Opinion
Civil Action 4:22-CV-330
10-11-2022
JAMES EDWARD NOTTINGHAM, Plaintiff v. LYCOMING COUNTY PUBLIC DEFENDER'S et al., Defendants
MARIANI, D.J.
REPORT & RECOMMENDATION
William I. Arbuckle U.S. Magistrate Judge.
I. INTRODUCTION
On March 7, 2022, James Edward Nottingham (“Plaintiff”) initiated this pro se civil action. (Doc. 1). In his original Complaint (Doc. 1), Plaintiff alleged that Defendant William Miele, his former attorney, stole $40,000 from him. The Court screened his Complaint under the screening provisions for indigent filers and ordered Plaintiff to file an amended complaint to fix the deficiencies. Plaintiff did so, and to the Court's surprise, Plaintiff's First Amended Complaint now contains no reference to Defendant Miele's alleged theft. (Doc. 15). Instead, Plaintiff now asserts 42 U.S.C. § 1983 civil rights claims against Defendant Miele and six other former public defenders who represented him. Id. In his rambling First Amended Complaint Plaintiff describes various incidents occurring through a five-year odyssey of criminal hearings, trials, and appeals.
In his First Amended Complaint, Plaintiff now brings 42 U.S.C. § 1983 civil rights claims against the following seven Defendants:
1. Lycoming County Public Defender's;
2. Timothy A.B. Reitz;
3. Nicole J. Spring;
4. William Miele;
5. Matthew Welickovitch;
6. Dance Drier; and
7. Jeanna A. Longo.(Doc. 15, p. 2-3).
Plaintiff has been granted leave to proceed in forma pauperis. Because he is proceeding in forma pauperis, Plaintiff is subject to the screening provisions in 28 U.S.C. § 1915(e). The screening procedures set forth in the statute apply to in forma pauperis complaints filed by prisoners and non-prisoners alike. Under this statute, the Court is required to dismiss any action that is frivolous or malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief against a defendant who is immune from such relief. There is no constitutional right to the expenditure of public funds and the valuable time of federal courts to prosecute an action which is totally without merit.
See Atamian v. Burns, 236 Fed.Appx. 753, 755 (3d Cir. 2007).
See Collins v. Cundy, 603 F.2d 825, 828 (10th Cir. 1979).
After reviewing Plaintiff's First Amended Complaint, I conclude that it fails to state a claim upon which relief may be granted and is frivolous. Accordingly, it is RECOMMENDED that:
(1) Plaintiff's First Amended Complaint (Doc. 15) be DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii) without leave to amend.
(2) The Clerk of Court be DIRECTED to close this case.
II. LEGAL STANDARD FOR SCREENING COMPLAINTS FILED IN FORMA PAUPERIS
This Court has a statutory obligation to conduct a preliminary review of pro se complaints brought by litigants given leave to proceed in forma pauperis. Specifically, the Court is obliged to review the complaint in accordance with 28 U.S.C. § 1915(e)(2), which provides, in pertinent part:
(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that -
(A) the allegation of poverty is untrue; or
(B) the action or appeal--
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief.
In performing this mandatory screening function, the Court applies the same standard that is used to evaluate motions to dismiss under Rule 12(b)(6).
A complaint filed by a pro se litigant is to be liberally construed and ‘“however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Nevertheless, “pro se litigants still must allege sufficient facts in their complaints to support a claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013). A complaint must set forth in a “short and plain” statement of a cause of action.
III. BACKGROUND & PROCEDURAL HISTORY
This pro se, in form pauperis action began on March 7, 2022 when Plaintiff lodged a Complaint. (Doc. 1). In that original Complaint, Plaintiff alleged that Defendant William Miele, his former attorney, stole $40,000 from him out of a divorce settlement. Id. The Court screened his Complaint under the screening provisions in 28 U.S.C. § 1915(e) and ordered Plaintiff to file an amended complaint to fix the deficiencies noted in the March 30, 2022 Order. (Doc. 8). Plaintiff did so and filed his First Amended Complaint on April 22, 2022. (Doc. 15). Plaintiff's First Amended Complaint contains no reference to Defendant Miele's alleged theft. Id. Instead, Plaintiff now asserts 42 U.S.C. § 1983 civil rights claims against Defendant Miele, five other public defenders, and the Lycoming County Public Defender's. Id. Plaintiff alleges “the Lycoming County Public Defender's and the Chief public defenders who failed to properly train and supervise these subordinates. Did engage and enjoin [sic] in a seditious grand criminal conspiracy aiding and abetting the pennsylvania state troopers [sic] in violation of JAMES EDWARD NOTTINGHAM civil rights ....” (Doc. 15, p. 5) (emphasis in original).
