                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA



RAYMOND L. SANDERS,

        Plaintiff,
               v.                                          Civil Action No. 11-540 (JEB)
CHARLES P. MURDTER,

        Defendant.


                                  MEMORANDUM OPINION

        Pro se Plaintiff Raymond L. Sanders brings this action against Defendant Charles P.

Murdter, an attorney who was appointed to represent Plaintiff in a criminal case in the District of

Columbia Superior Court. According to the Complaint, Defendant “violat[ed] plaintiff’s

constitutional rights to legal representation and due process of law.” Compl. at 1. Defendant has

now moved to dismiss on a number of grounds, including lack of federal subject-matter

jurisdiction. As the Court agrees that Plaintiff has not sufficiently established such jurisdiction,

it will grant the Motion and dismiss the case.

   I.      Background

        The Complaint, which must be presumed true at this stage, alleges that on September 24,

2009, Defendant was appointed to represent Plaintiff in his criminal case in Superior Court,

wherein he was charged with (1) second-degree burglary, (2) destroying property, and (3)

attempted second-degree burglary. Id. at 2. Plaintiff alleges that he made a number of requests

regarding the pretrial investigation, but Defendant only performed one of the tasks. Id. at 2, 4.

Defendant also failed to inform Plaintiff of the progress he was making in his investigation, and,

despite Plaintiff’s repeated attempts to contact Defendant, Murdter did not communicate with

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Plaintiff after their initial meeting until “two days prior to trial.” Id. at 3-4. During the trial, the

government presented a number of “surprise witnesses,” and Defendant failed to put the

government’s evidence through an “adversarial test.” Id. at 6-15.

          Plaintiff was ultimately convicted of “second degree burglary, malicious destruction of

property (felony)[,] and attempted second degree theft,” and he was sentenced on March 24,

2010, to a term of two years in prison. See Mot., Exh. 1 (Electronic Docket Sheet in United

States v. Raymond L. Sanders, Case No. 2008-CF2-26090) at 2. Plaintiff appealed his

convictions to the District of Columbia Court of Appeals, where he contended that the “evidence

at trial was insufficient to support [his convictions]” and that “he was denied the effective

assistance of counsel ….” See Mot., Exh. 2 (Memorandum Opinion and Judgment in Raymond

L. Sanders v. United States, No. 10-CF-480) at 1. The Court of Appeals rejected Plaintiff’s

claim of ineffective assistance of counsel and affirmed his convictions. Id. at 2. After this

unsuccessful appeal, Plaintiff filed a § 23-110 motion to vacate his conviction on July 18, 2011.

See Docket Sheet at 1. During the pendency of that proceeding, Plaintiff brought the instant civil

action here asserting violations of his Fifth and Sixth Amendment rights. Compl. at 1, 18.

Plaintiff then filed a motion to withdraw his § 23-110 motion in Superior Court so that this Court

would let this civil case proceed, and the Superior Court granted that request on March 22, 2012.

See Docket Sheet at 1. Defendant has now submitted the current Motion to Dismiss, which

argues lack of subject-matter jurisdiction.

    II.      Legal Standard

          To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(1), Plaintiff bears the burden

of proving that the Court has subject-matter jurisdiction to hear his claims. See Lujan v.

Defenders of Wildlife, 504 U.S. 555, 561 (1992); U.S. Ecology, Inc. v. U.S. Dep’t of Interior,



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231 F.3d 20, 24 (D.C. Cir. 2000). A court has an “affirmative obligation to ensure that it is

acting within the scope of its jurisdictional authority.” Grand Lodge of Fraternal Order of Police

v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001). For this reason, “‘the [p]laintiff’s factual

allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion’ than in

resolving a 12(b)(6) motion for failure to state a claim.” Id. at 13-14 (quoting 5A Charles A.

Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed. 1987) (alteration in

original)). Additionally, unlike with a motion to dismiss under Rule 12(b)(6), the Court “may

consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack

of jurisdiction.” Jerome Stevens Pharmaceuticals, Inc. v. F.D.A., 402 F.3d 1249, 1253 (D.C. Cir.

2005); see also Venetian Casino Resort, L.L.C. v. E.E.O.C., 409 F.3d 359, 366 (D.C. Cir. 2005)

(“given the present posture of this case — a dismissal under Rule 12(b)(1) on ripeness grounds

— the court may consider materials outside the pleadings”); Herbert v. Nat’l Academy of

Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992).

    III.      Analysis

           While pointing out numerous defects with the causes of action in Plaintiff’s Complaint,

Defendant principally argues that the Court lacks subject-matter jurisdiction over the entire case.

“Subject matter jurisdiction ‘is, of necessity, the first issue for an Article III court,’ for ‘[t]he

federal courts are courts of limited jurisdiction, and they lack the power to presume the existence

of jurisdiction in order to dispose of a case on any other grounds.’” Loughlin v. United States,

393 F.3d 155, 170 (D.C. Cir. 2004) (quoting Tuck v. Pan Am. Health Org., 668 F.2d 546, 549

(D.C. Cir. 1981)); see also Am. Farm Bureau v. EPA, 121 F. Supp. 2d 84, 90 (D.D.C. 2000)

(“The court cannot address any issue if it lacks subject matter jurisdiction . . . .”). The Court,




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therefore, will address this ground for dismissal first. Because it concludes that no subject-

matter jurisdiction exists here, it will grant Defendant’s Motion.

