Opinion
CIVIL ACTION NO. 4:18-CV-01520
10-15-2018
JAMES E. NOTTINGHAM, Plaintiff, v. TIMOTHY A.B. REITZ, Defendant.
(BRANN, J.)
() REPORT AND RECOMMENDATION
Presently before the Court is a complaint and motion to proceed in forma pauperis, filed by pro se prisoner-Plaintiff James E. Nottingham ("Nottingham") on July 31, 2018. (Doc. 1; Doc. 2). Nottingham, a prisoner currently incarcerated at the State Correctional Institution at Camp Hill ("SCI-Camp Hill") in Lycoming County, Pennsylvania, also filed a motion for appointment of counsel on August 16, 2018. (Doc. 7). For the reasons provided herein, it is recommended that Nottingham's motion to proceed in forma pauperis be GRANTED, but that the complaint be DISMISSED with prejudice pursuant to 28 U.S.C. § 1915A(b)(1) and 28 U.S.C. § 1915(e)(2). It is additionally recommended that Nottingham's motion to appoint counsel be DENIED as MOOT. I. BACKGROUND AND PROCEDURAL HISTORY
Nottingham initiated the instant action on July 31, 2018, pursuant to this Court's federal question jurisdiction under 28 U.S.C. § 1331. (Doc. 1, at 3). Although the factual allegations in the complaint are sparse, Nottingham seeks damages against his former defense attorney, Timothy A.B. Reitz ("Attorney Reitz"), for violations of his First, Fifth Eighth, and Fourteenth Amendment Rights under the United States Constitution. (Doc. 1, at 3). Nottingham further appears to bring an ineffective assistance of counsel claim against Attorney Reitz, who Nottingham claims to have retained on February 15, 2016 in relation to an unspecified civil and criminal case. (Doc. 1, at 4). As a result of Attorney Reitz's alleged failure "to represent [Nottingham] to the best of his ability," Nottingham avers that he has suffered the loss of his business, liberty, and property. (Doc. 1, at 4). Nottingham further asserts that Attorney Reitz's deficient representation subjected him to wrongful imprisonment, mental anguish, and the deprivation of his rights under the constitution and state law. (Doc. 1 at 3-4).
Nottingham does not provide the appropriate case numbers for these criminal and civil actions. However, "[b]ecause under Rule 12(b)(6) courts may consider, in addition to the complaint, matters of public record and other matters of which a court may take judicial notice, and because the standards for dismissal for failing to state a claim under 28 U.S.C. § 1915(e) are the same as under a 12(b)(6) motion, the court may consider matters of which it may take judicial notice under 28 U.S.C. §§ 1915(e) and 1915A and under 42 U.S.C. § 1997e(c)." Banks v. Cty. of Allegheny, 568 F. Supp. 2d 579, 588 (W.D. Pa. 2008) (citing Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1385 n. 2 (3d Cir.1994)). Accordingly, the Court takes judicial notice of the publically available criminal dockets of the Lycoming County Court of Common Pleas and the Superior Court of Pennsylvania, to which Nottingham presumably refers. See Commonwealth v. Nottingham, Docket No. CP-41-CR-0001190-2015 (Lycoming Cnty. C.C.P.); Commonwealth v. Nottingham, Docket No. 2084 MDA 2016 (Pa. Super. Ct.). These dockets reveal that Attorney Reitz served as Nottingham's defense counsel and public defender. Commonwealth v. Nottingham, Docket No. CP-41-CR-0001190-2015 (Lycoming Cnty. C.C.P.); Commonwealth v. Nottingham, Docket No. 2084 MDA 2016 (Pa. Super. Ct.). Although the exact dates and circumstances surrounding Attorney Reitz's retention are unclear, it appears that he withdrew as Nottingham's counsel on December 20, 2016 in the Lycoming Court of Common Pleas action, and on February 3, 2017 with respect to Nottingham's direct appeal. Commonwealth v. Nottingham, Docket No. CP-41-CR-0001190-2015 (Lycoming Cnty. C.C.P.); Commonwealth v. Nottingham, Docket No. 2084 MDA 2016 (Pa. Super. Ct.).
