Opinion
1:21-CV-00304-SPB-RAL
03-02-2022
HERBERT D. REESE, Plaintiff v. MATHEW C PARSONS, ROBERT BOYER, RETIRED VENANGO COUNTY MAGISTRATE JUDGE, Defendants
SUSAN PARADISE BAXTER UNITED STATES DISTRICT WDGE
REPORT AND RECOMMENDATION ECF NO. 1
RICHARD A. LANZILLO UNITED STATES MAGISTRATE JUDGE
I. Recommendation
It is respectfully recommended that the Court grant Plaintiff Herbert D. Reese's (Reese) Motion for Leave to Proceed inf orma pauperis. ECF No. 1. It is further recommended that this action be dismissed, with prejudice, for failure to state a claim in accordance with 28 U.S.C. § 1915(e).
II. Report
A. Plaintiffs motion for leave to proceed inf orma pauperis
Reese, an inmate incarcerated at the Venango County Prison in Franklin, Pennsylvania, seeks leave to proceed informa pauperis because he is unable to pay this case's filing fee. ECF No. 1. Based upon this averment, it appears that he is without sufficient funds to pay the costs and fees for this action. Accordingly, his motion for leave to proceed informa pauperis should be granted and the Clerk should be directed to docket the Complaint.
B. Background
Reese's claims stem from his unsuccessful petition for post-conviction reliefin the Court of Common Pleas of Venango County, Pennsylvania. He seeks compensatory and punitive damages along with declaratory reliefpursuant to 42 U.S.C. § 1983 against two Defendants: Matthew Parson (Parson), his court-appointed attorney for his post-conviction reliefpetition and Robert Boyer (Judge Boyer), a retired judge of the Court of Common Pleas of Venango County.He alleges violations of the First, Fifth, Sixth, and Fourteenth Amendments.
Reese's petition for post-conviction relief concerned Case Nos. CP-61-CR-799-2006 and CP-61-CR-801-2006. See Unified Judicial System of Pennsylvania Web Portal, available at https://ujsportal.pacourts.us/CaseSearch (last accessed Feb. 27, 2022). A district court may take judicial notice of state court records, as well as its own. See Minney v. Winstead, 2013 WL 3279793, at *2 (W.D. Pa. June 27, 2013).
The case's caption incorrectly spells Defendant Matthew Parson's name.
The Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1343.
On November 14, 2006, Reese pied guilty in the Court of Common Pleas of Venango County to two counts oftheft in violation of18 Pa. Cons. Stat. § 3921(a), each ofwhich was docketed as a separate case number. The Court conducted a sentencing hearing on November 20, 2006, and sentenced Reese to a term ofprobation on each count to be served consecutively. About six months later, on May 29, 2007, at a probation revocation hearing before the same court, Reese pied guilty to another count oftheft under 18 Pa. Cons. Stat. § 3921(a). The court revoked his probation and sentenced him to a period ofincarceration in one criminal case and a consecutive term ofprobation in the other. Then, on November 12, 2009, Judge Boyer conducted a probation revocation hearing and received Reese's plea ofguilty to an additional count oftheft under 18 Pa. Cons. Stat. § 3921(a). Another judge ofthat court sentenced Reese to a period of incarceration on January 22, 2010.
On December 6, 2011, Reese filed a "motion for modification/correction of sentence nuncpro tune' pursuant to Pa.R.Crim.P. 720(B)(1)(a)(v); 42 Pa.C.S.A. § 5505," challeging the sentences he received in his probation revocation hearings. Judge Boyer construed this motion as a petition under Pennsylvania's post-conviction relief act (PCRA) and appointed Parson to represent Reese in the matter. Judge Boyer also ordered that if Parson intended to file an amended PCRA petition-or supplement, it was due by February 21, 2012. Although Parson requested an extension of this deadline, he never filed an amended PCRA petition. Instead, on November 30, 2021, he filed a Finley letter, stating that Reese's petition had no merit. See Commonwealth v. Finley, 379 Pa. Super. 390, 550 A.2d 213, 215 (1988). Another judge dismissed Reese's PCRA petition on January 6, 2022.
