UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

HENRY N. HARPER,

Plaintiff,

Civil Action 2:11-cv-00939

v. Judge Peter C. Economus

Magistrate Judge E.A. Preston Deavers

LINDSEY K. DONEHUE, et al.,

Defendants.

ORDER AND REPORT AND RECOMMENDATION

Plaintiff Henry Harper’s Motion for Leave to Proceed in forma pauperis is GRANTED. 

(ECF No. 1.) Plaintiff is required to pay the full amount of the Court’s $350 filing fee. 28

U.S.C. § 1915(b)(1). Plaintiff’s application, however, reveals that he currently possesses

insufficient funds to pay the full filing fee.

Pursuant to 28 U.S.C. § 1915(b)(1), the custodian of Plaintiff’s inmate trust account

(Inmate A638859) at the Chillicothe Correctional Institution is DIRECTED to submit to the

Clerk of the United States District Court for the Southern District of Ohio as an initial partial

payment, 20% of the greater of either the average monthly deposits to the inmate trust account or

the average monthly balance in the inmate trust account, for the six-months immediately

preceding the filing of the Complaint. 

After full payment of the initial, partial filing fee, the custodian shall submit 20% of the

inmate’s preceding monthly income credited to the account, but only when the amount in the

account exceeds $10.00 until the full fee of $350.00 has been paid to the Clerk of this Court. 28

U.S.C. § 1915(b)(2). See McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997). 

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Checks should be made payable to: Clerk, United States District Court. The checks

should be sent to:

Prisoner Accounts Receivable

260 U.S. Courthouse

85 Marconi Boulevard

Columbus, Ohio 43215

The prisoner’s name and this case number must be included on each check. 

It is ORDERED that Plaintiff be allowed to prosecute his action without prepayment of

fees or costs and that judicial officers who render services in this action shall do so as if the costs

had been prepaid. 

This matter is also before the Court for an initial screen of the Complaint pursuant to 28

U.S.C. §§ 1915(e)(2) and 1915A. Plaintiff, a pro se prisoner, attempts to bring this action

against the trial attorney who represented him in his criminal case for constitutional violations,

negligence, and malpractice. For the reasons that follow, it is RECOMMENDED that the Court

DISMISS Plaintiff’s purported federal causes of action for failure to state a claim. Additionally,

it is RECOMMENDED that the Court DECLINE to exercise supplemental jurisdiction over

Plaintiff’s remaining state law claims and that the Court DISMISS these claims pursuant to 28

U.S.C. § 1367(c)(3) without prejudice.

Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to

“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992). 

In doing so, however, “Congress recognized that ‘a litigant whose filing fees and court costs are

assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from

filing frivolous, malicious, or repetitive lawsuits.’” Id. at 31 (quoting Neitzke v. Williams, 490

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U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e)1

 as part of the

statute, which provides in pertinent part:

(2) Notwithstanding any filing fee, or any portion thereof, that may have been

paid, the court shall dismiss the case at any time if the court determines that-- 

***

(B) the action or appeal--

 (i) is frivolous or malicious; 

(ii) fails to state a claim on which relief may be granted; or . . . .

28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31; see also 28 U.S.C. § 1915A

(requiring the Court to screen a prisoner’s complaint “as soon as practicable” and dismiss any

portion of a the complaint if it is frivolous, malicious, or fails to state a claim). Thus, § 1915(e)

and § 1915A require sua sponte dismissal of an action upon the Court’s determination that the

action is frivolous or malicious, or upon determination that the action fails to state a claim upon

which relief may be granted. 

To properly state a claim upon which relief may be granted, a plaintiff must satisfy the

basic federal pleading requirements set forth in Fed. R. Civ. P. 8(a). See also Hill v. Lappin, 630

F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure 12(b)(6) standards

to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). Although this pleading standard

does not require “‘detailed factual allegations,’ . . . [a] pleading that offers ‘labels and

conclusions’ or ‘a formulaic recitation of the elements of a cause of action,’” is insufficient. 

Ashcroft v. Iqbal, 566 U.S. ----, ----, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v.

1

Formerly 28 U.S.C. § 1915(d). 

