United States District Court, S.D. Indiana, Terre Haute Division
KEENAN R. HAUKE, Plaintiff,
LARRY MACKEY, THE LAW FIRM OF BARNES and THORNBURG, Defendants.
ENTRY GRANTING REQUEST TO PROCEED IN FORMA PAUPERIS,
DISMISSING COMPLAINT, AND DIRECTING FURTHER
WILLIAM T. LAWRENCE, JUDGE
plaintiff's request to proceed in forma
pauperis, Dkt. No. 1, is granted.
the foregoing ruling, “[a]ll [28 U.S.C.] § 1915
has ever done is excuse pre- payment of the docket
fees; a litigant remains liable for them, and for other
costs, although poverty may make collection
impossible.” Abdul-Wadood v. Nathan, 91 F.3d
1023, 1025 (7th Cir. 1996). The assessment of even an initial
partial filing fee is waived because the plaintiff has no
assets and no means by which to pay a partial filing fee. 28
U.S.C. § 1915(b)(4). Accordingly, no initial partial
filing fee is due at this time.
Keenan Hauke has filed a “motion to file a civil
suit.” This filing has been treated as a complaint and
a civil case has been initiated. Mr. Hauke brings this action
against his former lawyer Larry Mackey and Mr. Mackey's
law firm. Mr. Hauke contends that, in the course of criminal
proceedings against him, Mr. Mackey provided him inadequate
representation because he was pursuing an affair with his
wife. He brings this case in federal court because he
believes, based on the decision of the Indiana Supreme Court
not to pursue disciplinary action against Mr. Mackey, that he
cannot get a fair hearing in state court. He also states that
“there is a constitutional issue” because Mr.
Mackey violated his Sixth Amendment right to effective
assistance of counsel.
he is proceeding in forma pauperis, Mr. Hauke's
complaint is now subject to the screening requirement of 28
U.S.C. § 1915(e)(2)(B). This statute provides that a
court shall dismiss a case at any time if the court
determines that the action (i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted;
or (iii) seeks monetary relief against a defendant who is
immune from such relief.
on this screening standard, Mr. Hauke's complaint must be
dismissed. First, because Mr. Hauke suggests
that his claims are brought under the Sixth Amendment, they
are understood to be brought pursuant to the theory
recognized in Bivens v. Six Unknown Named Agents,
403 U.S. 388 (1971), which permits a cause of action against
federal actors that are alleged to have violated a
person's constitutional rights. But a privately-retained
lawyer is not a federal actor subject to suit under
Bivens. Cf. Polk County v. Dodson, 454 U.S.
312, 325 (1981) (holding that “a public defender does
not act under color of state law [for purposes of liability
under § 1983] when performing a lawyer's traditional
functions as counsel to a defendant in a criminal
proceeding”). Because Mr. Mackey is not a federal
actor, Mr. Hauke cannot bring a Bivens claim against
him or his law firm and any Sixth Amendment claim is
Mr. Hauke's claim is understood to be a legal malpractice
claim against Mr. Mackey, he still could not bring that claim
in this Court. The Supreme Court has described federal
jurisdiction as follows:
The basic statutory grants of federal-court subject-matter
jurisdiction are contained in 28 U.S.C. §§ 1331 and
1332. Section 1331 provides for “[f]ederal-
question” jurisdiction, § 1332 for
“[d]iversity of citizenship” jurisdiction. A
plaintiff properly invokes § 1331 jurisdiction when she
pleads a colorable claim “arising under” the
Constitution or laws of the United States. See Bell v.
Hood, 327 U.S. 678, 681-685, 66 S.Ct. 773, 90 L.Ed. 939
(1946). She invokes § 1332 jurisdiction when she
presents a claim between parties of diverse citizenship that
exceeds the required jurisdictional amount, currently $75,
000. See § 1332(a).
Arbaugh v. Y&H Corp., 546 U.S. 500, 513 (2006).
(internal footnote omitted). “[T]he party invoking
federal jurisdiction bears the burden of demonstrating its
existence.” See Hart v. FedEx Ground Pkg.
Sys. Inc., 457 F.3d 675, 679 (7th Cir. 2006).
Court has already determined that Mr. Hauke has failed to
state a claim under the Sixth Amendment and dismissed that
claim. While Mr. Hauke's allegations might also be
understood to allege state law claims, such as legal
malpractice, there is no other allegation of conduct which
could support the existence of federal question jurisdiction.
See Williams v. Aztar Ind. Gaming Corp., 351 F.3d
294, 298 (7th Cir. 2003) (explaining federal courts may
exercise federal-question jurisdiction when a plaintiff's
right to relief is created by or depends on a federal statute
or constitutional provision). Similarly, there is no
allegation of diversity of citizenship. See Denlinger v.
Brennan, 87 F.3d 214, 217 (7th Cir. 1996) (holding that
failure to include allegations of citizenship requires
dismissal of complaint based on diversity jurisdiction).
Further, because the federal claim fails to state a claim
upon which relief may be granted, Mr. Mackey may not rely on
the Court's supplemental jurisdiction to entertain his
state-law malpractice claim. See 42 U.S.C. §
short, the only federal claim the Court can identify has been
dismissed and without a pending federal claim, the Court does
not have jurisdiction over any related state law claim.
Accordingly, Mr. Hauke's complaint must be
dismissed. Mr. Hauke shall have
through September 14, 2018, in which to show
cause why Judgment consistent with this Entry should not
issue. See Luevano v. Wal-Mart Stores, Inc., 722
F.3d 1014, 1022 (7th Cir. 2013) (“Without at least an
opportunity to amend or to respond to an order to show cause,
an IFP applicant's case could be tossed out of court
without giving the applicant any timely notice or opportunity
to be heard to clarify, contest, or simply request leave to