Opinion
CIVIL ACTION NO. 19-CV-0912
03-11-2019
ROBERT LOUIS TUCKER, III, Plaintiff, v. MR. COLEY REYNOLDS, Defendant.
MEMORANDUM ROBRENO, J.
Pro se Plaintiff Robert Louis Tucker, III, a State prisoner currently incarcerated at SCI Frackville, has filed this civil action pursuant to 42 U.S.C. § 1983 against Coley Reynolds, an attorney. (ECF No. 2.) He has also filed a Motion for Leave to Proceed In Forma Pauperis (ECF No. 1) and a Motion for Reduction of Copies (ECF No. 3). For the following reasons, the Court will grant Tucker leave to proceed in forma pauperis, dismiss his Complaint, and deny as moot his Motion for Reduction of Copies.
I. FACTS
Tucker states that in March of 2018, he filed his second Post-Conviction Relief Act ("PCRA") in his state criminal proceedings. (Compl. at 7.) Proceedings on his PCRA petition were concluded on June 29, 2018. (Id.) However, Tucker alleges that he did not find out that Reynolds had been assigned to represent him until January of 2019. (Id.) Tucker suggests that Reynolds violated his Sixth Amendment right to counsel because he "failed in his legal duty to community or inform [him] about [his] case." (Id.) According to Tucker, Reynolds had represented him on his first PCRA petition in 2013 and asked to be removed as counsel of record in 2015. (Id.) Tucker does not understand why Reynolds was "reassigned to [his] 2nd PCRA." (Id.) He argues that he is "currently time barred because of Mr. Reynolds['s] actions." (Id. at 9.) He states that he "would like to resubmit [his] issues [presumably referring to resubmitting his PCRA petition], but not under the current trial Judge." (Id.) He also seeks damages. (Id. at 10.)
The Court uses the pagination assigned to the Complaint by the CM/ECF docketing system.
II. STANDARD OF REVIEW
The Court will grant Tucker leave to proceed in forma pauperis because it appears that he is incapable of paying the fees to commence this civil action. Accordingly, 28 U.S.C. § 1915(e)(2)(B)(ii) requires the Court to dismiss the Complaint if it fails to state a claim. Whether a complaint fails to state a claim under § 1915(e)(2)(B)(ii) is governed by the same standard applicable to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6), see Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999), which requires the Court to determine whether the complaint contains "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted). Conclusory allegations do not suffice. Id. As Tucker is proceeding pro se, the Court construes his allegations liberally. Higgs v. Att'y Gen., 655 F.3d 333, 339 (3d Cir. 2011).
However, as Tucker is a prisoner, he will be obligated to pay the $350.00 filing fee in installments in accordance with the Prison Litigation Reform Act. See 28 U.S.C. § 1915(b). --------
III. DISCUSSION
"To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48 (1988). Tucker cannot maintain his constitutional claims against attorney Reynolds, however, because Reynolds is not a state actor for purposes of § 1983. See Polk Cty. v. Dodson, 454 U.S. 312, 325 (1981) ("[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.") (footnote omitted); Naranjo v. City of Phila., 626 F. App'x 353, 356 (3d Cir. 2015) (per curiam) (concluding that post-conviction counsel was not subject to suit pursuant to § 1983); Clark v. Vernon, 228 F. App'x 128, 131 (3d Cir. 2007) (per curiam) (same). Thus, the Court must dismiss Tucker's Complaint for failure to state a claim.
IV. CONCLUSION
For the foregoing reasons, the Court will grant Tucker leave to proceed in forma pauperis and dismiss his Complaint. Tucker will not be permitted to file an amended complaint because he cannot cure the defects noted above. See Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002). Tucker's Motion for Reduction of Copies will be denied as moot. An appropriate Order follows.
BY THE COURT:
/s/ _________
EDUARDO C. ROBRENO, J.