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Magee v. Hammond-Jackson

United States District Court, E.D. Louisiana

May 8, 2018

BOBBY MAGEE
v.
MARGARETE HAMMOND-JACKSON, ET AL.

         SECTION: “B” (1)

          IVAN L. R. LEMELLE JUDGE

          REPORT AND RECOMMENDATION

          JANIS VAN MEERVELD UNITED STATES MAGISTRATE JUDGE

         Pro se plaintiff Bobby Magee filed the above-captioned matter in this Court in which he asserts a claim for legal malpractice against Margaret Hammond-Jackson and the Tulane University Board of Administrators. For the following reasons, it is RECOMMENDED that this lawsuit be DISMISSED for lack of subject-matter jurisdiction and without prejudice to any right the plaintiff may have to file his complaint in state court.

         Background

         On December 15, 2017, this Court granted Mr. Magee's motion for leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a). The Court further ordered the Clerk of Court to withhold summons in order to allow the Court to review plaintiff's complaint to determine whether it satisfies the requirements of the federal in forma pauperis statute.

         In his Complaint, Plaintiff asserts that he was “misrepresented” by attorney Margaret Hammond-Jackson in a claim against Tulane University Board of Administrators, who has also been made a defendant here. Plaintiff alleges that his lawsuit should have been filed in federal court but was filed in state court instead. He makes a vague reference to the “disabilities act of 1974” and a “civil rights violation” and asserts that “all parties clearly knew and should have known [he] was disabled due to his noted heroic Actions in the line of duty apprehending and [sic] armed robber.”

         In response to this Court's Rule to Show Cause, Mr. Magee submitted a memorandum asserting that Ms. “Hammond-Jackson committed neglect of duty violating the American Disabilities Act of 1974.” He attached a copy of his EEOC charge dated May 9, 2012, and referring to alleged discrimination on the basis of race, sex, age in 2012 by his employer Tulane University. He included a letter that appears to be Tulane's position statement to the EEOC. He also attached a docket sheet from an earlier filed case in this district captioned Bobby Magee v. Tulane University Board of Administrators, Civ. A. 13-6598. The docket sheet for Civil Action No. 13-6598 indicates that Magee's earlier case sought damages for alleged discrimination by his former employer, the Tulane University Police Department, on the basis of race and age for denying him a promotion. In that complaint, he also asserted that his employer had refused to accommodate an assignment to light duty work after he was injured on the job, even though a younger, white, female police officer was granted a light duty assignment less than four weeks later. He alleged that another younger, female, white police officer was assigned light duty work a few months later. Ms. Hammond-Jackson represented Mr. Magee in the earlier lawsuit. The docket in that case also shows that on July 29, 2014, Mr. Magee, through his counsel Ms. Hammond-Jackson, moved to dismiss his federal law claims and to remand his state law claims. The court granted his motion, and his federal law claims were dismissed with prejudice.

         Mr. Magee's submission further includes a letter from the Louisiana Attorney Disciplinary Board dated April 6, 2016, acknowledging receipt of his complaint against Ms. Hammond-Jackson. He also attached correspondence from Ms. Hammond-Jackson dated August 31, 2016 reporting that Tulane was interested in settling his case. Mr. Magee also attached a copy of an April 7, 2017, letter requesting the clerk of Civil District Court in New Orleans continue Mr. Magee's case because Ms. Hammond-Jackson had become very ill. A state court filing dated May 26, 2017, shows that Ms. Hammond-Jackson moved to withdraw as counsel of record and represented that Mr. Magee had consented to the withdrawal. Mr. Magee has attached two pages of a Fee Agreement and Authority to Represent. Lastly, his submission includes a doctor's note dated January 18, 2016, stating that Mr. Magee “is no longer fit to be a patrol officer due to knee replacement.”

         Law and Analysis

         On its face, plaintiff's complaint fails to meet the requirements of 28 U.S.C. § 1915(a). There exists no absolute right to proceed in forma pauperis in federal civil matters; instead, it is a privilege extended to those unable to pay filing fees when it is apparent that the claims do not lack merit on their face. See Startii v. United States, 415 F.2d 1115, 1116 (5th Cir.1969); see also Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996) (noting that the revocation of the privilege of proceeding in forma pauperis is not new).

         28 U.S.C. § 1915(e)(2)(B) provides for summary dismissal sua sponte, should the Court determine that a case is frivolous. Section 1915(e)(2)(B) provides in pertinent part as follows:

(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the ...

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