The matter is now before the Court pursuant to its statutory obligation under 28 U.S.C. § 1915A and 28 U.S.C. §§ 1915(e) to screen the amended complaint and dismiss it if it fails to state a claim upon which relief can be granted. II. SCREENING STANDARDS
Under 28 U.S.C. § 1915A, the Court is obligated, prior to service of process, to screen a civil complaint in which a prisoner is seeking redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a); James v. Pa. Dep't of Corr., 230 Fed. Appx. 195, 197 (3d Cir. 2007) (not precedential). The Court must dismiss the complaint if it fails to state a claim upon which relief can be granted. 28 U.S.C. § 1915A(b)(1); Mitchell v. Dodrill, 696 F. Supp. 2d 454, 471 (M.D. Pa. 2010). The Court has a similar obligation with respect to actions brought in forma pauperis. See 28 U.S.C. § 1915(e)(2). In this case, because Nottingham is bringing his suit in forma pauperis, multiple provisions apply necessitating screening. In performing this mandatory screening function, a district court applies the same standard applied to motions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Mitchell, 696 F. Supp. 2d at 471.
Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a defendant to move to dismiss for "failure to state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). The United States Court of Appeals for the Third Circuit has noted the evolving standards governing pleading practice in federal court, stating that:
[s]tandards of pleading have been in the forefront of jurisprudence in recent years. Beginning with the Supreme Court's opinion in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), continuing with our opinion in Phillips [v. Cnty of Allegheny, 515 F.3d 224 (3d Cir. 2008)] and culminating recently with the Supreme Court's decision in Ashcroft v. Iqbal, 556 U.S. 662 (2009), pleading standards have seemingly shifted from simple notice pleading to a more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss.
Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).
In considering whether a complaint fails to state a claim upon which relief may be granted, the court must accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom are to be construed in the light most favorable to the plaintiff. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). A court "need not credit a complaint's 'bald assertions' or 'legal conclusions' when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Additionally, a court need not assume that a plaintiff can prove facts that the plaintiff has not alleged. Assoc'd. Gen. Contractors of Cal. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). In order to state a valid cause of action a plaintiff must provide some factual grounds for relief which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). When ruling on a motion to dismiss, a trial court must assess whether a complaint states facts upon which relief can be granted, and should "begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). "[T]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678.
In deciding a Rule 12(b)(6) motion, the court may consider the facts alleged on the face of the complaint, as well as "documents incorporated into the complaint by reference, and matters of which a court may take judicial notice." Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). Additionally, a document filed pro se is "to be liberally construed." Estelle v. Gamble, 429 U.S. 97, 106 (1976). A pro se complaint, "however inartfully pleaded," must be held to "less stringent standards than formal pleadings drafted by lawyers" and can only be dismissed for failure to state a claim if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). The Third Circuit has instructed that if a complaint is vulnerable to dismissal for failure to state a claim, the district court must 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). III. DISCUSSION
Although not expressly invoked in the complaint, when liberally construed, Nottingham appears to raise violations of his civil rights pursuant to 42 U.S.C. § 1983. Section 1983 provides in pertinent part:
To the extent Nottingham did not intend to file his complaint pursuant to this federal civil rights statute, the Court lacks jurisdiction to hear his claims under 28 U.S.C. § 1332. See 28 U.S.C. § 1332(a)(1) (providing district courts with "original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between citizens of different States."). Here, the Court cannot clearly invoke its jurisdiction over the complaint pursuant to 28 U.S.C. § 1332(a)(1), as Nottingham alleges both Parties are citizens of the Commonwealth of Pennsylvania. (Doc. 1, at 1-2). Thus, complete diversity is plainly lacking. See Grand Union Supermarkets of the Virgin Islands, Inc. v. H.E. Lockhart Mgmt., Inc., 316 F.3d 408, 410 (3d Cir. 2003) ("Jurisdiction under 28 U.S.C. § 1332(a)(1) requires complete diversity of the parties; that is, no plaintiff can be a citizen of the same state as any of the defendants.") (citing Carden v. Arkoma Assocs., 494 U.S. 185, 187 (1990)).
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . .
42 U.S.C. § 1983.
Section 1983 does not create substantive rights, but instead provides remedies for rights established elsewhere. City of Okla. City v. Tuttle, 471 U.S. 808, 816 (1985). To state a § 1983 claim, a plaintiff must demonstrate that the defendants, acting under color of state law, deprived the plaintiff of a right secured by the United States Constitution. Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995). The "under color of state law" element of § 1983 excludes from its reach "merely private conduct, no matter how discriminatory or wrongful." Blum v. Yaretsky, 457 U.S. 991, 1002 (1982). "As the 'under color of state law' requirement is part of the prima facie case for § 1983, the plaintiff bears the burden of proof on that issue." Groman v. Twp. of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995).
