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Jackson v. Cross

January 16, 2008

GINGER J. JACKSON, PLAINTIFF,
v.
PAUL D. CROSS, DEFENDANT.



The opinion of the court was delivered by: Harry S. Mattice, Jr. United States District Judge

Mattice/Lee

MEMORANDUM

Ginger J. Jackson ("Plaintiff), a pro se prisoner, has filed a civil complaint against attorney Paul D. Cross ("Defendant") alleging he violated her civil rights under 42 U.S.C. § 1983 when he ineffectively and incompetently represented her in a state criminal case (Court File No. 1). As explained below, no service shall issue and this complaint (Court File No. 1) will be dismissed for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1).

I. Non-dispositive Motions

Also before the Court is Plaintiff's motion to proceed in forma pauperis (Court File No. 2), which will be DENIED as MOOT as Plaintiff has paid the filing fee. The dismissal of the complaint necessarily requires that Plaintiff's motion to appoint counsel be DENIED as MOOT (Court File No. 3).

II. Standard of Review

Pro se pleadings filed in civil rights cases are liberally construed and held to a less stringent standard than formal pleadings drafted by lawyers. McNeil v. United States, 508 U.S. 106, 113 (1993); Boag v. MacDougall, 454 U.S. 364, 365 (1982); Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996); Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991). However, pro se status does not exempt the plaintiff from the requirement that she comply with relevant rules of procedural and substantive law. Hulsey v. State of Texas, 929 F.2d 168, 171 (5th Cir. 1991); Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. 1981). Pro se plaintiffs must comply with Rule 8 of the Federal Rules of Civil Procedure which provides that a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief. . . ." LRL Properties v. Portage Metro Housing Authority, 55 F.3d 1097, 1104 (6th Cir. 1995). Although the standard of review is liberal, it does require more than the bare assertion of legal conclusions. Lillard v. Shelby County Bd. Of Educ., 76 F.3d 716, 726 (6th Cir. 1996) (standard of review for dismissing a complaint pursuant to FED. R. CIV. P. 12(b)(6)-failure to state a claim upon which relief may be granted); LRL Properties, 55 F.3d at 1103-04; Allard v. Weitzman (In re DeLorean Motor Co.), 991 F.2d 1236, 1240 (6th Cir. 1993); Hartfield v. East Grand Rapids Public Schools, 960 F. Supp. 1259, 1268 (W.D. Mich. 1997).

Although the Court normally screens prisoner's complaints pursuant to 28 U.S.C. § 1915A and § 1915(e), neither of these sections apply in the instant case as Plaintiff is not proceeding in forma pauperis nor is she seeking redress from a governmental entity, officer, or employee. Furthermore, generally, a district court may not sua sponte dismiss a complaint where the filing fee has been paid unless the court gives the plaintiff the opportunity to amend the complaint. Benson v. O'Brian, 179 F.3d 1014 (6th Cir. 1999). A district court may, however, "at any time, sua sponte dismiss a complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure when the allegations of a complaint are totally implausible, attenuated, unsubstantial, frivolous, devoid of merit, or are no longer open to discussion." Apple v. Glenn, 183 F.3d 477, 479 (6th Cir. 1999), cert. denied, 528 U.S. 1198 (2000), citing Hagans v. Lavine, 415 U.S. 528, 536-37 (1974) (citing numerous Supreme Court cases for the proposition that patently frivolous, attenuated, or unsubstantial claims divest the district court of jurisdiction, but ultimately finding the plaintiffs' claims raised under 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3) formally alleged a deprivation of constitutional rights and thus were not unsubstantial or wholly frivolous); In re Bendectin Litig., 857 F.2d 290, 300 (6th Cir.1988) (recognizing that federal question jurisdiction is divested by obviously frivolous and unsubstantial claims, but then allowing an arguably plausible claim to proceed). The requirement that a plaintiff must be given the opportunity to amend does not apply to sua sponte dismissals for lack of jurisdiction pursuant to Hagans. See Tingler v. Marshall, 716 F.2d 1109, 1111 (6th Cir. 1983).

III. Facts

Plaintiff avers that she entered into a contract with Defendant either in December 2001 or January 2002, and he agreed to represent her in her state criminal case. It appears Plaintiff was convicted, by a Franklin County jury, sometime during 2004, of soliciting the first degree murder of her ex-husband and was sentenced to a term of eight years and six months confinement in the Department of Correction. See State v. Jackson, 2005 WL 544727 (Tenn.Crim.App. 2005). Plaintiff has now filed a complaint against her counsel, alleging that his representation of her in the state criminal proceeding was deficient.

Specifically, Plaintiff contends Defendant failed to formulate and construct a defense; use rebuttal evidence, which he possessed; and cross-examine the State's witnesses to contradict the discrepancies in their testimony. Plaintiff maintains trial counsel assisted the prosecution when he permitted the State's witnesses to testify falsely without any objection and when he failed to introduce evidence that she was subjected to many years of abuse by the alleged victim. Plaintiff contends this failure resulted in harm and injury to her in the form of a conviction and jail sentence. Plaintiff avers counsel violated her civil rights when he coerced her into relinquishing her right to testify when he convinced her the jury would not believe the State's witnesses, that she would not spend a day in jail, and that she was not mentally or physically able to testify on her own behalf (Court File No. 1, p. 4). Furthermore, counsel's failure to inspect and test car keys the State claimed Plaintiff gave to the informant was negligent and careless, according to Plaintiff, because she did not give the informant any keys to the ignition of any car belonging to the alleged victim (Court File No. 1, p. 7). Finally, Plaintiff contends that she provided bank records demonstrating the alleged victim bribed the informant to setup the Plaintiff but counsel refused to address the issue during trial, and instead, waited until sentencing at which time the Judge struck the line of questioning from the record.

Plaintiff also asserts counsel was ineffective during her sentencing hearing. Specifically, counsel failed to object to the many alleged errors in the pre-sentence report, assuring Plaintiff she would be home within two hours. In addition, Plaintiff claims Defendant was negligent when he failed to prepare a complete and accurate record on appeal which resulted in the Tennessee Court of Criminal Appeals concluding all issues relative to the tape recordings were waived.

She requests the Court to find her civil rights have been violated and seeks compensatory, punitive, and future damages ...


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