Plaintiff names Defendant Nicole J. Spring as the Lycoming County Chief Public Defender. (Doc. 15, p. 2). Other than this broad sentence alleging a failure “to properly train and supervise” thereby participating in a “seditious grand criminal conspiracy” Plaintiff alleges no other facts about Defendant Spring, never pleads facts as to the alleged failure to “train and supervise,” and never mentions her by name in his Complaint. (Doc. 15) (emphasis in original).
Boiled down, Plaintiff's First Amended Complaint details his arrest and subsequent criminal trials and appeals, alleging what believes are various civil rights violations by the named Defendants. (Doc. 15). Plaintiff names seven Defendants:
1. Lycoming County Public Defender's;
2. Timothy A.B. Reitz (“Defendant Reitz”);
3. Nicole J. Spring (“Defendant Spring”);
4. William Miele (“Defendant Miele”);
5. Matthew Welickovitch (“Defendant Welickovitch”);
6. Dance Drier (“Defendant Drier”); and
7. Jeanna A. Longo (“Defendant Longo”).
IV. SUMMARY OF PLAINTIFF'S FIRST AMENDED COMPLAINT (AS STATED BY THE PLAINTIFF)
A. Plaintiff's Arrest and Arraignment
Plaintiff alleges that on July 13, 2015, he was falsely arrested (Doc. 15 ¶ 1) and subjected to “unreasonable excessive force” (Doc. 15 ¶ 2) and then brought to a “neighboring JURISDICTION . . . for arraignment and to verify the search warrant without any corrobating [sic] evidence rendering the search warrant VOID AB INITIO” (Doc. 15 ¶ 3) (emphasis in original). Plaintiff then had a preliminary hearing and “all charges (1-9) [were] dismissed ....” (Doc. 15 ¶ 4). Plaintiff alleges a Lycoming County District Attorney then forged a police complaint by adding a “count 10” which Plaintiff “was never charged or arrested being FORTIORI VOID for INSUFFICIENT SERVICE OF PROCESS.” (Doc. 15 ¶ 5) (emphasis in original). Plaintiff was then held in custody after all charges were dismissed [sic]. (Doc. 15 ¶ 6).
B. Plaintiff's First Defense Attorney Fails to Appear
On October 30, 2016, Defendant Timothy Reitz, who was apparently Plaintiff's defense attorney at the time, did not appear at call of the list because he was trying to make a plea deal with the District Attorney on count 10. (Doc. 15 ¶ 8). Plaintiff did not want to make a deal, and when told this Defendant Reitz became upset and informed Plaintiff later that day jury selection would be the following day with trial starting the day after that (Doc. 15 ¶ 9), giving Plaintiff “no minimum 10 day notice or any pretrials in violation of the fifth, sixth, and fourteenth amendments [sic] . . .” (Doc. 15 ¶ 10). During voir dire Defendant Reitz did not strike “a jurist that was anti-gun ....” (Doc. 15 ¶ 11). During trial, Defendant Reitz “yelled at [Plaintiff] to “shut up and sit down”” after Plaintiff made three objections. (Doc. 15 ¶ 12). During sentencing on January 10, 2017 Plaintiff “entered into the record that he never received a fair trial ....” (Doc. 15 ¶ 13).
C. Plaintiff's Public Defender Dismisses His Appeal
Defendant Reitz was then “terminated” for his “unethical conduct” and Defendant Matthew Welickovitch, a public defender, “entered his appearance” and then had Plaintiff's appeal “dismissed without preauthorization or permission in which none of the issues were ever raised on appeal as [Plaintiff] wished as entered into the record.” (Doc. 15 ¶ 14).
