Opinion
SA-23-CA-01396-XR
02-28-2024
JOHN BERNARD WILLIAMS III, Plaintiff v. JOHN 'BUD' RITENOUR JR., ATTORNEY GENERAL, KEN PAXTON, CONSUMER PROTECTION DIVISION, LAW ENFORCEMENT DIVISION, AND CIVIL RIGHTS DIVISION, HATE CRIMES; Defendant
ORDER
XAVIER RODRIGUEZ UNITED STATES DISTRICT JUDGE
On this date, the Court considered its jurisdiction over this case. After careful review, Plaintiff is directed to show cause why his complaint should not be dismissed for lack of subject matter jurisdiction by no later than March 15, 2024.
BACKGROUND
Proceeding pro se, Plaintiff John Bernard Williams III, a Texas state inmate, filed this action against his former court-appointed appellate attorney, John Ritenour, Jr. (“Ritenour”), and Attorney General Kenneth Paxton, “Consumer Protection Division, Law Enforcement Division, and Civil Rights Division, Hate Crimes.” ECF No. 1. Although the allegations in the complaint are unclear, Plaintiff generally asserts claims stemming from Ritenour's alleged legal malpractice during his criminal appeal.
In December 2022, after pleading guilty to a charge of sexual assault, Williams was sentenced to ten years in the Texas Department of Criminal Justice. See ECF No. 4 at 2. In May 2023, Ritenour was appointed as Plaintiff's attorney on appeal. Id. at 1. He soon discovered that Plaintiff had already filed a pro se notice of appeal and a motion for a new trial in December 2022, followed by a second pro se appeal filed in May 2023. Id. at 3-4.
In the interest of clarity, the Court draws on Ritenour's answer (ECF No. 4) and the procedural history of the underlying criminal proceedings to supplement this background. See Krystal One Acquisitions, LLC v. Bank of Am., N.A., 805 Fed.Appx. 283, 287 (5th Cir. 2020) (permitting district court to take judicial notice of filings from prior lawsuits because such documents were public records); Freeman v. United States, 556 F.3d 326, 334 (5th Cir. 2009) (noting that a court can evaluate its subject matter jurisdiction based on “(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.”).
Plaintiff's first appeal was dismissed in March 2023. See Williams v. State, No. 04-22-00695-CR, 2023 WL 2297415, at *1-2 (Tex. App.-San Antonio, Mar. 1, 2023). The panel concluded that Williams had waived his right to appeal as part of his plea bargain. Id. After one of the judges on that panel, Chief Justice Rebeca C. Martinez voluntarily recused herself from the appeal, the remaining members of the panel, on their own motion, extended the time for reconsideration of the dismissal order based on the recusal. See ECF No. 4-1 at 13. Williams moved to reinstate his appeal, arguing that an order issued by a disqualified judge is void. Id. On May 2, 2023, the day before Ritenour's appointment, the panel denied Williams's request, construed as a motion for rehearing, noting that Chief Justice Martinez's voluntary recusal did not render her constitutionally disqualified. Id.
With both the initial order dismissing the appeal, and the subsequent order denying the appeal on rehearing, Ritenour turned his attention to filing a Petition for Discretionary Review (“PDR”) with the Texas Court of Criminal Appeals to challenge the actions of the Court of Appeals. ECF No. 4 at 4. In June 14, 2023, Ritenour requested an extension of the deadline for filing a PDR with the Court of Criminal Appeals, noting that Plaintiff had represented himself with a vigorous and inventive pro se motions practice in both trial and appellate courts for nearly three years. Id. at 6. Ritenour thus needed more time to review those filings to see if there was anything that could be raised on PDR. Id. The PDR deadline was extended to July 3, 2023. Id.
In trial court, Williams proceeded pro se after his retained lawyer was permitted to withdraw on September 30, 2020.
On June 21, 2023, not having identified any issues to appeal, Ritenour called Plaintiff and advised that, if Plaintiff wished to continue with the PDR pro se, he should provide something to both Ritenour and the Court of Criminal Appeals, and Ritenour would withdraw from the case. See ECF No. 1 at 1; ECF No. 4 at 6. Plaintiff never notified Ritenour that he wished to proceed pro se, but nonetheless continued to file unsuccessful pro se motions with the Court of Criminal Appeals. Id. at 6.Plaintiff then began sending Ritenour handwritten documents purporting to be filings in civil actions pursued under the Trial and Appellate Court's criminal matters cause numbers, but failed to file a civil action against Ritenour in state court. Id. at 6-7.