       The sole basis upon which Plaintiff explicitly grounds his assertion of subject-matter

jurisdiction is a violation of his Fifth and Sixth Amendment rights under the Constitution. See

Compl. at 1 (citing 28 U.S.C. § 1331). (Neither diversity jurisdiction nor the citizenship of the

parties is ever mentioned.) Although Plaintiff does not cite 42 U.S.C. § 1983 in his Complaint,

the Court presumes this is the cause of action he intends. This statute reads: “Every person who,

under color of [state law] … [subjects] … any citizen of the United States … to the deprivation

of any rights … shall be liable to the party injured ….” 42 U.S.C. § 1983. This statute thus

permits a person who has been deprived of his constitutional rights to seek redress, but only if

the person who caused the deprivation was acting under color of state law.

       The question, therefore, is whether a court-appointed lawyer is acting under color of state

law when representing a defendant in a state criminal proceeding. The Supreme Court has

answered this question in the negative. In Polk County v. Dodson, 454 U.S. 312 (1981), the

Court held that a public defender is not subject to liability when she is “performing a lawyer’s

traditional functions as counsel” because the attorney “does not act under color of state law.” Id.

at 324-25. The Court found that when a public defender makes “hiring and firing decisions on

behalf of the State” or is “performing certain administrative and possibly investigative functions”

related to the State, then the public defender would be acting under the color of state law. Id. at

324-25. If, however, the public defender is “exercising her independent professional judgment in

a criminal proceeding,” then she is performing her traditional functions as counsel and is not

liable under § 1983. Id. at 324.




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        In the present case, Defendant is not even a public defender employed by the state;

instead, he is a private lawyer appointed under the Criminal Justice Act. Therefore, Murdter is

one step removed from the public defender in Polk County, who was employed by the state and

still found not to be liable under § 1983. As Defendant was also exercising his “independent

professional judgment in the criminal proceeding,” he, too, cannot be sued under this statute.

Section 1983, therefore, cannot be the basis to establish jurisdiction here.

        It is unclear whether Plaintiff is bringing a common-law claim for legal malpractice in

addition to his constitutional claims. See Compl. at 1, 18. To the extent he is, the Court declines

to exercise supplemental jurisdiction under 28 U.S.C. § 1367 over such a claim. Federal district

courts are given supplemental (or “pendent”) jurisdiction over state claims that “form part of the

same case or controversy” as federal claims over which they have original jurisdiction. 28

U.S.C. § 1367(a). By the same token, they “may decline to exercise supplemental jurisdiction

over [such] claim[s] . . . if . . . the district court has dismissed all claims over which it has

original jurisdiction[.]” § 1367(c)(3). The decision of whether to exercise supplemental

jurisdiction where a court has dismissed all federal claims is left to the court’s discretion as

“pendent jurisdiction is a doctrine of discretion, not of plaintiff’s right.” United Mine Workers

of America v. Gibbs, 383 U.S. 715, 726 (1966), quoted in Shekoyan v. Sibley Int’l, 409 F.3d

414, 423 (D.C. Cir. 2005). When deciding whether to exercise supplemental jurisdiction over

state claims, federal courts should consider “judicial economy, convenience and fairness to

litigants.” Id. Nonetheless, “in the usual case in which all federal-law claims are eliminated

before trial, the balance of factors to be considered under the pendent jurisdiction doctrine –

judicial economy, convenience, fairness, and comity – will point toward declining to exercise

jurisdiction over the remaining state-law claims.” Carnegie-Mellon Univ. v. Cohill, 484 U.S.



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343, 350 n.7 (1988); see also Edmondson & Gallagher v. Alban Towers Tenants Ass’n, 48 F.3d

1260, 1267 (D.C. Cir. 1995) (finding the discretion set out in Carnegie-Mellon Univ. “unaffected

by the subsequent enactment of 28 U.S.C. § 1367(d), in the Judicial Improvements Act of

1990”).

         Here the factors weigh against retention of the case. All federal claims against Defendant

are being dismissed. This case has not progressed in federal court past Defendant’s Motion to

Dismiss, and the Court has developed no familiarity with the issues presented. Cf. Schuler v.

PricewaterhouseCoopers, LLP, 595 F.3d 370, 378 (D.C. Cir. 2010) (finding that district court

appropriately retained pendent jurisdiction over state claims where it had “invested time and

resources” in the case). The Court can thus conceive of no undue inconvenience or unfairness to

the litigants that would result from such a decision. Finally, Plaintiff will not be prejudiced

because 28 U.S.C. § 1367(d) provides for a tolling of the statute of limitations during the period

the case was here and for at least 30 days thereafter. See Shekoyan, 409 F.3d at 419 (affirming

district court finding that because of this tolling, dismissal of pendent state claims “will not

adversely impact plaintiff’s ability to pursue his District of Columbia claims in the local court

system.”) (internal citation omitted). Therefore, to the extent the statute of limitations had not

already run on Plaintiff’s common-law claim at the time he filed this suit, this Court’s decision to

decline to exercise supplemental jurisdiction over such claim will not prejudice him. The Court,

therefore, will dismiss any legal-malpractice claim without prejudice, and Plaintiff may bring

such claim, if not barred, in the appropriate state or local court.

   IV.       Conclusion

         The Court will, therefore, issue a contemporaneous Order that grants Defendant’s

Motion, dismisses Plaintiff’s constitutional claims with prejudice, and dismisses any remaining



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common-law claim without prejudice to be refiled, should he desire, in the appropriate state or

local court.




                                                            /s/ James E. Boasberg
                                                            JAMES E. BOASBERG
                                                            United States District Judge


        Date: June 21, 2012




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