D. Plaintiff's Retrial
The Pennsylvania Superior Court then found that counsel was per se ineffective (Doc. 15 ¶ 15), and voir dire was held again “on the dismissed charges 1-9” where “the state [sic] agreed to suppress all blood evidence” and where a jury was selected “that [Plaintiff] rejected any part of this selection” and “charges 1 and 2 was [sic] NOLLE PROSSED . . .” (Doc. 15 ¶ 16) (emphasis in original). During trial, information was apparently introduced that “was not in the police AFFIDAVIT of BLAKE BROWN” in violation of Plaintiff's Sixth Amendment right “to confront his accuser ....” (Doc. 15 ¶ 20) (emphasis in original). Defendant Welickovitch did not make any objections “during the states [sic] direct exam [sic]” to inconsistent testimony and “failed to object or properly cross exam [sic] ....” (Doc. 15 ¶ 21). Plaintiff then testified but was quickly “removed after being badgered by his counsel” and then the District Attorney. (Doc. 15 ¶ 22). The District Attorney “interrupted direct exam to stop the jurors from hearing the truth of what really happened on July 13, 2015.” (Doc. 15 ¶ 23). The same day, Defendant Welickovitch and District Attorney Wade Martin informed Plaintiff's “family and supporters” that “the state does not hold pretrial hearings anymore as they just wasted the courts time.” (Doc. 15 ¶ 23).
The District Attorney and “counsel being complained about herein this petition” entered into an agreement regarding a blood sample that Plaintiff alleges was never in the inventory log thus demonstrating his counsel's incompetence and “fraud to obtain a guilty verdict.” (Doc. 15 ¶ 26). Plaintiff's counsel then did not object to hearsay evidence, evidence which “is in violation of the fifth amendment [sic] under self incrimination.” (Doc. 15 ¶ 27). The blood evidence was apparently often referred to at trial with no objections by counsel. (Doc. 15 ¶ 28). Plaintiff was found guilty, because, as he alleges, his counsel “failed to introduce exculpatory evidence ....” (Doc. 15 ¶ 29).
E. Plaintiff Appeals PRO SE
Plaintiff appealed his conviction pro se but “was continuously interrupted in acts of bad faith by counsel ....” (Doc. 15 ¶ 30). Plaintiff was sentenced on July 11, 2016 and alleges Defendant Welickovitch entered “into his ander's [sic] brief conclusion” information about other charges that were irrelevant. (Doc. 15 ¶ 31).
F. Plaintiff is Charged With Perjury
On September 14, 2017, one charge of perjury was filed against Plaintiff by the Lycoming County District Attorney for Plaintiff's alleged perjury, apparently at the previous trial. (Doc. 15 ¶ 32). Plaintiff alleges that criminal complaint is void. (Doc. 15 ¶ 33). Plaintiff did not participate in jury selection for this trial and was represented by Defendants Dance Drier and Jeanna Longo and believes that this case was “VOID FORTIORI AS HE WAS NEVER SERVED NOTICE OF ANY OF THE PROCEEDINGS.” (Doc. 15 ¶ 34) (emphasis in original). Defendants Drier and Longo apparently told Plaintiff they knew he was innocent based on a shell casing that was on the floor. (Doc. 15 ¶ 35). Trial was held on June 8, 2018 and Defendants Miele, Drier and Longo were “present on behalf of [Plaintiff] that was being pressured to take the plea deal.” (Doc. 15 ¶ 36). Plaintiff refused to accept a plea deal even after Defendant Miele “promised to ascertain [Plaintiff's] freedom ....” (Doc. 15 ¶ 37). Defense counsel then informed Plaintiff “that no evidence could be presented at this trial against his wishes and knowledge.” (Doc. 15 ¶ 39). Juror Michael Miller, the Williamsport Police Chief, admitted at the beginning of closing arguments that he heard a “synopsis of the case” while on his way in and defense counsel did nothing. (Doc. 15 ¶ 40). Plaintiff was then found guilty and there was argument to lower his “gravity score,” during which Defendant Drier sat “idle with his head down on the table.” (Doc. 15 ¶ 41).
G. Plaintiff Attempts To Appeal PRO SE Again
A Grazier hearing was then set for September 13, 2019, where Defendant Drier was found to have abandoned Plaintiff and Defendant Longo was then appointed to represent Plaintiff, which Plaintiff alleges was a conflict of interest since the two worked together. (Doc. 15 ¶ 42). During “this hearing [Plaintiff] was able to enter into the court record that he was never arrested for perjury by MICHAEL SIMPLER who never came to the camphill [sic] prison, and that he was never arrested or rearrested for any of the dismissed charges of July 17, 2015 in which he remains illegally imprisoned.” (Doc. 15 ¶ 43) (emphasis in original). Defendant Longo was at this hearing and then “entered into the appeal that [Plaintiff's] case is totally without merit that created a fraud in the appellate court.” (Doc. 15 ¶ 44). Plaintiff then filed “hybrid motions” to the Pennsylvania Superior Court but it refused to hear those issues, finding them to have been waved as the issues were “ignored by the state [sic] court.” (Doc. 15 ¶ 45). On March 24, 2020, the Pennsylvania Superior Court found counsel to be ineffective. (Doc. 15 ¶ 46).
