Jones v. Hubbard, No. 5:2014cv00342 - Document 5 (E.D. Ky. 2014)

Court Description: MEMORANDUM OPINION & ORDER: 1) Claims filed pursuant to 42 USC 1983 are DISMISSED WIHT PREJUDICE. 2) State law claims are DISMISSED WITHOUT PREJUDICE. 3) Court will enter an appropriate judgment. 4) Matter is STRICKEN from the active docket. Signed by Judge Joseph M. Hood on 8/20/2014.(SCD)cc: Pro Se Pla(via US Mail)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION at LEXINGTON A. T. JONES, JR., ) ) ) ) ) ) ) ) ) Plaintiff, V. CARROLL HUBBARD, Defendant. *** A. T. Northpoint without Jones, Jr., Training an attorney, *** is Center *** prisoner in Burgin, has pursuant to 42 U.S.C. § 1983. MEMORANDUM OPINION AND ORDER *** a Jones Civil No. 5: 14-342-JMH filed [R. 1] incarcerated Kentucky. a civil at the Proceeding rights action The Court has granted his motion to proceed in forma pauperis by separate Order. On January 12, 1998, Jones was convicted in the Circuit Court of McCracken County, Kentucky, of multiple counts of robbery and burglary, as well being a persistent felony offender in the first degree. The full term expiration date of Jones s sentences is January 14, 2223.1 In his complaint, Jones alleges that in 2010 he paid $5,000.00 to Carroll Hubbard, an attorney residing in Paducah, Kentucky, to use his political clout to obtain leniency with the Kentucky Department of Probation and Parole. Jones contends, however, that Hubbard made no effort to contact the 1 See http://apps.corrections.ky.gov/KOOL/Details/234066. parole board or to obtain a reduction in the amount of time he must serve. Jones therefore claims that that Hubbard failed to uphold his end of the agreement, which causes our agreement to become void, and to have no other legal authority. 2-3] [R. 1, pp. In 2012, Jones requested a full refund of the $5,000.00 he paid, but Hubbard returned only $1,000.00 without explanation as to the expenditure of the remainder. Jones indicates that he has suffered stress and depression as a result of Hubbard s actions. Id. at 4. Jones contends that Hubbard s actions violate the Fifth, Sixth, Eighth, and Fourteenth various Amendments sections statutes. of to the the United Kentucky States Constitution, Constitution and and Kentucky He seeks a refund of the remaining $4,000.00 with interest, as well as $100,000.00 in compensatory damages for pain and suffering. The Court [R. 1, pp. 5-6, 10] must conduct a preliminary review of Jones s complaint because he has been granted permission to pay the filing fee in installments and because he asserts claims against government district officials. court malicious, must fails to 28 U.S.C. §§ dismiss any claim state claim a 1915(e)(2), upon that is which 1915A. A frivolous or relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. McGore v. Wrigglesworth, 114 F.3d 601, 607-08 (6th Cir. 1997). The Court evaluates Jones s complaint under a 2 more lenient attorney. standard because he is not represented by an Erickson v. Pardus, 551 U.S. 89, 94 (2007); Burton v. Jones, 321 F.3d 569, 573 (6th Cir. 2003). At this stage, the Court accepts the plaintiff s factual allegations as true, and his legal claims are liberally construed in his favor. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). Jones s claims that Hubbard violated his constitutional rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments fail as a matter of law, and must be dismissed with prejudice. To successfully assert a claim under 42 U.S.C. § 1983, a plaintiff must establish that the defendant acted under color of state law, and that the defendant s conduct deprived the plaintiff of rights secured under federal law. Cf. Fritz v. Charter Tp. of Comstock, 592 F.3d 718, 722 (6th Cir. 2010). The amendments found in the Bill of Rights proscribe certain conduct by officials acting on behalf of the government. But wholly private conduct by ordinary citizens, no matter how discriminatory or wrongful, does not violate the Constitution, and is not actionable under Section 1983. American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). Therefore courts have consistently held that attorneys retained by the plaintiff who performed only the normal functions of private counsel are not state actors who may be sued under § 1983. Polk Co. v. Dodson, 454 U.S. 312 (1981); Cudejko v. Goldstein, 3 22 F. App x 484, 485 (6th Cir. 2001). Jones s constitutional claims therefore fail as a matter of law, and must be dismissed. The Court will also dismiss Jones s claims arising under state law, but it will do so without prejudice to his right to reassert them in a state court action if he chooses to do so. Jones essentially malpractice, complains although his that legal Hubbard claims committed assert that legal Hubbard breached their contract, violated the Kentucky constitution and various Kentucky statutes, and perhaps that Hubbard committed the tort of outrage. But the Court lacks subject matter jurisdiction over these claims because they present no federal question under 28 U.S.C. § 1331, nor are the parties (both residents of Kentucky) diverse in their citizenship as required by 28 U.S.C. § 1332. Cf. McCoy v. Stokes, No. 2:12-CV-655, 2012 WL 3929832, at *3 (S.D. Ohio Sept. 10, 2012). Further, because the federal claims asserted in the complaint have been dismissed so early in the proceedings, the Court declines to exercise supplemental jurisdiction over them. 28 U.S.C. § 1367(c)(3) provides that a district court may decline to exercise supplemental jurisdiction over a claim [if] the district court has dismissed all claims over which it has original jurisdiction ... ). dismissed all concludes that of the the Where, as here, the Court has plaintiff s balance of federal judicial 4 claims, economy, the Court convenience, fairness, and jurisdiction. comity all point toward declining supplemental Carnegie Mellon University v. Cohill, 484 U.S. 343 (1988); Musson Theatrical, Inc. v. Federal Exp. Corp., 89 F.3d 1244, 1255 (6th Cir. 1996) (noting that [a]fter a 12(b)(6) dismissal, there is a strong presumption in favor of dismissing supplemental claims. ). The Court will therefore dismiss the plaintiff s state law claims without prejudice. Accordingly, IT IS ORDERED that: 1. Jones s claims filed pursuant to 42 U.S.C. § 1983 are DISMISSED WITH PREJUDICE. 2. Jones s state law claims, including but not limited to breach of contract and emotional distress, are DISMISSED WITHOUT PREJUDICE. 3. The Court will enter an appropriate judgment. 4. This matter is STRICKEN from the active docket. This the 20th day of August, 2014. 5

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