United States District Court, District of Maryland
Ellen L. Hollander, United States District Judge.
Jeffrey Cohen, presently detained at the Chesapeake Detention Facility and awaiting trial in this court on charges of fraud,  has filed suit against the two assistant federal public defenders who represented him at his detention hearing, as well as the Federal Public Defender. He claims that they violated his constitutional right to effective assistance of counsel. ECF 1 at 1-4.Cohen also asserts: “Defendants [sic] negligent actions amount to legal malpractice and a violation of Cohen’s Sixth Amendment right to counsel.” Id. at 1.
This case is subject to initial review pursuant to 28 U.S.C. § § 1915, 1915A, and applicable case precedent. Mindful that plaintiff is a self-represented litigant, the court has construed his complaint liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Even under this less stringent standard, however, the complaint is subject to summary dismissal under the provisions of 28 U.S.C. § 1915(e)(2)(B)(iii).
At the outset, I have construed the suit as a civil rights action under 42 U.S.C. § 1983. Two elements are essential to sustain an action under 42 U.S.C. ' 1983. Specifically, Cohen must demonstrate that: (1) he suffered a deprivation of rights, privileges or immunities secured by the Constitution and laws of the United States; and (2) the act or omission causing the deprivation was committed by a person acting under color of law. See West v. Atkins, 487 U.S. 42, 48 (1988).
An attorney, whether retained, court-appointed, or a public defender, ordinarily does not act under color of state law, which is a jurisdictional prerequisite for any civil action brought under 42 U.S.C. § 1983. See Deas v. Potts, 547 F.2d 800, 800 (4th Cir.1976) (en banc) (private attorney); Hall v. Quillen, 631 F.2d 1154, 1155-1156 & nn. 2-3 (4th Cir.1980) (court-appointed attorney); and Polk County v. Dodson, 454 U.S. 312, 317-324 & nn. 8-16 (1981) (public defender). See also Vermont v. Brillon, 556 U.S. 81, 91 (2009) (“Unlike a prosecutor or the court, assigned counsel ordinarily is not considered a state actor.”). Therefore, Cohen’s claim that attorneys in the Office of the Federal Public Defender did not adequately represent him at a pretrial detention hearing is not cognizable under 42 U.S.C. § 1983.
To the extent that plaintiff seeks to pursue a criminal legal malpractice action in this Court, the case fares no better. In the absence of diversity of citizenship, which is lacking here, this Court does not have jurisdiction as to a civil malpractice claim against these defendants.
In Home Buyers Warranty Corporation v. Hanna, 750 F.3d 427, 432 (4th Cir. 2014), the Fourth Circuit said: “Fundamental to our federal system is the principle that ‘[f]ederal courts are courts of limited jurisdiction.’” (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)); see United States, ex rel. Voyyuru v. Jadhov, 555 F.3d 337, 347 (4th Cir. 2009). Thus, a federal district court may only adjudicate a case if it possesses the “power authorized by Constitution and statute.” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552 (2005) (internal quotation marks omitted). As the Fourth Circuit stated in Strawn v. AT & T Mobility LLC, 530 F.3d 293, 296 (4th Cir. 2008), if a party seeks to proceed in federal court, it “must allege and, when challenged, must demonstrate the federal court’s jurisdiction over the matter.” Indeed, “if Congress has not empowered the federal judiciary to hear a matter, then the case must be dismissed.” Hanna, 750 F.3d at 432; see also Miller v. Brown, 462 F.3d 312, 316 (4th Cir. 2006).
Notably, a federal court has “an independent obligation to determine whether subject-matter jurisdiction exists, even when no party challenges it.” Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010). Moreover, “[a] court is to presume … that a case lies outside its limited jurisdiction unless and until jurisdiction has been shown to be proper.” United States v. Poole, 531 F.3d 263, 274 (4th Cir. 2008) (citing Kokkonen, 511 U.S. at 377). This is because “jurisdiction goes to the very power of the court to act.” Ellenburg v. Spartan Motors Chassis, Inc., 519 F.3d 192, 196 (4th Cir. 2008). Therefore, “[s]ubject matter jurisdiction cannot be forfeited or waived, and can be raised by a party, or by the court sua sponte, at any time prior to final judgment.” In re Kirkland, 600 F.3d 310, 314 (4th Cir. 2010); see McCulloch v. Vélez, 364 F.3d 1, 5 (1st Cir. 2004) (“It is black-letter law that a federal court has an obligation to inquire sua sponte into its own subject matter jurisdiction.”); see also Snead v. Board of Educ. of Prince George’s County, 815 F.Supp.2d 889, 893-94 (D. Md. 2011). And, pursuant to Fed.R.Civ.P. 12(h)(3), “the court must dismiss the action” if it determines that the court lacks subject matter jurisdiction. See also Arbaugh v. Y & H Corp., 546 U.S. 500, 506-07 (2006).
Congress has conferred jurisdiction on the federal courts in several ways. To provide a federal forum for plaintiffs who seek to vindicate federal rights, Congress has conferred on the district courts original jurisdiction over civil actions that arise under the Constitution, laws, or treaties of the United States. Exxon Mobil Corp., 545 U.S. at 552; 28 U.S.C. § 1331. See also U.S. Constitution Art. III, § 2 (“The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made. . . .”) Moreover, 28 U.S.C. § 1367(a) grants district courts “supplemental jurisdiction over all other claims that are so related to claims in the action within [the courts’] original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.”
In addition, “Congress . . . has granted district courts original jurisdiction in civil actions between citizens of different States, between U.S. citizens and foreign citizens, or by foreign states against U.S. citizens, ” so long as the amount in controversy exceeds $75, 000. Exxon Mobil Corp., 545 U.S. at 552; see 28 U.S.C. § 1332. This so-called diversity jurisdiction “requires complete diversity among parties, meaning that the citizenship of every plaintiff must be different from the citizenship of every defendant.” Cent. W. Virginia Energy Co., Inc. v. Mountain State Carbon, LLC, 636 F.3d 101, 103 (4th Cir. 2011); see Strawbridge v. Curtiss, 7 U.S. 267 (1806).
It is readily apparent that there is no diversity jurisdiction here. It follows that plaintiff cannot pursue a civil malpractice claim against these defendants in this Court.
In any event, Cohen’s civil malpractice claim is premature.
The seminal case of Strickland v. Washington, 466 U.S. 668 (1984), sets forth a two-pronged test pertinent to a Sixth Amendment claim of ineffective assistance of counsel. First, the petitioner must show that his attorney’s performance was “below an objective standard of reasonableness, measured by prevailing professional norms.” Strickland, 466 U.S. at 688. This is known as the “performance prong” of the test. Second, the petitioner must show that his attorney’s deficient performance “prejudiced [his] defense.” Id. at 687. To satisfy the prejudice prong, a petitioner must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome” of the proceedings. Id. See also Missouri v. Frye, ___ U.S. ___, 132 S.Ct. 1399 (2012); Laffler v. Cooper, ___ U.S. ___, 132 S.Ct. 1376 (2012); Padilla v. Kentucky, 559 U.S. 356 (2010).
A Pennsylvania case, Bailey v. Tucker, 533 Pa. 237, 621 A.2d 108 (1993), provides guidance as to a claim of legal malpractice arising from a criminal case. Bailey involved three consolidated appeals. The appellants in the consolidated cases asserted causes under various guises, all of which amounted to actions in criminal legal malpractice. 533 Pa. at 245, 621 A.2d at 112. The Supreme Court of Pennsylvania carefully considered the policy implications of civil suits against criminal defense attorneys, rejected the notion of absolute immunity on a claim of ...