Grazier states “when a waiver of the right to counsel is sought at the postconviction and appellate stages, and on-the-record determination should be made that the waiver is a knowing, intelligent, and voluntary one.” Commonwealth of Pa. v. Grazier, 713 A.2d 81, 82 (Pa. 1998).
The Court is unable to verify this occurred. On March 24, 2020 the Superior Court of Pennsylvania filed a decision granting Plaintiff's counsel's Petition to Withdraw and affirming Nottingham's judgment of sentence. In a footnote the Superior Court noted for Plaintiff that “a petition for relief under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546 . . . would be the appropriate venue for Nottingham to pursue his claims regarding ineffective assistance of counsel.” Commonwealth of Pa. v. James Edward Nottingham, No. 1645 MDA 2018, 2020 WL 1460713 (Pa. Super. Ct. March 24, 2020). This is not a finding of ineffective assistance of counsel, it is a procedural direction.
H. Plaintiff's Complaint Veers Into Arguments for a Motion to Dismiss and Summary Judgment
After ten and a half pages attempting to allege facts (Doc. 15, p. 1-11), Plaintiff's First Amended Complaint next appears to attempt to assert arguments for a Motion to Dismiss and a Motion for Summary Judgment (Doc. 15, p. 11-32). Plaintiff has apparently copied and pasted, without explanation, different informational materials into his First Amended Complaint, such as excerpts from LexisNexis Headnotes, American Jurisprudence, and the U.S. Supreme Court Digest, Lawyer's Edition. Id.
Plaintiff attempts to make arguments with some of the legal research materials he copied and pasted. (Doc. 15, p. 11-35). They appear to argue more for ineffective assistance of counsel rather than § 1983 violations. Ineffective assistance of counsel is a habeas question, not a civil rights violation question.
Plaintiff also attaches to his First Amended Complaint thirty-four pages of miscellaneous documents. (See Doc. 15-1). These documents include more informational materials, criminal complaints, affidavits of probable cause, letters from various entities responding to Plaintiff's request for documents, criminal dockets, a letter that appears to be from Defendant Reitz, court transcripts and other similar documents. Id.
I. Plaintiff is Clearly Bringing § 1983 Claims
Plaintiff makes it clear he is bringing 42 U.S.C. § 1983 claims. On the first page of his First Amended Complaint he states, “this is a CIVIL RIGHTS ACTION UNDER 42 U.S.C § 1983.” (Doc. 15, p. 1) (emphasis in original). He then states “the following civil rights violations did arise out of the following state cases” before listing the criminal trials he details in his First Amended Complaint. Id. at p. 4. Plaintiff alleges at the beginning of his First Amended Complaint that “the Lycoming County Public Defender's and the chief public defenders . . . Did engage and enjoin [sic] in a seditious grand criminal conspiracy aiding and abetting the pennsylvania state troopers [sic] in violation of [Plaintiff's] civil rights ....” (Doc. 15, p. 5) (emphasis in original). In the section describing his injuries Plaintiff states the Defendants “did violate [Plaintiff's] civil rights.” (Doc. 15, p. 33). Plaintiff then states that “the defendants [sic] did of their own free will enjoin [sic] and engage in seditious grand criminal conspiracy to imprison a wholly innocent man by violating his constitutional immunity rights and are to be held liable as defined supra.” Id. at p. 34. As relief, Plaintiff “IS SEEKING IN THIS ACTION AS AUTHORIZED BY LAW FROM EACH DEFENDANT NAMED HEREIN INDIVIDUALLY FOR NOMINAL, PUNITIVE, AND COMPENSATORY DAMAGES FOR THEIR VIOLATIONS OF [Plaintiff's] CIVIL RIGHTS . . . ” (Doc. 15, p. 34) (emphasis in original).
