United States District Court, E.D. Michigan, Southern Division
ORDER GRANTING MOTION TO PROCEED, GRANTING
APPLICATION TO PROCEED WITHOUT PREPAYING FEES OR COSTS, OF
SUMMARY DISMISSAL, FINDING ANY APPEAL FRIVOLOUS, AND DENYING
LEAVE TO APPEAL IN FORMA PAUPERIS
PAGE HOOD CHIEF JUDGE.
Chauncey Thommasswift, a state inmate incarcerated at the
Parnall Correctional Facility in Jackson, Michigan, has filed
a pro se civil complaint. Plaintiff previously withdrew the
complaint. (Doc. Nos. 6, 7) Plaintiff now seeks to proceed
with this matter and has now submitted an application to
proceed without prepaying fees or costs. After review of the
application, the Court grants Plaintiff's application to
proceed in forma pauperis without prepaying fees or costs
under 28 U.S.C. § 1915(a)(1). However, for the reasons
set forth below, the court summarily dismisses the complaint.
complaint names Randall P. Upshaw and the Law Office of
Randall P. Upshaw (Plaintiff's criminal trial counsel),
as defendants. The complaint alleges legal malpractice
against Defendants, along with federal law and constitutional
violations under 18 U.S.C. § 1964 and the Fourth, Sixth
and Fourteenth Amendments of the United States Constitution.
(Doc. No. 1, PgID 1) Plaintiff seeks monetary damages.
complaint filed by a pro se prisoner is subject to
the screening requirements of 28 U.S.C. § 1915(e)(2).
Brown v. Bargery, 207 F.3d 863, 866 (6th Cir. 2000).
Section 1915(e)(2) requires district courts to screen and to
dismiss complaints that are frivolous, fail to state a claim
upon which relief can be granted, or that seek monetary
relief from a defendant who is immune from such relief. 28
U.S.C. § 1915(e)(2); McGore v. Wigglesworth,
114 F.3d 601, 604 (6th Cir. 1997)(rev'd on other
grounds). A complaint is frivolous and subject to sua
sponte dismissal under § 1915(e) if it lacks an arguable
basis in either law or fact. Neitzke v. Williams,
490 U.S. 319, 325 (1989). A plaintiff fails to state a claim
upon which relief may be granted, when, construing the
complaint in a light most favorable to the plaintiff and
accepting all the factual allegations as true, the plaintiff
undoubtedly can prove no set of facts in support if his
claims that would entitle him to relief. Sistrunk v. City
of Strongsville, 99 F.3d 194, 197 (6th Cir. 1996);
Cline v. Rogers, 87 F.3d 176, 179 (6th Cir. 1996);
Wright v. MetroHealth Med. Ctr., 58 F.3d 1130, 1138
(6th Cir. 1995). Federal courts hold the pro se
complaint to a “less stringent standard” than
those drafted by attorneys. Haines v. Kerner, 404
U.S. 519 (1972).
Plaintiff's legal malpractice claim, the Court lacks
subject matter jurisdiciton over this claim. Liberally
construing Plaintiff's Complaint, he alleges that
Defendants committed a state law claim of legal malpractice
in the handling of his case.
presence or absence of jurisdiction to hear a case is the
“first and fundamental question presented by every case
brought to the federal courts.” Caudill v. N. Am.
Media Corp., 200 F.3d 914, 916 (6th Cir. 2000). Federal
courts have a duty to consider their subject matter
jurisdiction in every case and may raise the issue sua
sponte or on its own. Answers in Genesis of Ky.,
Inc. v. Creation Ministries Int'l, Ltd., 556 F.3d
459, 465 (6th Cir. 2009). “Federal Courts are courts of
limited jurisdiction. They possess only that power authorized
by Constitution and statute.” Kokkonen v. Guardian
Life Ins. Co. of America, 511 U.S. 375, 377 (1994). The
burden of establishing jurisdiction rests upon the party
asserting jurisdiction. Id. The presumption is that
a federal court lacks jurisdiction in a particular case until
it has been demonstrated that jurisdiction over the subject
matter exists. Lehigh Mining & Mfg. Co. v.
Kelly, 160 U.S. 327 337 (1895). The facts showing the
existence of jurisdiction must be affirmatively alleged in
the Complaint. McNutt v. General Motors Acceptance
Corp., 298 U.S. 178 (1936); Fed.R.Civ.P. Rule 8(a)(1).
Court finds that Plaintiff failed to establish that the Court
has subject matter jurisdiction over the legal malpractice
claim under 28 U.S.C. § 1332. Section 1332 provides the
Court with subject matter jurisdiction over claims alleging a
state law question based on state statutes and laws if there
is complete diversity of citizenship between the parties-that
the parties are citizens of different states. In this case,
all of the parties are citizens of the State of Michigan.
There is no diversity of citizenship between the parties. A
legal malpractice claim against a plaintiff's attorney is
a negligence claim under state law. See Coleman v.
Gurwin, 443 Mich. 59, 63 (1993). Plaintiff failed to
meet his burden that this Court has subject matter over the
legal malpractice claim against Defendants. The legal
malpractice claim must be dismissed for lack of subject
also alleges that the actions of Defendants violated federal
constitutional rights under the Fourth and Fourteenth
Amendments to be free from unreasonable search and seizure of
his person, and, under the Sixth Amendment to have the
assistance of counsel for his defense and compulsory process
for obtaining witnesses in his favor. As a result of these
constitutional violations his freedom of liberty was
violated. (Doc. No. 1, PgID 2)
extent Plaintiff is asserting constitutional claims under 42
U.S.C. § 1983 against Defendants, there is no viable
federal claim because Plaintiff's counsel was not acting
under the color of state since counsel was acting as a
private defense counsel for Plaintiff and was not a state