February 13, 2001, (Filed February 14, 2001) ORDER by United States District Court Judge David S. Doty, in LAMBROS vs. FAULKNER. Please note that Judge Doty adopts the October 31, 2000 REPORT & RECOMMENDATION and affirms the conclusion that the state court would likely extend its grant of immunity to FAULKNER in this action. Also the Court stated, "plaintiff has adduced no evidence upon which a rational fact-finder could conclude that defense counsel's conduct in any way prejudiced plaintiff's defense or that defendant's coerced witnesses to give false testimony in plaintiff's criminal case." With all respect to Judge Doty, Lambros believes that Judge Doty is currently experiencing a1zheimer's and/ or has misplaced some of the above documents in this action. After reading this ORDER please go to LAMBROS' February 23, 2001, RULE 59(e) that responds to Judge Doty's theory in this ORDER. Thank you. This ORDER is a total of five (5) pages.
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 98-1621 (DSD/JMM)
JOHN GREGORY LAMBROS
CHARLES W. FAULKNER, SUED AS ESTATE/WILL/BUSINESS INSURANCE OF DECEASED ATTORNEY CHARLES W. FAULKNER
SHEILA REGAN FAULKNER
FAULKNER & FAULKNER, Attorneys at Law
JOHN & JANE DOE
This matter is before the court on the parties' objections to the report and recommendation of United States Magistrate Judge John M. Mason dated October 31, 2000. In that report, the magistrate judge recommended that: (1) defendants' motion to dismiss or for summary judgment be granted, and (2) plaintiff's motion for appointment of legal expert be dismissed as moot. Plaintiff objects to the recommended dismissal of his malpractice claim against his court-appointed defender in a federal criminal case, arguing that the magistrate judge erroneously concluded that under Minnesota law, a court-appointed attorney enjoys immunity from state tort claims. Plaintiff also contends that genuine issues of material fact exist with respect to both his malpractice and RICO claims, such that summary judgment would be inappropriate.
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I. Plaintiff's Objections
Plaintiffs first contend that based on the United States Supreme Court's holding in Ferri v. Ackerman, 444 U.S. 193 (1979), the magistrate judge erroneously concluded that the Minnesota Supreme Court would deem defendants immune from liability for legal malpractice. In Ferri, the Court examined a Pennsylvania Supreme Court decision to extend immunity to court-appointed defense counsel in a federal criminal case. Because the state court had based its decision squarely on federal law, the Court accepted review on the narrow issue of whether "federal law in any way preempts the freedom of a State to decide the question of immunity in this situation in accord with its own state law." Id. at 197. The Court found that it did not. The Court expressly asserted that "when state law creates a cause of action, the State is free to define the defenses to that claim, including the defense of immunity, unless of course, the state rule is in conflict with federal law." Id. at 198.
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The court has reviewed both the Ferri and Dziubak decisions and other relevant case law and agrees with the magistrate judge that the strong public policy rationale relied upon by the Dziubak court in granting immunity to full-time state public defenders is equally applicable to court-appointed defenders in a federal criminal case. Therefore, the court affirms the magistrate judge's conclusion that the state court would likely extend its grant of immunity to defendants in this action. Dismissal of plaintiff's malpractice claim on that basis is appropriate.
With respect to the magistrate's judge's conclusions concerning the merits of plaintiff's malpractice and RICO claims, the court agrees that plaintiff has adduced no evidence upon which a rational fact-finder could conclude that defense counsel's
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II. Defendants' Objections
The record shows that defendants did argue that plaintiff could not make out a claim for malpractice under the FTCA because defendant Faulkner was not a federal employee. [Doc. No. 103, Def. Reply Mem. at p. 61.
Defendants also urge the court to find that plaintiff's claims are frivolous for purposes of 28 U.S.C. § 191S(g).' In response, the court notes that all prisoner filings are subject to the strict gatekeeping procedures of the Prison Litigation Reform Act, which require the court to screen a prisoner's complaint and dismiss any portion that is legally frivolous, malicious, fails to state a claim upon which relief may be granted or seeks money damages from a defendant who is immune from such relief. See 28 U.S.C.
1. Footnote: Section 1915(g) provides:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section [28 U.S.C. § 1915] if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.
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In conclusion, after conducting a de novo review of the file and record, IT IS HEREBY ORDERED that:
1 . Defendants' motion to dismiss or for summary judgment [Doc. No. 90] is granted.
2. Plaintiff's motion for appointment of a legal expert [Doc. No. 100] is denied as moot.
LET JUDGMENT BE ENTERED ACCORDINGLY
Dated: February 13, 2001
David S. Doty, Judge
United States District Court
For more information write (snail mail) JOHN GREGORY LAMBROS directly at:
JOHN GREGORY LAMBROS
Prisoner No. 00436-124
U. S. Penitentiary Leavenworth
PO Box 1000
Leavenworth, KS 66048-1000
THANK YOU FOR YOUR SUPPORT AND ASSISTANCE IN MY BOYCOTT OF BRAZILIAN PRODUCTS.