United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
DEGUILIO, JUDGE, UNITED STATES DISTRICT COURT
Konrath, a pro se prisoner, filed a complaint
against his former divorce attorney, Christine DeSanctis.
Konrath alleges that Attorney DeSanctis provided
constitutionally ineffective assistance of counsel and
engaged in legal malpractice during his divorce proceedings
from December 2008 through January 2010. (DE 22.) Pursuant to
28 U.S.C. § 1915A, the court must review the merits of a
prisoner complaint and dismiss it if the action is frivolous
or malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief against a defendant who is
immune from such relief. 28 U.S.C. § 1915A(a), (b).
Federal Rule of Civil Procedure 12(b)(6) provides for the
dismissal of a complaint, or any portion of a complaint, for
failure to state a claim upon which relief can be granted.
Fed.R.Civ.P. 12(b)(6). Courts apply the same standard under
§ 1915A as when addressing a motion under Rule 12(b)(6).
Lagerstrom v. Kingston, 463 F.3d 621, 624 (7th Cir.
2006). To survive a motion to dismiss under Rule 12(b)(6), a
complaint must state a claim for relief that is plausible on
its face. Bissessur v. Indiana Univ. Bd. of Trs.,
581 F.3d 599, 602-03 (7th Cir. 2009). “A document filed
pro se is to be liberally construed, and a pro
se complaint, however inartfully pleaded, must be held
to less stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94
complaint, Konrath states that he hired Indiana Attorney
DeSanctis in December 2008 to represent him in his divorce,
but fired her in December 2010. Konrath claims that she provided
him with bad advice during those two years. Konrath alleges
both a federal ineffective assistance of counsel claim under
Section 1983 as well as a state law claim for legal
malpractice against Attorney DeSanctis.
start, there is no federal claim here, as Mr. Konrath's
civil lawyer did not act under color of law. Polk County
v. Dodson, 454 U.S. 312, 317-18 (1981). Moreover, legal
malpractice does not amount to a constitutional violation.
Hutcherson v. Smith, 908 F.2d 243, 245 (7th Cir.
1990). Even if Konrath somehow could allege a proper federal
claim, it would be untimely. Though the statute of
limitations is an affirmative defense, “a plaintiff can
plead himself out of court. If he alleges facts that show he
isn't entitled to a judgment, he's out of
luck.” Early v. Bankers Life and Cas. Co., 959
F.2d 75, 79 (7th Cir. 1992) (citations omitted). Such is the
case here. “Indiana's two-year statute of
limitations . . . is applicable to all causes of action
brought in Indiana under 42 U.S.C. § 1983.”
Snodderly v. R.U.F.F. Drug Enforcement Task Force,
239 F.3d 892, 894 (7th Cir. 2001). Because it has been more
than six years since this claim arose, it would be untimely.
as to the state law legal malpractice claim, Konrath asserts
that this court has subject matter jurisdiction over this
claim based on diversity of citizenship. (DE 22 at 2, 3.)
Like the federal claim, though, this state law claim has a
statute of limitations problem, too. Konrath's state law
claim for legal malpractice is also subject to a two-year
statute of limitations. Biomet, Inc. v. Barnes
& Thornburg, 791 N.E.2d 760, 765 (Ind.Ct.App. 2003).
In Indiana, “[u]nder the continuous representation
doctrine, the statute of limitations does not commence until
the end of an attorney's representation of a client in
the same matter in which the alleged malpractice
occurred.” Id. Here, the divorce proceedings
concluded far more than two years ago, as did Attorney
DeSanctis' representation of Konrath. (DE 22 at 1, 2.)
Konrath signed and submitted his complaint on July 29, 2016.
(DE 1 at 5.) Because Konrath filed his complaint against
Attorney DeSanctis more than six years after the claim arose,
it is barred by the applicable two-year statute of
it is usually necessary to permit a plaintiff the opportunity
to file an amended complaint when a case is dismissed sua
sponte, see Luevano v. Wal-Mart, 722 F.3d 1014
(7th Cir. 2013), that is unnecessary where the amendment
would be futile. Hukic v. Aurora Loan Servs., 588
F.3d 420, 432 (7th Cir. 2009) (“[C]ourts have broad
discretion to deny leave to amend where . . . the amendment
would be futile.”). Such is the case here. No amendment
could make Attorney DeSanctis a state actor. Nor could any
amendment make these claims timely.
these reasons, this case is DISMISSED pursuant to 28 U.S.C.
§ 1915A because it fails to state a claim for which
relief can be granted.
Although he writes that he fired
Attorney DeSanctis in December 2009, it appears as though
this is a typographical error and Mr. Konrath intended to
write that he fired her in December 2010. (See DE 22 at 2.)
This is a distinction without a ...