See also Williams v. State, No. 04-22-00695-CR, https://perma.cc/SK3W-LL68 (indicating that Plaintiff filed five motions filed in June and July 2023, one motion in November 2023, and two motions in January 2024),; In re Williams, No. PD-0360-23, https://perma.cc/2BV9-J84B (showing a pro se filing in October 2023).
Instead, Plaintiff filed this action against Ritenour and the Attorney General in federal court in November 2023, seeking monetary damages of $350,000 and professional sanctions against Ritenour, including disbarment. ECF No. 1 at 3, 8. The nature of the relief Plaintiff seeks from the Attorney General, who is being sued in his official capacity, is unclear. See ECF No. 1 at 1 (“Plaintiff files this lawsuit not against the state, but against a public officer of the state in his licensed official capacity.”).
Ritenour filed his answer to Plaintiff's complaint on November 27, 2023. ECF No. 4. The Attorney General filed a motion to dismiss Plaintiff's complaint on February 16, 2024. See ECF No. 11. The Attorney General asserts that the Court lacks subject matter jurisdiction over Plaintiff's claims because they are barred by the doctrine of sovereign immunity. Id. at 3-5. He further argues that Plaintiff lacks standing to sue the Attorney General because the complaint fails to allege that Plaintiff's injuries are traceable to or redressable by the Attorney General. Id. at 5-6. Indeed, the complaint does not appear to contain any specific factual allegations as to the Attorney General, let alone allegations suggesting that he was involved in a conspiracy to violate Plaintiff's civil rights.
Based on the allegations in the complaint, the Court is not satisfied that it has subject matter jurisdiction over this case. A court has a duty to examine its subject matter jurisdiction and must do so sua sponte when necessary. Howery v. Allstate Ins. Co., 243 F.3d 912, 919 (5th Cir. 2001).
DISCUSSION
I. Legal Standard
Subject matter jurisdiction is a federal court's statutory or constitutional power to adjudicate a case. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89 (1998). Dismissal is proper “when the court lacks the statutory or constitutional power to adjudicate the case.” Home Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). At the pleading stage, “the plaintiffs' burden is to allege a plausible set of facts establishing jurisdiction.” Physician Hosps. of Am. v. Sebelius, 691 F.3d 649, 652 (5th Cir. 2012).
Standing “is a component of subject matter jurisdiction.” HSBC Bank USA, N.A. as Tr. for Merrill Lynch Mortg. Loan v. Crum, 907 F.3d 199, 202 (5th Cir. 2018). It identifies “those disputes which are appropriately resolved through the judicial process.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (quotation marks and citation omitted). To establish standing, a plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant[s], and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016).
I. Analysis
Plaintiff asserts that the Court has federal question jurisdiction under 28 U.S.C. § 1331. See ECF No. 1 at 5. His complaint contains references to the Sherman Act, 15 U.S.C. §§ 1 et seq., and a number of federal criminal statutes. See ECF No. 1 at 5; id. at 10 (citing, e.g., 18 U.S.C. §§ 208, 241, 242, 246, 371, 401, 1001, 1505, 1622, 2071, 2075, 2701, 2713). With respect to the criminal provisions, Plaintiff fails to identify any private right of action that would allow him to bring suit to enforce the federal criminal statutes identified in his complaint. As for the Sherman Act, Plaintiff has not suffered the kind of competitive harm required to establish antitrust standing.