Reese argues that Parson violated his constitutional rights through allegedly ineffective assistance of counsel in failing to file an amended PCRA petition. He contends that Judge Boyer violated his rights when he allegedly failed to update him that no amended PCRA petition had been filed and when he failed to inform him that his PCRA petition had been dismissed. Judge Boyer's involvement in the PCRA proceeding was also allegedly a conflict of interest because he had revoked Reese's probation in the underlying proceeding.
C. Analysis
Having been granted leave to proceed in forma pauperis, Plaintiff is subject to the screening provisions in 28 U.S.C. § 1915(e). That statute requires, among other things, that the Court dismiss any action in which the Court determines that the action is "frivolous or malicious; fails to state a claim upon which relief may be granted; or seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2); Muchler v. Greenwald, 624 Fed.Appx. 794, 796-97 (3d Cir. 2015). A frivolous complaint is one which is either based upon an indisputably meritless legal theory (such as when a defendant enjoys immunity from suit) or based upon factual contentions which are clearly baseless (such as when the factual scenario described is fanciful or delusional). Neitzke v. Williams, 490 U.S. 319, 327 (1989). The determination as to whether a complaint fails to state a claim upon which relief may be granted is governed by the same standard applicable to motions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. D'Agostino v. CECOM RDEC, 436 Fed.Appx. 70, 72 (3d Cir. 2011) (citing Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999)). In screening a complaint under 28 U.S.C. § 1915(e), the court may consider matters subject to judicial notice, including state court dockets. See Tankersley v. Morris, 2009 WL 499264, at *3 (W.D. Pa. Feb. 26, 2009). Review of Reese's complaint leads the Court to conclude that § 1915(e) requires dismissal.
Because Plaintiff is proceeding pro se, his allegations, "however inartfully pleaded," are held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520-521 (1972). Moreover, under the liberal pleading rules, during the initial stages of litigation, a district court should construe all allegations in a complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997).
Reese's claims against Parson should be dismissed because a court-appointed attorney is not a “state actor” for purposes of 42 U.S.C. § 1983. To establish a claim under 42 U.S.C. §1983, it is axiomatic that a plaintiff must allege the deprivation of a federal right by a person acting under the color of state or territorial law. Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995). “[P]urely private acts which are not furthered by any actual or purported state authority are not acts under color of state law.” Barna v. City of Perth Amboy, 42 F.3d 809, 816 (3d Cir. 1994). In other words, a plaintiff cannot state a viable § 1983 unless he alleges the deprivation “of a federal constitutional or statutory right by a state actor.” Kach v. Hose, 589 F.3d 626, 646 (3d Cir. 2009). Private actors, on the other hand, “do not act under color of state law and thus “are not liable under Section 1983.” Gerhart v. Energy Transfer Partners, L.P., 2018 WL 6589586, at *9 (M.D. Pa. Dec. 14, 2018) (citation omitted). An attorney acting on behalf of his client is not a state actor. Polk County v. Dobson, 454 U.S. 312, 325 (1981); Angelico v. Lehigh Valley Hosp., Inc., 184 F.3d 268, 277 (3d Cir. 1999) (attorneys are not considered state actors “solely on the basis of their position as officers of the court”). And court-appointed counsel remains a private party. See Gannaway v. Stroumbakis, 842 Fed.Appx. 725, 730 (3d Cir. 2021); Clarkv. Punshon, 516 Fed.Appx. 97, 99 (3d Cir. 2013). While a private party can qualify as a state actor when “he is a willful participant in joint action with the State or its agents, ” Dennis v. Sparks, 449 U.S. 24, 27-28, (1980), Reese has not alleged any facts to support such participation and the facts he has alleged belie joint action between Parson and any agent of the Commonwealth. See Scruggs v. McQuillan, 2008 WL 465378, at *3 (W.D. Pa. Feb. 20, 2008) (“acts of.. .a state PCRA petitioner's attorney are not acts committed under color of state law.”). Thus, Reese's claims against Parson must be dismissed.
