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Gregory L. Gould, Jr v. Schmidt & Kramer

June 20, 2012

GREGORY L. GOULD, JR., PLAINTIFF
v.
SCHMIDT & KRAMER, P.C., ET AL., : DEFENDANTS



The opinion of the court was delivered by: Chief Judge Kane

(Magistrate Judge Blewitt)

MEMORANDUM

Before the Court is Magistrate Judge Blewitt's May 15, 2012 Report and Recommendation, advising that Plaintiff's complaint be dismissed with prejudice. (Doc. No. 6.) Plaintiff filed objections to the Report and Recommendation on June 1, 2012. (Doc. No. 7.) For the reasons that follow, the Court will adopt the Report and Recommendation and will dismiss the complaint with prejudice.

I. BACKGROUND

On May 8, 2012, Plaintiff Gregory L. Gould, Jr., an inmate at the State Correctional Institution at Rockview, filed a pro se complaint with the Court, pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1331. (Doc. No. 1.) Plaintiff also filed a motion for leave to proceed in forma pauperis. (Doc. No. 2.) The background of this matter is set forth in more detail in Magistrate Judge Blewitt's Report and Recommendation; however, the Court will briefly summarize the pertinent details. Plaintiff alleges that Defendants Schmidt & Kramer, P.C. and Scott B. Cooper, Esq. accepted a settlement on behalf of Plaintiff's minor daughter for the alleged wrongful death of her mother in a car accident without obtaining Plaintiff's consent. (Doc. No. 1 at 3-4.) Plaintiff raises a legal malpractice claim, as well as state-law claims of unjust enrichment and misrepresentation based on the attorney's alleged misrepresentation to the court that Plaintiff's father was the child's guardian and approved the settlement. (Id. at 1, 3.) On May 15, 2012, Magistrate Judge Blewitt recommended that the complaint be dismissed with prejudice, pursuant to the screening requirements of the Prison Litigation Reform Act, 28 U.S.C. § 1915(e), as it articulated only state-law claims over which this Court lacks jurisdiction. (Doc. No. 6.) On June 1, 2012, Plaintiff filed a set of objections to the Report and Recommendation. (Doc. No. 7.)

II. STANDARD OF REVIEW

The Magistrate Act, 28 U.S.C. § 636, and Federal Rule of Civil Procedure 72(b), provide that any party may file written objections to a magistrate's proposed findings and recommendations. In deciding whether to accept, reject, or modify a Report and Recommendation, a Court must make a de novo determination of those portions of the Report and Recommendation to which objection is made. 28 U.S.C. § 636(b)(1).

III. DISCUSSION

In his Report and Recommendation, Magistrate Judge Blewitt recommended that the complaint be dismissed with prejudice, as Plaintiff failed to state a federal cause of action. (Doc. No. 6.) On June 1, 2012, Plaintiff filed objections to the Report and Recommendation. (Doc. No. 7.) First, Plaintiff argues that even if 42 U.S.C. § 1983 does not apply, the Court can still exercise jurisdiction under 28 U.S.C. § 1331 or 28 U.S.C. § 2072. (Id. at 1-2.) Next, Plaintiff contends that Defendants violated his Fourteenth Amendment due process rights, a claim over which he alleges the Court has jurisdiction. (Id. at 3-4.) Plaintiff also requests counsel, or to be given time to amend his complaint to sufficiently allege the Court's basis for exercising jurisdiction over the case. (Id. at 8.) Finally, Plaintiff argues "that he has already filed in the Court of [C]ommon [P]leas" as Magistrate Judge Blewitt recommended, and that "he has exhausted all other state appeal avenues;" therefore, "[b]esides the U.S. Supreme Court this Hon. Court is the plaintiff's only avenue of redress." (Id. at 5, 8.) The Court will consider each of Plaintiff's objections in turn.

A. Subject Matter Jurisdiction

In his Report and Recommendation, Magistrate Judge Blewitt recommended that Plaintiff's case be dismissed for lack of subject matter jurisdiction. (Doc. No. 6 at 8-13.) Plaintiff alleged in his complaint that the Court has jurisdiction over this case pursuant to 42 U.S.C. § 1983, 28 U.S.C. § 1331, or 28 U.S.C. § 2072.

1. 42 U.S.C. § 1983

Regarding Plaintiff's assertion that the Court has jurisdiction pursuant to 42 U.S.C. § 1983, Magistrate Judge Blewitt explained that this case is not a Section 1983 civil rights action since there are "simply no state actors or agencies who allegedly violated any constitutional rights of Plaintiff." (Doc. No. 6 at 8.) In response, Plaintiff states that he already acknowledged in his complaint that he knew the Defendants were not state officials but "he was not sure what form to use in this matter." (Doc. No. 7 at 1.)

To state a cause of action under Section 1983, a plaintiff must establish that a person acting under color of state law violated a right secured by the Constitution or the law of the United States. West v. Atkins, 487 U.S. 42, 48 (1988). In other words, a plaintiff must establish that the defendants are ...


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