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Cook v. Brandt

March 27, 2008

BRYANT A. COOK, PLAINTIFF,
v.
JEFFREY M. BRANDT, DEFENDANT.



The opinion of the court was delivered by: Judge Mattice

MEMORANDUM AND ORDER

Bryant A. Cook ("Cook"), a pro se federal prisoner, has filed a civil complaint alleging that his former attorney, Jeffrey M. Brandt ("Brandt"), committed legal malpractice by failing to timely file an appeal from the denial of his 28 U.S.C. § 2255 motion for post conviction relief, despite the fact that the district court granted Cook a certificate of appealability as to one of his § 2255 claims (Court File No. 3).

Brandt has filed a motion to dismiss the complaint with prejudice on several grounds under Fed. R. Civ. P. 12(b)(1) and (6) (Court File No. 7). Plaintiff has filed a response and a request for the Court to consider additional documents before ruling on the Defendant's motion to dismiss (Court File No. 9). Accordingly, since the Court will consider documents outside the pleadings, specifically the documents attached to Cook's response (Court File No. 9), the Court will treat this motion as a motion for summary judgment under Fed. R. Civ. P. 56. See Fed. R. Civ. P. 12(d).*fn1

After reviewing the record, the Court concludes that summary judgment is warranted on the ground that the complaint is time-barred since it was filed subsequent to the expiration of the one-year statute of limitations. It is not necessary for the Court to consider Brandt's other grounds for dismissal or reach the merits of the complaint (Court File No. 7).*fn2 For the following reasons, the Court will GRANT Brandt's motion to dismiss or motion for summary judgment (Court File No. 7).

I. STANDARDS OF REVIEW

A. Pleadings Pro se pleadings filed in civil rights cases are liberally construed and are 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). Pro se status does not, however, exempt the plaintiff from the requirement that he 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(a)(2) 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 for pro se pleadings, 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).

B. Summary Judgment

Summary judgment is appropriate where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In ruling on a motion for summary judgment, the Court must view the facts contained in the record and all reasonable inferences that can be drawn from those facts in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); National Satellite Sports, Inc. v. Eliadis Inc., 253 F.3d 900, 907 (6th Cir. 2001). The Court cannot weigh the evidence or determine the truth of any matter in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

The moving party bears the initial burden of demonstrating that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To refute such a showing, the non-moving party must present some significant, probative evidence indicating the necessity of a trial for resolving a material, factual dispute. Celotex Corp., 477 U.S. at 322. A mere scintilla of evidence is not enough. Anderson, 477 U.S. at 252; McLean v. Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). The Court's role is limited to determining whether the record contains sufficient evidence from which an objectively reasonable jury could find for the non-moving party. Anderson, 477 U.S. at 248, 249; National Satellite Sports, 253 F.3d at 907. II. FACTUAL AND PROCEDURAL BACKGROUND

Cook filed a pro se motion under 28 U.S.C. § 2255 in this Court on or about October 11, 2000. See Cook v. USA, Civil Action No. 1:00-cv-342 (E.D. Tenn. Aug. 5, 2005). While his § 2255 motion was pending, Cook entered into a contract with Brandt on or about March 15, 2005, hiring Brandt to represent him in the § 2255 proceeding. The contract of employment expressly provided that the agreement only "covers the law firm's work concerning the motion and action under 28 U.S.C. § 2255 filed in the district court and that if further litigation or action is necessary after the conclusion of the motion (the final decision of the district court on the action filed), an additional flat fee will be necessary for further work." (Court File No. 3, Exhibit D).*fn3

After the Court rendered its opinion and dismissed the § 2255 motion, Brandt filed, on Cook's behalf, a motion for reconsideration, see United States v. Cook, Civil Action No. 1:00-cv-342 (Court File No. 48) and a motion for an extension of time in which to file a notice of appeal (Court File No. 49) both of which the Court denied by an Order entered on February 8, 2006 (Court File No. 53). Brandt subsequently filed, on Cook's behalf, a motion to alter the Court's February 8, 2006, Memorandum and Order (Court File No. 54) which the Court denied (Court File No. 55). Brandt appealed the decision denying the motion for reconsideration but did not appeal the denial of the motion requesting an extension of time in which to file a notice of appeal (Court File No. 56). The Sixth Circuit concluded that the appeal of the denial of the § 2255 motion was untimely (Court File No. 58). The Sixth Circuit decided that the district court did not err in denying Cook's motion to alter judgment (Court File No. 59).

In sum, the district court entered its denial of Cook's § 2255 motion on August 8, 2005, but Brandt failed to file a timely notice of appeal which was due on October 7, 2005.*fn4 Any Fed.R.App.P. 4(a)(5) motion for an extension of time in which to file a notice of appeal was due no later than November 7, 2005. Defendant filed a motion for extension of time to file a notice of appeal on November 4, 2005, but the Court, referring to August 5, 2005, as the date judgment was entered dismissing Cook's § 2255 motion, when in fact the judgment was entered on August 8, 2005, denied that motion, finding that it did not have any authority under Fed. R. App. P. 4(a)(5) to enlarge or extend the deadline of November 3, 2005, for Plaintiff to file his motion for extension of time (Court File No. 53).*fn5 Unfortunately, that error was not brought to the district court's attention nor appealed to the Sixth Circuit. Counsel only appealed the portion of the district court's decision denying the motion for reconsideration (Court File No. 56). Ultimately, the Sixth Circuit dismissed the appeal of the district court's denial of his § 2255 motion*fn6 concluding it was untimely under Rule 4 of the Federal Rules of Appellate Procedure.

On March 6, 2006, Cook wrote Brandt identifying Brandt's failure to file a timely appeal as one of several reasons for terminating him from further representation in his ยง 2255 matter. In this letter, Cook requested a full refund of fees. Cook additionally authored two more letters making the same request, the last letter was written on November 7, 2006 ...


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