The Sherman Act makes illegal “[e]very contract . . . or conspiracy, in restraint of trade or commerce” and any monopolization “or attempt to monopolize . . . any part of . . . trade or commerce.” 15 U.S.C. §§ 1, 2. Any person who is “injured in his business or property by reason of anything forbidden in the antitrust laws,” including the Sherman Act, may bring suit to enforce those laws. 15 U.S.C. § 15(a). Still, a plaintiff must have antitrust standing to bring such claims, which requires (1) injury-in-fact, (2) antitrust injury, and (3) proper plaintiff status. Suarez v. iHeartMedia + Entm't, Inc., No. SA-18-CV-1237-XR, 2019 WL 286186, at *2 (W.D. Tex. Jan. 22, 2019) (citing Doctor's Hosp. of Jefferson, Inc. v. Se. Med. All., Inc., 123 F.3d 301, 305 (5th Cir. 1997)). Antitrust injury is “injury of the type the antitrust laws were intended to prevent and that flows from that which makes [the] defendants' acts unlawful.” Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489 (1977). “The injury should reflect the anticompetitive effect either of the violation or of anticompetitive acts made possible by the violation.” Id. Nothing in Plaintiff's complaint suggests that he has suffered any anticompetitive effects on his “business or property” based on antitrust violations by either Ritenour or the Attorney General. Simply put, Plaintiff's claims have nothing to do with the Sherman Act.
Plaintiff also seeks to invoke the Court's jurisdiction under 28 U.S.C. § 1343, which grants federal district courts original jurisdiction in certain cases where plaintiff has been deprived of “any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States.” 28 U.S.C. § 1343(3). It is “a jurisdictional statute and does not create any substantive rights.” Jewell v. City of Covington, 425 F.2d 459, 460 (5th Cir. 1970). Rather, section 1343 simply provides jurisdiction to federal courts for litigation arising under the Constitution or federal statutes providing for equal rights. Howard v. State Dept. of Highways of Colo., 478 F.2d 581, 585 (10th Cir. 1973).
The Court construes the complaint's reference to 28 U.S.C. § 1443 as invoking 28 U.S.C. § 1343. See ECF No. 1 at 1, 6. As a removal statute, Section 1443 permits a defendant in a civil rights suit filed in state court to remove the case to federal court; it does not provide a basis for original jurisdiction. See House v. Dorsey, 408 F.2d 1008, 1009 (4th Cir. 1968) (“This suit clearly does not come within any statute allowing removal, since House is the plaintiff, and removal is allowed only to defendants.”)
Plaintiff appears to allege that Ritenour violated the First Amendment's Petition Clause, which “protects ‘the right of the people . . . to petition the Government for a redress of grievances.'” Borough of Duryea v. Guarnieri, 564 U.S. 379, 382, (2011) (quoting U.S. CONST. AMEND. I.). SUPREME COURT PRECEDENT CONFIRMS THAT THE PETITION CLAUSE PROTECTS THE RIGHT OF INDIVIDUALS TO APPEAL TO COURTS AND OTHER FORUMS ESTABLISHED BY THE GOVERNMENT FOR RESOLUTION OF LEGAL DISPUTES. “[T]HE RIGHT OF ACCESS TO COURTS FOR REDRESS OF WRONGS IS AN ASPECT OF THE FIRST AMENDMENT RIGHT TO PETITION THE GOVERNMENT.” Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 896-97 (1984). The complaint, however, fails to identify a federal cause of action that could support a claim against Ritenour for the alleged violation of Plaintiff's First Amendment rights.
To the extent Plaintiff seeks to assert a claim under 42 U.S.C. § 1983, it fails because Ritenour is not a state actor. To pursue a claim under section 1983, a plaintiff must allege (1) that he was deprived of a right secured by the Constitution or laws of the United States; and (2) that the deprivation was caused by one acting under color of state or federal law. West v. Atkins, 487 U.S. 42, 48 (1988). It is well established that an attorney does not act under color of state law in representing a defendant in a criminal case. Hill v. Cox, No. 3:11-CV-1209-O BK, 2011 WL 5101571, at *1-2 (N.D. Tex. Sept. 9, 2011), report and recommendation adopted, No. 3:11-CV-1209-O, 2011 WL 5101506 (N.D. Tex. Oct. 25, 2011) (citing See Polk County v. Dodson, 454 U.S. 312, 324-25 (1981) (public defender does not act under color of state law when performing lawyer's traditional functions in representing defendant in criminal case) and Mills v. Criminal Dist. Court No. 3, 837 F.2d 677, 679 (5th Cir. 1988) (court appointed attorneys are not official state actors). Thus, Plaintiff's claims against Ritenour for acts and omissions during his criminal appeal cannot support a cause of action under Section 1983.