V. ANALYSIS
Plaintiff does not and cannot state § 1983 civil rights claims on which relief may be granted against any of the Defendants. The Defendants are not state actors for the purposes of § 1983 claims making his First Amended Complaint frivolous.
A. The § 1983 Claims Against All Defendants Fail and Are Frivolous
Plaintiff asserts § 1983 claims against all seven named Defendants. He states the Defendants “did violate [Plaintiff's] civil rights ....” (Doc. 15, p. 33). In his First Amended Complaint he alleges violations of his First Amendment, Fourth Amendment, Fifth Amendment, Sixth Amendment, Eighth Amendment, Thirteenth, and Fourteenth Amendment civil rights. (Doc. 15). Plaintiff asks for damages for the Defendants “violations of [his] civil rights ....” Id. at p. 34.
“Section 1983 imposes civil liability upon any person who, acting under the color of state law, deprives another individual of any rights, privileges, or immunities secured by the Constitution or laws of the United States.” Shuman v. Penn Manor Sch. Dist., 422 F.3d 141, 146 (3d Cir. 2005). “It is well settled that § 1983 does not confer any substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred.” Williams v. Pa. Human Relations Comm'n, 870 F.3d 294, 297 (3d Cir. 2017) (quoting Hildebrand v. Allegheny Cty., 757 F.3d 99, 104 (3d Cir. 2014) (internal citations omitted)). To establish a claim under Section 1983, Plaintiff must establish a deprivation of a federally protected right and that this deprivation was committed by a person acting under color of state law (a state actor). Woloszyn v. Cty. of Lawrence, 396 F.3d 314, 319 (3d Cir. 2005).
As to Defendant Reitz, he could not have plausibly been a state actor during his representation of Plaintiff. Defendant Reitz was a paid, private attorney at the time he represented Plaintiff starting in 2016. (Doc. 15-1, p. 13). Plaintiff refers to actions Defendant Reitz took as defense counsel, such as failing to appear at call of the list and not giving Plaintiff enough notice as to when jury selection would occur. (Doc. 15 ¶ 8-14). The Third Circuit has stated “it is well established that defense attorneys, no matter whether they are privately retained, court-appointed, or employed as public defenders, do not act under color of state law.” Deangelo v. Brady, 185 Fed.Appx. 173, 175 (3d Cir. 2006). Defendant Reitz was acting as Plaintiff's defense attorney. Therefore, Plaintiff has not and cannot state a § 1983 claim against Defendant Reitz.
Attached to his First Amended Complaint is a letter that appears to be from Defendant Reitz. (Doc. 15-1, p. 13). On the bottom of the letter Plaintiff wrote “Timothy Reitz was paid in full.”
If Plaintiff is alleging Defendant Reitz is a state actor purely because he is an attorney, this fails as “attorneys performing their traditional functions will not be considered state actors solely on the basis of their positions as officers of the court.” Angelico v. Lehigh Valley Hosp., Inc., 184 F.3d 268, 277 (3d Cir. 1999); see also Anthony v. Burns, Case No. 1:20-cv-164, 2021 WL 1670131, at *2 (W.D. Pa. Apr. 8, 2021), report and recommendation adopted, 2021 WL 1662835 (W.D. Pa. Apr. 28, 2021).
Defendants Spring, Miele, Welickovitch, Drier and Longo similarly were not state actors during their representation of Plaintiff. Plaintiff lists Defendants Welickovitch and Drier as Public Defenders, Defendant Spring as Chief Public Defender, Defendant Longo as First Assistant Public Defender and Defendant Miele as “Ex Lycoming County Chief Public Defender.” (Doc. 15, p. 2-3). The Supreme Court has decided “that a public defender does not act under color of state law when performing a lawyer's traditional functions as counsel to a defendant in a criminal proceeding.” Polk County v. Dodson, 454 U.S. 312, 325 (1981).
Again, the only mention Plaintiff makes of Defendant Spring in his First Amended Complaint is based on her role as Lycoming County Chief Public Defender. See n. 4, supra p. 5.
