Alonje K. Walton, Sr. v. Jeffrey J. Neslund

*The appellee was not served with process in the district court and is not
participating in this appeal. After an examination of the appellant’s brief and the
record, we have concluded that oral argument is unnecessary. Thus, the appeal is
submitted on the appellant’s brief and the record. See Fed. R. App. P. 34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 15, 2007*
Decided August 16, 2007
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 06-3021
ALONJE K. WALTON, SR.,
Plaintiff-Appellant,
v.
JEFFREY J. NESLUND,
Defendant-Appellee.
Appeal from the United States
District Court for the Northern
District of Illinois, Eastern Division
No. 06 C 2792
Suzanne B. Conlon,
Judge.
O R D E R
Illinois inmate Alonje K. Walton, Sr., claims that his retained attorney
violated his federal civil rights and committed malpractice at his state trial where
he was convicted of aggravated criminal sexual assault. The district court screened
Walton’s complaint under 28 U.S.C. § 1915A and dismissed it for failure to state a
claim. Walton appeals.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 06-3021 Page 2
As the district court observed, Walton cannot proceed with his federal claim
under 42 U.S.C. § 1983 because a lawyer is not a state actor when he performs the
traditional function of counsel to a defendant in a criminal case. See Polk County v.
Dodson, 454 U.S. 312, 318 (1981); Fries v. Helsper, 146 F.3d 452, 457 (7th Cir.
1998). Walton’s federal claim is patently frivolous, and so he could not rely on the
district court’s supplemental jurisdiction to entertain his state-law malpractice
claim. See 42 U.S.C. § 1367; Hagans v. Lavine, 415 U.S. 528, 536-37 (1974); In re
African-Am. Slave Descendants Litig., 471 F.3d 754,757-58 (7th Cir. 2006). And, as
the district court also recognized, Walton and his former lawyer are both citizens of
Illinois, so neither was there federal jurisdiction to hear the malpractice claim
under the diversity statute. See 28 U.S.C. § 1332; Hart v. FedEx Ground Package
Sys. Inc., 457 F.3d 675, 676 (7th Cir. 2006). Accordingly, the court properly
dismissed Walton’s complaint.
We note for future reference that Walton has incurred two “strikes” under 28
U.S.C. § 1915(g) in the course of this lawsuit: one for filing a frivolous claim in the
district court, and one for appealing the claim.
AFFIRMED.

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