Opinion
Civil Action No. 06-3118.
August 3, 2006
MEMORANDUM OPINION
The plaintiff, using the Clerk's standard form for prisoners bringing § 1983 actions, moves for leave to proceed in forma pauperis in this action against the public defender who represented him in prior state criminal proceedings. He asks that his criminal conviction be overturned and expunged, an order dismissing a prior federal civil rights suit he settled be vacated, and he be awarded money damages for lost work and mental anguish. Because the plaintiff does not allege any legal basis for bringing a § 1983 claim against the defendant, the complaint will be dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B).
The plaintiff is not currently incarcerated.
Discussion
When a civil action is filed in forma pauperis, the court "shall dismiss" the suit if it determines that it is frivolous. 28 U.S.C. § 1915(e)(2)(B)(i). A complaint is frivolous when it lacks any arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). An action is legally frivolous when it is based upon an undeniably meritless legal theory. Roman v. Jeffes, 904 F.2d 192, 195 (3d Cir. 1990). Here, there is no possible legal theory upon which the plaintiff can obtain relief.
To state a viable § 1983 claim, a plaintiff must establish that a person acting under color of state law deprived him of a federal right. Nicini v. Morra, 212 F.3d 798, 806 (3d Cir. 2000). When performing the traditional functions of a criminal defense attorney, a public defender is not acting "under color of state law." Polk County v. Dodson, 454 U.S. 312, 325 (1981). The plaintiff does not allege that the defendant's representation fell outside his role as criminal defense counsel. Nor does he allege any other basis for finding that the defendant is a state actor. Therefore, because the defendant was not a state actor when he represented the plaintiff, he cannot be sued under § 1983.
The plaintiff appears to rely on his attorney's alleged poor performance as a ground for setting aside his state criminal conviction. A civil rights action cannot be used to circumvent the effect of a state conviction which has not been invalidated by other official proceedings if judgment in the plaintiff's favor in the civil case would imply the state conviction was invalid. Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). The plaintiff does not allege that his state court conviction has been vacated. Yet, judgment in his favor would require a finding that his state criminal conviction was unlawful. Thus, a § 1983 theory of recovery is not available to the plaintiff.
In May 2004, the plaintiff sued the warden for damages arising out of an incident in which he was assaulted by another inmate at the Philadelphia Detention Center. (Civil Action No. 04-2186). That suit was settled and the case was dismissed pursuant to Rule 41.1(b) of the Local Rules of Civil Procedure. Order, Stackhouse v. City of Philadelphia, No. 04-2186, (E.D. Pa. Apr. 27, 2006) (Document No. 24). The defendant in this case had nothing to do with that civil case.