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Twombly, 550 U.S. 544, 555 (2007)). Furthermore, a complaint will not “suffice if it tenders

‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at

557). Instead, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6) of

the Federal Rules of Civil Procedure, “a complaint must contain sufficient factual matter . . . to

‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570). 

Facial plausibility is established “when the plaintiff pleads factual content that allows the court

to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. 

In this case, Plaintiff’s allegations revolve around Defendant Lindsey K. Donehue’s

conduct as his criminal defense attorney. Plaintiff maintains that through her representation of

him, Defendant Donehue violated his Fifth, Sixth, and Fourteenth Amendment rights. Plaintiff

highlights several purported deficiencies in Defendant Donehue’s conduct including a failure to

call witnesses, file motions, and seek evidence. Additionally, Plaintiff raises state law claims for

negligence and legal malpractice.

Plaintiff’s Complaint fails to state any federal cause of action. Construing Plaintiff’s pro

se Complaint liberally, as the Court must, it appears that Plaintiff is attempting to bring his

federal claims pursuant to 42 U.S.C. § 1983 for violation of his constitutional rights. 

Nevertheless, in order to succeed on a § 1983 claim, Plaintiff must demonstrate that Defendants

“acted under color of law . . . .” Johnson-Kurek v. Abu-Absi, 423 F.3d 590, 595 (6th Cir. 2005). 

“It is well-settled that a lawyer representing a client is not a state actor ‘under color of law’

within the meaning of § 1983.” Dallas v. Holmes, 137 F. App’x 746, 752 (6th Cir. 2005) (citing

Polk County v. Dodson, 454 U.S. 312, 318 (1981)). Consequently, “[a] defense attorney

engaging in the traditional functions of a lawyer representing a client in a criminal proceeding is

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not acting for the state for purposes of Section 1983.” Garcia v. Nerlinger, No. 1:10–cv–788,

2011 WL 1395595, at *1 (S.D. Ohio April 12, 2011). Here, the conduct that forms the basis of

Plaintiff’s claims falls squarely within the traditional functions of a lawyer representing a client. 

Accordingly, Plaintiff has failed to allege sufficient state action for the purposes of his federal

claims.

Plaintiff also brings state-law claims for negligence and legal malpractice. Even

assuming that Plaintiff’s attempt to state federal claims is sufficient to give the Court subject

matter jurisdiction,2 the Court should decline to exercise supplemental jurisdiction. Under 28

U.S.C. § 1367(c)(3), the Court may decline to exercise supplemental jurisdiction when the Court

“has dismissed all claims over which it has original jurisdiction.” The United States Court of

Appeals for the Sixth Circuit has held that “[i]f the federal claims are dismissed before trial, the

state claims generally should be dismissed as well .” Brooks v. Rothe, 577 F.3d 701, 709 (6th

Cir. 2009) (internal quotations omitted). In this case, Plaintiff’s Complaint indicates that the

parties are not diverse. Moreover, for the reasons described above, the Court should dismiss any

potential federal causes of action for failure to state a claim. Under these circumstances, the

Court should also decline to exercise supplemental jurisdiction over the remaining state law

claims pursuant to 28 U.S.C. § 1367(c)(3). 

For the above reasons, it is RECOMMENDED that the Court DISMISS Plaintiff's

purported federal causes of action for failure to state a claim. Moreover, it is

RECOMMENDED that the Court DECLINE to exercise supplemental jurisdiction over

2

 Because the Court recommends that the Court decline jurisdiction, it is unnecessary to

reach this question. 

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Plaintiff’s remaining state law claims and that the Court DISMISS these claims without

prejudice.

If any party seeks review by the District Judge of this Report and Recommendation, that

party may, within fourteen (14) days, file and serve on all parties objections to the Report and

Recommendation, specifically designating this Report and Recommendation, and the part in

question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). 

Response to objections must be filed within fourteen (14) days after being served with a copy.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object to the Report and

Recommendation will result in a waiver of the right to de novo review by the District Judge and

waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex

Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate

judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district

court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that

defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to

magistrate judge's report and recommendation). Even when timely objections are filed, appellate

review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 981, 994

(6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to specify the

issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation omitted)).

Date: November 18, 2011 /s/ Elizabeth A. Preston Deavers 

 Elizabeth A. Preston Deavers

 United States Magistrate Judge

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