782 F.2d 1043 (6th Cir. 1985), 84-3720, Stern v. O'Brien

Docket Nº:84-3720
Citation:782 F.2d 1043
Party Name:WILLIAM E. STERN, Plaintiff-Appellant, v. KERRY M. O'BRIEN, Defendant-Appellee.
Case Date:December 13, 1985
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 1043

782 F.2d 1043 (6th Cir. 1985)

WILLIAM E. STERN, Plaintiff-Appellant,


KERRY M. O'BRIEN, Defendant-Appellee.

No. 84-3720

United States Court of Appeals, Sixth Circuit

December 13, 1985

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA6 Rule 28 and FI CTA6 IOP 206 regarding use of unpublished opinions)




BEFORE: KENNEDY and GUY, Circuit Judges; and WOODS, District Judge. [*]

Plaintiff appeals the district court's dismissal of his civil rights complaint brought under 42 U.S.C. § 1983. The case has been referred to a panel of this Court pursuant to Sixth Circuit Rule 9(a). Upon examination of the briefs and record, the panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

Plaintiff was convicted of aggravated murder, attempted murder, and felonious assault in Ohio. Following his conviction, plaintiff discharged his retained attorney Kerry O'Brien, and requested the surrender of his file. O'Brien refused to surrender the file until his fee had been paid. Plaintiff then filed this pro se action alleging that O'Brien violated his civil rights by failing to surrender the file. Defendant filed a motion to dismiss on the grounds that he had valid lien on the file. The court sua sponte entered an order stating that the complaint failed to allege state action and granting plaintiff thirty days to show cause why the case should not be dismissed on that ground. Plaintiff filed a response in which he argued that O'Brien as an attorney was an officer of the court, and there was a 'power flow' of state authority to O'Brien through his possession of the file. He also requested the court to accept pendent jurisdiction over the complaint insofar as it raised state claims. The district court dismissed the case on the grounds that plaintiff failed to allege state action required to proceed under section 1983, and pendent jurisdiction was inapplicable when federal jurisdiction was lacking. We affirm.

Defendant argues in his brief that this Court lacks jurisdiction because the notice of appeal was late. The judgment was entered July 27, 1984, and the notice of appeal was filed thirty-one days later on August 27, 1984. The notice of appeal was within the thirty day time limit because the...

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