Although Plaintiff cites a number of federal statutes that create causes of action against private actors for civil rights violations, those statutes require a showing of racial discrimination or discriminatory animus. See ECF No. 1 at 6 (citing 42 U.S.C. § 1981 (prohibiting racial discrimination in the making and enforcement of public and private contracts)); id. at 9 (citing 42 U.S.C. § 1982 (prohibiting racial discrimination as to citizen's right to inherit, purchase, lease, sell, hold, and convey real and personal property)); id. at 1 (citing 42 U.S.C. § 1985 (prohibiting conspiracies to deprive “any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws”)).
The Supreme Court has cautioned that Section 1985 does not transform all state law torts into federal causes of action:
That the statute was meant to reach private action does not, however, mean that it was intended to apply to all tortious, conspiratorial interferences with the rights of others. For, though the supporters of the legislation insisted on coverage of private conspiracies, they were equally emphatic that they did not believe . . . “that Congress has a right to punish an assault and battery when committed by two or more persons within a State.”Griffin v. Breckenridge, 403 U.S. 88, 101-02 (1971). To prevent § 1985 from becoming a font of federal tort law, the Griffin court strictly limited its application based on the defendants' intent:
The language requiring intent to deprive of equal protection, or equal privileges or immunities, means that there must be some racial or perhaps otherwise class-based invidiously discriminatory animus behind the conspirators' action. The conspiracy, in other words, must aim at a deprivation of the equal enjoyment of rights secured by the law to all.Id. at 102; see also Jackson v. Biedenharn, 429 Fed.Appx. 369, 372 (5th Cir. 2011) (“Section 1985(3) prohibits conspiracies to deprive a person of equal protection of the laws or of equal privileges and immunities under the laws on the basis of race.”).
Plaintiff does not allege that Ritenour's representation was racially discriminatory or otherwise animated by a discriminatory conspiracy to violate his First Amendment rights. Without allegations of such an injury, Plaintiff cannot establish standing to sue under any of the civil rights statutes mentioned in his complaint. At bottom, the pleadings confirm that Plaintiff seeks to sue his defense counsel for legal malpractice, not for a constitutional violation.
Because the complaint does not appear to present a sufficient basis for federal subject matter jurisdiction,the Court cannot exercise supplemental jurisdiction over Plaintiff's numerous state-law claims for breach of contract, breach of fiduciary duty, “conspiracy,” negligence, negligence per se, legal malpractice, and violations of the Texas Deceptive Trade Practices Act. See 28 U.S.C. § 1367(a) (“in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.”).
Having failed to establish federal question jurisdiction, Plaintiff cannot rely on diversity of jurisdiction as a basis for subject matter jurisdiction in this case. The diversity statute requires “complete diversity” of citizenship. See Corfield v. Dallas Glen Hills LP, 355 F.3d 853, 857 (5th Cir. 2003) (citing Whalen v. Carter, 954 F.2d 1087, 1094 (5th Cir. 1992) (district court cannot exercise diversity jurisdiction if the plaintiff shares the same state of citizenship as any one of the defendants)). The complaint and answer suggest that Plaintiff and Ritenour are both citizens of Texas. See ECF No. 1 at 1; ECF No. 4 at .
CONCLUSION
For the foregoing reasons, Plaintiff is directed to show cause why his claims against both Defendant Ritenour and Defendant Paxton should not be dismissed for lack of subject matter jurisdiction by no later than Friday, March 15, 2024, or seek an extension of time to do so.
In the interest of administrative efficiency, the Court extends sua sponte Plaintiff's March 1, 2024 deadline to respond to the Attorney General's motion to dismiss (ECF No. 11).
Failure to respond to this Order will result in dismissal of this action under Rule 41(b) for failure to prosecute and failure to comply with a Court order.
In light of the deficiency of his pleadings, it is further ORDERED that Plaintiff's “Motion to Compel Response to Rule 26, F.R.C.P., or [in] the alternative, Motion for Summary Judgment” (ECF No. 10) is DENIED.
The Clerk is DIRECTED to mail a copy of this Order to John Bernard Williams III at 7918 Hatchmere Ct., Converse, TX 78109.
It is so ORDERED.
SIGNED.