A. ATTORNEY REITZ IS NOT SUBJECT TO LIABILITY UNDER § 1983
As Nottingham's claims appear to be predicated upon a finding that Attorney Reitz is a "person" for the purposes of § 1983, the Court must first inquire into the statute's applicability to his conduct as an attorney. (Doc. 1, at 4). It is well established that "[p]rivate attorneys, including public defenders, acting on behalf of their clients are not state actors, and therefore, cannot be held liable under § 1983." Coudriet v. Vardaro, 545 F. App'x 99, 103 (3d Cir. 2013) (citing Polk Cnty. v. Dodson, 454 U.S. 312, 318 (1981) (holding that a court-appointed defense attorney is not a state actor for purposes of a § 1983 action simply "by virtue of being an officer of the court ...")); see also Clark v. Vernon, 228 F. App'x 128, 131 (3d Cir. 2007) ("[P]rivate attorneys, including those appointed and paid for by the state, do not act under color of state law when performing their function as counsel."). Further, an attorney does not act under color of state law when performing traditional functions as counsel in a criminal or civil proceeding. Polk Cnty., 454 U.S. at 325; see also Angelico v. Lehigh Valley Hosp., Inc., 184 F.3d 268, 277 (3d Cir. 1999) (holding that "[a]ttorneys performing their traditional functions will not be considered state actors solely on the basis of their position as officers of the court."). As articulated by the Third Circuit:
[a]lthough states license lawyers to practice, and although lawyers are deemed "officers of the court," this is an insufficient basis for concluding that lawyers act under color of state law for the purposes of 42 U.S.C. § 1983. Liability under 42 U.S.C. § 1983 cannot be predicated solely on the state's licensing of attorneys. Participation in a highly regulated profession does not convert a lawyer's every action into an act of the State or an act under color of state law.
Henderson v. Fisher, 631 F.2d 1115, 1119 (3d Cir. 1980) (per curiam) (citing Jackson v. Metro. Edison Co., 419 U.S. 345, 355 (1974)).
Here, Nottingham claims that Attorney's Reitz's representation, presumably as a public defender in his state court criminal case and as an acting attorney in his unidentified civil case, "resulted in extensive property damage[] and [Nottingham's] incarceration." (Doc. 1, at 4); Commonwealth v. Nottingham, Docket No. CP-41-CR-0001190-2015 (Lycoming Cnty. C.C.P.); Commonwealth v. Nottingham, Docket No. 2084 MDA 2016 (Pa. Super. Ct.). However, the acts of public defenders and private attorneys in the performance of their legal representation do not provide a basis for relief under § 1983. See Coudriet, 545 F. App'x at 103; Polk Cnty., 454 U.S. at 325; Clark, 228 F. App'x at 131. Accordingly, Attorney Reitz cannot be treated as a state actor for purposes of § 1983 merely due to his position as an officer as the Court.
The Court further recognizes that, under limited circumstances, a private individual may be liable under § 1983 if his or her conduct is so closely related to governmental conduct that it can be fairly viewed as conduct of the state itself. See Mark v. Borough of Hatboro, 51 F.3d 1137, 1142-43 (3d Cir. 1995) (detailing the various tests used to analyze whether private conduct may be treated as state action). However, even when taken in the light most favorable to Nottingham, the complaint fails to present any allegations that would allow the Court to reasonably infer Attorney Reitz's private conduct somehow constituted a state action. (Doc. 1). Rather, in essence, the complaint expresses Nottingham's dissatisfaction with Attorney Reitz's legal efforts, and the adverse effects he allegedly suffered as a result of Attorney Reitz's representation. (Doc. 1, at 3-4).Thus, even when taken as true, none of the conduct alleged by Nottingham can be fairly viewed as state action on the part of Attorney Reitz.
Accordingly, Nottingham cannot maintain a § 1983 action against Attorney Reitz, as he does not constitute a state actor subject to § 1983 liability. See Clark , 228 F. App'x at 131; Polk Cnty., 454 U.S. at 321-22. Further, Nottingham cannot overcome the threshold for bringing a § 1983 action against Attorney Reitz. See Angelico, 184 F.3d at 277. As such, the Court respectfully recommends that Nottingham's claims against Attorney Reitz be DISMISSED, as Attorney Reitz is not a person acting under the color of state law for the purposes of § 1983.
B. N OTTINGHAM ' S I NEFFECTIVE A SSISTANCE OF C OUNSEL C LAIM IS NOT COGNIZABLE UNDER § 1983
Even if this Court were to disregard extensive precedent precluding public defenders from § 1983 liability, any ineffective assistance of counsel claim with respect to Nottingham's criminal proceedings affords no relief under the statute. "[A] prisoner does not have a cognizable § 1983 claim, even if he or she does not seek relief from the fact or duration of confinement, for alleged unconstitutional conduct that would invalidate his or her underlying sentence or conviction unless that conviction has already been called into question." Grier v. Klem, 591 F.3d 672, 677 (3d Cir. 2010) (citing Heck v. Humphrey, 512 U.S. 477, 486-87 (1994)). A meritorious ineffective assistance of counsel claim requires the movant to show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694 (1984). Thus, a judgment in Nottingham's favor on his ineffective assistance of counsel claim would necessarily imply the invalidity of his state court sentence. See Thomas v. Jones, 428 F. App'x 122, 124 (3d Cir. 2011). This is plainly articulated in Heck, where the Supreme Court stated that:
in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983.
