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Barron v. Wallace

United States District Court, W.D. Oklahoma

July 10, 2018

RICKY DALE BARRON, Plaintiff,
v.
RONALD L. WALLACE, and in his individual and professional capacity, Defendant.

          ORDER

          SCOTT L. PALK, UNITED STATES DISTRICT JUDGE.

         Before 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]

         On 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.

         As more 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.

         I. Background / Relevant Procedural History

         Plaintiff 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.

         Plaintiff 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].

         On 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 judicial district.

         II. Discussion

         The 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.

         The 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)).

         A. Section 1983 Claim

         In his 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.

         As the 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 ...


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