In addition, Parson's alleged ineffectiveness did not deprive Reese of a constitutional right. See Coleman v. Thompson, 501 U.S. 722, 752 (1991) (“There is no constitutional right to an attorney in state post-conviction proceedings. Consequently, a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings.”) (citations omitted); Scruggs v. McQuillian, 2008 WL 465378, at *4 (W.D. Pa. Feb. 20, 2008).
The Court should also dismiss Reese's claims against Judge Boyer based on Eleventh Amendment immunity and absolute judicial immunity. It is axiomatic that the Eleventh Amendment bars suits against a state. Alabama v. Pugh, 438 U.S. 781, 781-82 (1978). Judge Boyer's service as an arm of the Commonwealth of Pennsylvania entitles him to Eleventh Amendment immunity as to any claims against him in his official capacity. Van Tassel v. Lawrence Co. Domestic Relations Section, 659 F.Supp.2d 672, 676-82 (W.D. Pa. 2009), aff'd, 390 Fed.Appx. 201 (2010) (recognizing that Pennsylvania common pleas judges are entitled to Eleventh Amendment immunity over official capacity claims).
Although a state may expressly waive Eleventh Amendment immunity, “Pennsylvania has not waived its immunity from suit in federal court.” See Toth v. California Univ, of Pennsylvania, 844 F.Supp.2d 611, 648 (W.D. Pa. 2012) (citing 42 Pa. C.S.A. § 8521(b)). Nor did Congress intend to abrogate the traditional sovereign immunity afforded to the states by enacting 42 U.S.C. § 1983. Id. at 648.
If Reese intended to assert monetary claims against Judge Boyer in his individual capacity, “[i]t is a well-settled principle of law that judges are generally immune from a suit for money damages.” Figueroa v. Blackburn, 208 F.3d 435, 440 (3d Cir. 2000) (internal quotations omitted). Such immunity can only be overcome if the judge's actions are “nonjudicial in nature, or where such actions, while judicial in nature, are taken in the complete absence of all jurisdiction.” Van Tassel, 659 F.Supp.2d at 695 (internal quotation omitted); Stump v. Sparkman, 435 U.S. 349, 356-57 (1978). Plaintiff s allegations concern Judge Boyer's actions while presiding over probation revocation and PCRA proceedings in the Venango County Court of Common Pleas. Each of the alleged actions-appointing Parson and officiating over the case-comprises a fundamental judicial activity within the jurisdiction of a Pennsylvania common pleas court judge. See, e.g., 42 Pa. Cons. Stat. § 931(a) (“the courts of common pleas shall have unlimited original jurisdiction of all actions and proceedings, including all actions and proceedings heretofore cognizable by law or usage in the courts of common pleas”); Figueroa v. Blackburn, 208 F.3d 435, 443 (3d Cir. 2000) (explaining that the act of ordering a person to prison is a “paradigm judicial act”); Muhammad v. Cappellini, 2013 WL 1249029, at *3 (M.D. Pa. Mar. 27, 2013) (judicial acts include issuing orders, making rulings, and conducting hearings). Accordingly, Reese's individual capacity claims against Judge Boyer should be dismissed.
D. Leave to Amend
The Third Circuit has instructed that if a civil rights complaint is vulnerable to dismissal for failure to state a claim, the Court should permit a curative amendment, unless an amendment would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). This instruction is equally applicable to pro se litigants and those represented by counsel. Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004). Here, amendment would be futile because Parson is not a state actor and, therefore, not amenable to suit under 42 U.S.C. § 1983, and Judge Boyer is shielded from suit by Eleventh Amendment immunity and judicial immunity. Accordingly, leave to amend should not be granted.
III. Conclusion
For the foregoing reasons, it is respectfully recommended that this action be dismissed with prejudice in accordance with 28 U.S.C. § 1915(e)(2).
IV. Notice
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, the parties must seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the Objections shall have fourteen (14) days from the date of service of the Objections to respond thereto. See Fed.R.Civ.P. 72(b)(2). Failure to file timely objections may constitute a waiver of appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011); Nara v. Frank, 488F.3dl87 (3d Cir. 2007).
BY THE COURT: