United States District Court, N.D. Indiana, South Bend Division
JAVON L. CROCKETT-BERRY, Plaintiff,
LINDA WAGONER, et al., Defendants.
OPINION AND ORDER
L. Crockett-Berry, a prisoner without a lawyer, filed a
complaint stemming from a fee dispute between himself an
Attorney Linda Wagoner. Pursuant to 28 U.S.C. § 1915A,
the court must review 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 may be granted. 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). In
determining whether the complaint states a claim, the court
must bear in mind that “[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
has sued his former retained counsel, Linda Wagoner, and her
law firm, in connection with her representation of him from
2008 through 2013. He alleges that she provided ineffective
assistance of counsel and retaliated against him when he
asked for a return of the paid attorney fees by recruiting
another prisoner to kill the plaintiff. Crockett-Berry sued
Attorney Wagoner in state court for the return of money he
paid to her pursuant to an attorney fee agreement. Attorney
James Hanson represented Attorney Wagoner in those
proceedings, and Crockett-Berry has also sued Attorney Hanson
and his law firm in connection with his representation of
Attorney Wagoner. Additionally, Crockett-Berry has sued
Attorney Robert W. Hammerle, a friend of Wagoner's who
assisted her with her dispute with Crockett-Berry but claims
he did not actually represent Wagoner. Crockett-Berry
believes that his information was inappropriately shared
between Attorney Wagoner and Attorneys Hanson and Hammerle.
In this suit, brought pursuant to 28 U.S.C § 1983,
Crockett-Berry alleges these defendants violated his rights
under the First, Fifth, Sixth, Eighth and Fourteenth
Amendments to the U.S. Constitution.
order to state a claim under § 1983 a plaintiff must
allege: (1) that defendants deprived him of a federal
constitutional right; and (2) that the defendants acted under
color of state law.” Savory v. Lyons, 469 F.3d
667, 670 (7th Cir. 2006). Contrary to Crockett-Berry's
belief, neither the attorneys he has sued nor their law firms
violated his federal constitutional rights. The Constitution
only protects against acts of defendants acting under color
of state law. Id. Attorney Wagoner was not acting
under color of law while representing Crockett-Berry and,
similarly, neither Attorney Hanson nor Attorney Hammerle were
acting under color of law while assisting Wagoner. See
Polk County v. Dodson, 454 U.S. 312 (1981) (A criminal
defense attorney, even an appointed public defender, does not
act under color of state law.). Consequently, the amended
complaint presents no federal claim.
the defendants could be considered state actors, it appears
that it is too late for Crockett-Berry to assert these
claims. Indiana's two-year limitations period applies to
his Section 1983 claims. Behavioral Inst. of Ind., LLC v.
Hobart City of Common Council, 406 F.3d 926, 929 (7th
Cir. 2005). He filed this lawsuit in August of 2018, more
than 5 years after he requested that Wagoner return his fee.
it is usually necessary “to give pro se litigants one
opportunity to amend after dismissing a complaint[, ]
that's unnecessary where, as here, it is certain from the
face of the complaint that any amendment would be futile or
otherwise unwarranted.” Carpenter v. PNC Bank, Nat.
Ass' n, No. 633 Fed.Appx. 346, 348 (7th Cir. Feb. 3,
2016) (quotation marks omitted). See Luevano v.
Wal-Mart, 722 F.3d 1014 (7th Cir. 2013) and 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.”).
these reasons, this case is DISMISSED pursuant to 28 U.S.C.
§ 1915A because it does not state a claim.
 Crockett-Berry brought similar claims
in Crockett-Berry v. Wagoner, 3:18cv170 (filed on
March 7, 2018). That case was dismissed when Crockett-Berry
did not file an amended complaint by the deadline. He later
sought to reopen the case, but his request was denied because
reopening the case would have been futile. His proposed
amended complaint did not state a ...