Plaintiff has not alleged any facts that suggest these Defendants were acting outside of their “traditional functions as counsel ....” Polk County, 454 U.S. at 325. In fact, Plaintiff has alleged these Defendants were acting within their “traditional functions,” Id., alleging acts such as Defendant Welickovitch disposing of Plaintiff's appeal without his permission (Doc. 15 ¶ 14), that Defendant Welickovitch did not object during direct examination or subject witnesses to proper cross-examination (Doc. 15 ¶ 21), that Defendant Drier “sat by in idle with his head down on the table” while sentencing was being discussed (Doc. 15 ¶ 41), and that Defendant Longo stated in an appeal her belief that the appeal was “totally without merit” (Doc. 15 ¶ 44). Again, the Third Circuit has stated “it is well established that defense attorneys, no matter whether they are privately retained, court-appointed, or employed as public defenders, do not act under color of state law.” Deangelo, 185 Fed.Appx. at 175. A public defender is simply not “a state actor for purposes of § 1983.” Dorn v. Aguilar, 645 Fed.Appx. 114, 115 (3d Cir. 2016) (per curiam). This concept has been continually affirmed. Therefore, Plaintiff has and cannot plead a § 1983 claim against Defendants Spring, Miele, Welickovitch, Drier and Longo.
See Ewell v. Vanston, Civ. A. No. 3:22-cv-00003, 2022 WL 985613, at *2 (M.D. Pa. Jan. 20, 2022), report and recommendation adopted, 2022 WL 969627 (M.D. Pa. March 30, 2022); and Pelier v. Kalinowski, Civ. A. No. 3:16-CV-02095, 2017 WL 2643422, at *3 (M.D. Pa. May 15, 2017), report and recommendation adopted, 2017 WL 2643269 (M.D. Pa. June 19, 2017).
Lastly, as to Defendant Lycoming County Public Defender's, a public defender's office is also not “a state actor for purposes of § 1983.” Dorn, 645 Fed.Appx. at 115; see Ewell, 2022 WL 985613, at *2; and Pelier, 2017 WL 2643422, at *3. Thus, Plaintiff has not and cannot plead a § 1983 claim against Defendant Lycoming County Public Defender's.
This Court interprets Lycoming County Public Defender's as meaning the Lycoming County Public Defender's Office.
If a complaint is subject to dismissal for failure to state a claim, “a district court must permit a curative amendment unless such an amendment would be inequitable or futile.” Phillips v. County of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008). Dismissals of frivolous claims, however, do not require leave to amend. Grayson v. Mayview State Hosp., 293 F.3d 103, 112-13 (3d Cir. 2002).
A complaint “is frivolous where it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989); see Ransome v. Anhalt, No. 202609, 2022 WL 964003, at *1 (3d Cir. Mar. 20, 2022). Here, all Plaintiff's claims and thus his First Amended Complaint lack an arguable basis in law. Plaintiff attempts to bring § 1983 claims against his former defense attorneys but once again “it is well established that defense attorneys, no matter whether they are privately retained, court-appointed, or employed as public defenders, do not act under color of state law.” Deangelo, 185 Fed.Appx. at 175. Plaintiff attempts to bring § 1983 claims against the Lycoming County Public Defender's, but that Office is not “a state actor for purposes of § 1983.” Dorn, 645 Fed.Appx. at 115. One essential element of a § 1983 claim is that the deprivation was committed by someone acting under the color of state law (a state actor). Woloszyn, 396 F.3d at 319. The law is clear that the Defendants Plaintiff tries to bring § 1983 civil rights claims against are not state actors. Plaintiff's claims have no arguable basis in law. Therefore, Plaintiff's claims and thus his First Amended Complaint are frivolous and do not require a second leave to amend. Grayson, 293 F.3d at 112-13.
Plaintiff was given the opportunity to amend his original Complaint and Plaintiff did so. (Doc. 15). While he completely changed the claims he brings and the Defendants he brings those claims against, Plaintiff was told in the Order what the two required elements for a § 1983 claim were (Doc. 8, p. 6), and was directed to DeAngelo, 185 Fed.Appx. at 175, with the Court quoting for him that “it is well established that defense attorneys, no matter whether they are privately retained, court-appointed, or employed as public defenders, do not act under color of state law” (Doc. 8, p.7 n. 2). Despite this instruction Plaintiff has sued his lawyers as state actors under a § 1983 claim.
VI. RECOMMENDATION
Accordingly, it is RECOMMENDED that:
(1) Plaintiff's First Amended Complaint (Doc. 15) be DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii) without leave to amend.
(2) The Clerk of Court be DIRECTED to close this case.
NOTICE OF LOCAL RULE 72.3
NOTICE IS HEREBY GIVEN that any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions.