaintiff filed a Notice of Change of Address
[Doc. No. 18] advising this Court that he is now incarcerated
at the FCI in El Reno, Oklahoma, within the confines of this
Magistrate Judge conducted an initial review of
Plaintiff's Complaint pursuant to 28 U.S.C. §
1915(e)(2)(B) and construed the Complaint to allege: (1) a
claim brought pursuant to 42 U.S.C. § 1983 for a
violation of Plaintiff's Sixth Amendment right to the
effective assistance of counsel; and (2) a state law claim
for legal malpractice. Both claims arise from Defendant
Wallace's alleged inadequate representation of Plaintiff
in the course of the federal criminal proceedings in the
Eastern District of Oklahoma resulting in Plaintiff's
conviction in No. CR-15-73.
Magistrate Judge recommended dismissal of the § 1983
claim based on well-established law that Defendant Wallace is
not a state actor for purposes of § 1983. See
R&R at p. 5 (citing Polk County v. Dodson, 454
U.S. 312, 318 (1981)). The Magistrate Judge then found that
the state law claim for legal malpractice should be dismissed
pursuant to Oklahoma law which requires, as a prerequisite
for maintaining such an action, that the underlying
conviction has been set aside or otherwise vacated.
See R&R at 6-7 (citing Mahorney v.
Warren, 60 P.3d 38, 40 (Okla.Civ.App. 2002)). In
recommending dismissal of the state law claim, the Magistrate
Judge found that notwithstanding dismissal of the federal
claim under 42 U.S.C. § 1983, the Court would retain
jurisdiction over the state law claim based on diversity of
citizenship. The Magistrate Judge relied on the fact that
Plaintiff was at that time incarcerated in Texas and that
Defendant is an Oklahoma resident. See R&R at p.
5 n. 2 (citing 28 U.S.C. § 1332(a)(1)).
Section 1983 Claim
Request for Stay [Doc. No. 20], Plaintiff is adamant that he
is not bringing any claim for relief pursuant to 42 U.S.C.
§ 1983. See id. at 1-2. Plaintiff states that
any allegations regarding the Sixth Amendment were made
solely in reference to his pending action for §2255
relief. Id. at 2. He requests that his “filing
be permitted to proceed under the guise of ‘Legal
Malpractice' and not upon any Constitutional claim or
Sixth Amendment violation, nor any reference to §
1983.” Id. at 5. He further states:
“[a]t no time was § 1983 introduced into the
original claim for that reason” and he reiterates that
any reference to a “constitutional violation” was
only in relation to the claims raised in the pending §
2255 proceeding. Id.
Magistrate Judge noted, Plaintiff's Complaint is
“not a model of clarity” and, therefore,
understandably, under the liberal construction afforded pro
se pleadings, the Magistrate Judge construed the Complaint to
include a claim brought pursuant to 42 U.S.C. § 1983.
See R&R at 4. But the Magistrate Judge also
acknowledged that “Plaintiff does not specifically
address the statute in his pro se pleadings.”
Id. Based on Plaintiff's subsequent filing,
where he expressly states he did not intend to include ...