Heck, 512 U.S. at 486-87.
As Nottingham's § 1983 claim appears to be predicated upon Attorney Reitz's alleged ineffective assistance of counsel, which, if proven, would invalidate his state court sentence, a civil rights action is an improper vehicle for relief. See Introcaso v. Meehan, 338 F. App'x 139, 142 (3d Cir. 2009) (finding that "ineffective assistance of appointed counsel in representing a defendant is not actionable under § 1983."). Rather, although the complaint seeks monetary damages from Attorney Reitz as opposed to his release from SCI-Camp Hill, Nottingham's claims more properly fall under the habeas corpus umbrella. See Rushing v. Pennsylvania, 637 F.App'x 55, 58 (3d Cir. 2016). As a result, even if Attorney Reitz were subject to liability under 42 U.S.C. § 1983, this Court cannot provide such relief predicated upon the civil rights statute.
Even if the Court liberally construed Nottingham's ineffective assistance of counsel claim as a state law tort claim for legal malpractice, such a cause of action would not be viable against Attorney Reitz under 42 U.S.C. § 1983. See Shaw v. Stackhouse, 920 F.2d 1135 (3d Cir. 1990) (holding that § 1983 is designed to address constitutional deprivations rather than claims arising in tort).
Accordingly, the Court recommends that Nottingham's claims against Attorney Reitz on these grounds be DISMISSED. IV. LEAVE TO AMEND
The Court recognizes that pro se plaintiffs should often be afforded an opportunity to amend a complaint before the complaint is dismissed with prejudice, see Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 253 (3d Cir. 2007), unless granting further leave to amend would be futile or result in undue delay. Alston v. Parker, 363 F.3d 229, 235-36 (3d Cir. 2004). Here, the Court finds that amending Nottingham's claims brought under 42 U.S.C. § 1983 would be futile, as Attorney Reitz does not constitute a state actor under the civil rights statute. Further, even assuming arguendo that Attorney Reitz did act under color of state law as Nottingham's criminal defense attorney, any ineffective assistance of counsel claim asserted against him here is not cognizable in the § 1983 context. Accordingly, it is respectfully recommended that leave to amend the complaint be DENIED, and that all claims asserted against the sole Defendant, Attorney Reitz, be DISMISSED WITH PREJUDICE.
V. PLRA "THREE STRIKES" WARNING
Nottingham is hereby notified that a prisoner may not bring a civil action or appeal a civil judgment under 28 U.S.C. § 1915,
if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.Here, it is recommended that Nottingham's complaint be dismissed for failure to state a claim upon which relief can be granted. If this recommended disposition is adopted by the presiding United States District Judge, the dismissal of this action for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), 28 U.S.C. § 1915A(b)(1), and 42 U.S.C. § 1997e(c)(1) will constitute a "strike" under 28 U.S.C. § 1915(g), and the accumulation of additional strikes may bar Nottingham from proceeding in forma pauperis in later cases absent a showing of imminent danger. See generally Byrd v. Shannon, 715 F.3d 117, 126 (3d Cir. 2013) (articulating Third Circuit standard for application of § 1915(g) "three strikes" rule). VI. RECOMMENDATION
28 U.S.C. § 1915(g).
Based on the foregoing, the Court respectfully recommends that:
1. Plaintiff's motion for leave to proceed in forma pauperis (Doc. 2) be GRANTED;
2. Plaintiff's complaint (Doc. 1) be DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), 28 U.S.C. § 1915A(b)(1), and 42 U.S.C. § 1997e(c)(1) for failure to state a claim upon which relief can be granted;
3. Leave to amend be DENIED as futile;
4. Plaintiff's motion to appoint counsel (Doc. 7) be DENIED as MOOT; and
5. The Clerk's Office be directed to CLOSE this case.
Dated: October 15, 2018
/s/ _________
KAROLINE MEHALCHICK
United States Magistrate Judge (BRANN, J.)
(MEHALCHICK, M.J.) NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated October 15, 2018.
Any party may obtain a review of the Report and Recommendation pursuant to 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.
Dated: October 15, 2018
/s/ _________
KAROLINE MEHALCHICK
United States Magistrate Judge