Case: 17-10350 Date Filed: 09/28/2017 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-10350
Non-Argument Calendar
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D.C. Docket No. 2:16-cv-02058-AKK-SGC
WILLIAM N. LUCY,
Plaintiff - Appellant,
versus
JOHN GROW, II,
Attorney at Law,
Defendant - Appellee.
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Appeal from the United States District Court
for the Northern District of Alabama
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(September 28, 2017)
Before JORDAN, JULIE CARNES, and JILL PRYOR, Circuit Judges.
PER CURIAM:
Case: 17-10350 Date Filed: 09/28/2017 Page: 2 of 4
William Lucy, proceeding pro se and in forma pauperis, filed a notice of
appeal designating for appellate review the district court’s January 12, 2017 order
denying his motion for reconsideration. His initial brief, however, focuses
exclusively on the substantive components of his claim, as opposed to the more
stringent reconsideration standard. The district court addressed Mr. Lucy’s claim
in its December 27, 2016 order dismissing his complaint for lack of diversity
jurisdiction under 28 U.S.C. § 1332(a).
Mr. Lucy did not designate for review the December 27th order of dismissal
in his notice of appeal. Normally, his failure to do so would deprive us of
appellate jurisdiction over that order because Federal Rule of Appellate Procedure
3(c)(1)(B) requires the appellant to file a notice of appeal designating “the
judgment [or] order . . . appealed.” See Timson v. Sampson, 518 F.3d 870, 874
(11th Cir. 2008). But because we construe Rule 3’s notice requirement liberally,
see Smith v. Barry, 502 U.S. 244, 248 (1992), we often construe a notice of appeal
to include those orders the appellant intended to appeal. See KH Outdoor, LLC v.
City of Trussville, 465 F.3d 1256, 1260 (11th Cir. 2006) (construing notice of
appeal to include non-designated order, and looking to arguments in brief to derive
intent). Mr. Lucy’s initial brief makes it clear that he intended to appeal the
December 27th order of dismissal, so that is the order we will review.
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Mr. Lucy brought an action under 42 U.S.C. § 1983 against John Grow, II,
an attorney in Mobile, Alabama, for legal malpractice stemming from certain
alleged deficiencies in the way in which Mr. Grow handled Mr. Lucy’s criminal
case. The district court dismissed the complaint for lack of subject-matter
jurisdiction, ruling that it lacked diversity jurisdiction under 28 U.S.C. § 1332(a)
and federal-question jurisdiction under 28 U.S.C. § 1331. See D.E. 3.
Following a review of the record and Mr. Lucy’s arguments, we affirm. As
an initial matter, Mr. Lucy fails to challenge the district court’s jurisdictional
rulings, instead focusing on the merits of his claim. But assuming that his initial
brief implicitly challenges the district court’s jurisdictional rulings, Mr. Lucy still
cannot prevail. The district court correctly found that, as far as the complaint went,
Mr. Grow was a citizen of the State of Alabama for purposes of § 1332(a).
Without complete diversity, Mr. Lucy cannot proceed in federal court absent
some other jurisdictional basis. The only other possibly basis is federal-question
jurisdiction under § 1331 because Mr. Lucy sued under § 1983. Yet § 1983
provides no relief here because there is no allegation that Mr. Grow acted under
color of state law. Mr. Lucy alleged that Mr. Grow committed malpractice in his
private capacity as Mr. Lucy’s lawyer, which is not actionable under § 1983. We
therefore agree with the district court that it lacked subject-matter jurisdiction.
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AFFIRMED. 1
1
Mr. Lucy also moved for summary judgment on appeal. As an appellate court, we do not grant
summary judgment under Federal Rule of Civil Procedure 56(a). Construing Mr. Lucy’s motion
as one for summary disposition, we deny his motion because we have affirmed the district
court’s dismissal of his complaint for lack of subject-matter jurisdiction.
4