Hobbs

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

EASTERN DIVISION

______________________________________________________________________________

ORLANDO DEAN HOBBS, )

)

Plaintiff, )

)

v. ) No. 1:25-cv-01231-BCL-jay

)

STEVEN L. WEST, CJA; RICHARD LEIGH )

GRINALDS, AUSA; JAMES W. POWELL, )

AUSA; WILLIAM JOSHUA MORROW, )

AUSA; D. MICHAEL DUNAVANT, USA; and )

VICTOR L. IVY, AUSA, )

)

Defendants. )

______________________________________________________________________________

REPORT AND RECOMMENDATION

______________________________________________________________________________

Before the Court is Defendant Steven L. West’s Motion to Dismiss. (Docket Entry [“D.E.”]

9). Plaintiff Orlando Dean Hobbs, proceeding pro se, has filed a response in opposition. (D.E. 23).

This case has been referred to the undersigned United States Magistrate Judge for management of

all pretrial matters and for determination and/or report and recommendation as appropriate.

Admin. Order 2013-05. It is recommended that Defendant West’s Motion to Dismiss be

GRANTED.

I.

In 2008, a federal grand jury for the Western District of Tennessee indicted Hobbs on one

count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g).1 (D.E. 1 at 4–

5, § III, ¶¶ A.–B.). The Court found that Hobbs qualified for the appointment of counsel and,

1 United States v. Hobbs, 1:08-cr-10075, D.E. 1 (W.D. Tenn. June 16, 2008).

pursuant to the Criminal Justice Act of 1964, appointed attorney West to represent him.2 (Id. at 1

§ I, ¶ B., at 4 § III, ¶ A.) Hobbs entered into a guilty plea on February 27, 2009, and was sentenced

on May 28, 2009. 3

On September 30, 2025, Hobbs brought this Bivens claim against West alleging that West

failed to adequately represent him, which resulted in Hobbs being wrongfully convicted. (Id. at 4-

5, § III, ¶¶ A.–B.) West has moved to dismiss Hobbs’s Complaint on three grounds. (D.E. 9). First,

West submits that this Court lacks subject matter jurisdiction and should dismiss the Complaint

pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. Next, West contends that the

Complaint should be dismissed pursuant to Rule 12(b)(6) because Hobbs failed to state a claim

upon which relief may be granted—specifically that Bivens does not extend to private attorneys

appointed by the court. Finally, West argues that even if this Court has jurisdiction and West

adequately stated a claim, his action is barred by the statute of limitations and statute of repose.

Hobbs has responded in opposition. (D.E. 23). In his response, Hobbs asserts that a court-appointed

private attorney may be considered a federal state actor under Bivens, and, therefore, the Court has

subject matter jurisdiction. Additionally, he argues that his Complaint stated a claim for relief

against West. Finally, he claims that he did not discover his alleged injury until May 11, 2025, and

that the discovery rule should toll the statute of limitations.

II.

Federal Rule of Civil Procedure 12(b)(1) allows dismissal for “lack of jurisdiction over the

subject matter” of claims asserted in the complaint. Generally, 12(b)(1) motions fall into two

categories: facial attacks and factual attacks. United States v. Richie, 15 F.3d 592, 598 (6th Cir.

1994). In a facial attack, the defendant asserts that the allegations in a complaint are insufficient

2 Id. at D.E. 8–9, 11.

3 Id. at D.E. 26–28, 32–33.

on their face to invoke federal jurisdiction. Id. By contrast, in a factual attack, the defendant

disputes the truth of the allegations that, by themselves, would otherwise invoke federal

jurisdiction, and the court is free to weigh the evidence. Id. A plaintiff has the burden of proving

subject matter jurisdiction to survive a motion to dismiss under Rule 12(b)(1). Madison-Hughes v.

Shalala, 80 F.3d 1121, 1130 (6th Cir. 1996). Lack of subject matter jurisdiction is a non-waivable,

fatal defect. Von Dunser v. Aronoff, 915 F.2d 1071, 1074 (6th Cir. 1990).

The Court must “consider the 12(b)(1) motion first, since the Rule 12(b)(6) challenge

becomes moot if [the] court lacks subject matter jurisdiction.” Houchens v. Beshear, 850 F. App'x

340 (6th Cir. 2021). “Where subject matter jurisdiction is challenged pursuant to Rule 12(b)(1),

the plaintiff has the burden of proving jurisdiction in order to survive the motion.” Moir v. Greater

Cleveland Reg'l Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990). Rule 12(b)(1) motions can make

facial or factual attacks on subject matter jurisdiction. Howard v. City of Detroit, 40 F.4th 417,

422 (6th Cir. 2022). Facial attacks challenge the sufficiency of the pleading, whereas factual

attacks challenge the facts in the pleading. Gentek Bldg. Prods., Inc. v. Sherwin-Williams Co., 491

F.3d 320, 330 (6th Cir. 2007). For this reason, when district courts review facial attacks, they take

the facts in the complaint as true, but the same presumption of truth does not apply to factual

attacks. Id.

Pro se complaints are held to less stringent standards than formal pleadings drafted by

lawyers and are thus liberally construed. Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011).

Even so, pro se litigants must adhere to the Federal Rules of Civil Procedure, see Wells v. Brown,

891 F.2d 591, 594 (6th Cir. 1989), and the court cannot create a claim that has not been spelled

out in a pleading. See Brown v. Matauszak, 415 F. App'x 608, 613 (6th Cir. 2011); Payne v. Sec'y

of Treasury, 73 F. App'x 836, 837 (6th Cir. 2003).

III.

In Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971),

the Supreme Court recognized an implied private action for damages against federal officers

alleged to have violated a citizen's constitutional rights. See Corr. Servs. Corp. v. Malesko, 534

U.S. 61, 66 (2001). This implied cause of action is “the federal analog to suits brought against state

officials” under 42 U.S.C. § 1983. Hartman v. Moore, 547 U.S. 250, 254 n.2 (2006). To state a

claim that is cognizable in a Bivens action, a plaintiff must plead two essential elements: first, that

he has been deprived of rights secured by the Constitution or laws of the United States, and second,

that the defendant acted under color of federal law. Bivens, 403 U.S. at 397.

Court-appointed counsel in federal criminal proceedings are not federal agents acting under

color of federal law for purposes of a Bivens action. In Polk Cnty. v. Dodson, 454 U.S. 312 (1981),

the Supreme Court held that a public defender, although paid and ultimately supervised by the

State, did not act under color of state law under 42 U.S.C. § 1983, the statutory counterpart to a

Bivens claim, when performing the traditional functions of counsel to a criminal defendant in a

state proceeding. Similarly, “an attorney is not transformed into a federal official for purposes of

a Bivens action merely because he is appointed by a federal court pursuant to federal law.” Pagani-

Gallego v. Escobedo, No. 97-1640, 1998 WL 381562, at *1 (6th Cir. June 23, 1998); see also

Stamper v. Bouldin, 46 F. App'x 840, 841 (6th Cir. 2002) (stating “an attorney appointed to

represent a criminal defendant pursuant to a federal statute is not a federal official for purposes of

a Bivens action”); Burrell v. Arnold, Nos. 97-3967, 97-4087, 1998 WL 537531 (6th Cir. Aug.10,

1998) (finding that a private attorney who agreed to represent plaintiff pro bono at request of

district judge was “not acting as government agents or performing government tasks”); Parker v.

Maloney, No. 1:20-cv-636, 2020 WL 5249072, at *3–4 (W.D. Mich. Sep. 3, 2020) (finding that

defendant’s court-appointed counsel was not acting under federal law in representing plaintiff and

dismissing Bivens action); Lownsberry v. Lees, No. 06–13602, 2008 WL 4852791, at *17 (E.D.

Mich. Nov. 7, 2008) (stating “federal public defenders and court-appointed counsel are not federal

agents acting under color of federal law for purposes of a Bivens action”); Kefalos v. Axelrod, No.

C2–03–180, 2005 WL 2493375 (S.D. Ohio Oct. 7, 2005) (finding court appointed counsel in

federal proceeding was not a federal official under Bivens).

Hobbs posits that West’s contention that he is not subject to suit under Bivens because he

is private attorney is an immunity defense. (See D.E. 23 at 2). Hobbs cites Ferri v. Ackerman, 444

U.S. 193 (1979), for the proposition that federal court-appointed counsel is not immune from suit

brought by a former client. (Id.). Hobbs’s reliance on Ferri is misplaced. In Ferri, the Supreme

Court examined whether the Criminal Justice Act or federal officer immunity caselaw provided

federally court-appointed counsel with absolute immunity in a state malpractice suit brought by a

former client. 444 U.S. at 193. After finding that the Criminal Justice Act provided no statutory

basis for immunity for court-appointed counsel, the Court turned to whether court-appointed

counsel may be entitled to federal official immunity. Id. at 199–201. The Court, in determining

that court-appointed counsel does not enjoy the immunity to which judges, prosecutors, and other

public officers are entitled, stated:

[T]he primary office performed by appointed counsel parallels the office of

privately retained counsel. Although it is true that appointed counsel serves

pursuant to statutory authorization and in furtherance of the federal interest in

insuring effective representation of criminal defendants, his duty is not to the public

at large, except in that general way. His principal responsibility is to serve the

undivided interests of his client. Indeed, an indispensable element of the effective

performance of his responsibilities is the ability to act independently of the

Government and to oppose it in adversary litigation.

Id. at 204.

While this passage was written in the context of whether court-appointed counsel is entitled

to immunity from suit and not whether a federal appointment to represent an indigent criminal

client transforms court-appointed counsel into a federal official for purposes of Bivens, it

reinforces the concept that court-appointed counsel does not act under color of law. Thus, Ferri

does not support Hobbs’s argument that court-appointed counsel, such as Defendant West, is

subject to a Bivens suit.

Because West, as Hobbs’s former court-appointed counsel, is not a federal official acting

under color of federal law for purposes of a Bivens action, this Court should find that it lacks

subject matter jurisdiction over Hobbs’s claim against West. Because the Court does not possess

subject matter jurisdiction over Hobbs’s claim under Rule 12(b)(1), it need not reach West’s Rule

12(b)(6) or statute of limitations arguments.

IV.

For these reasons, it is RECOMMENDED that the Court find that Defendant Steven West

is not subject to suit under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403

U.S. 388 (1971), and, as a result this Court does not have subject matter jurisdiction. The Court

should GRANT Defendant West’s Motion to Dismiss pursuant to Rule 12(b)(1) of the Federal

Rules of Civil Procedure.

Respectfully submitted, this the 22nd day of June, 2026.

s/Jon A. York

UNITED STATES MAGISTRATE JUDGE

NOTICE

WITHIN FOURTEEN (14) DAYS AFTER BEING SERVED WITH A COPY OF THIS

REPORT AND RECOMMENDATION DISPOSITION, A PARTY MAY SERVE AND

FILE WRITTEN OBJECTIONS TO THE PROPOSED FINDINGS AND

RECOMMENDATIONS. FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14)

DAYS MAY CONSTITUTE WAIVER AND/OR FORFEITURE OF OBJECTIONS,

EXCEPTIONS, AND FURTHER APPEAL.