Opinion
Civil Action 22-218
05-10-2022
BRIAN MARCEL WEBB, Plaintiff, v. MICHAEL C. BONNER, Defendant.
Re: ECF No. 7
J. Nicholas Ranjan District Judge
REPORT AND RECOMMENDATION
MAUREEN P. KELLY UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
For the reasons stated herein, it is respectfully recommended that this case be dismissed, sua sponte, pursuant to 28 U.S.C. § 1915(e)(2)(B), as being frivolous and malicious, and for failure to state a claim for which relief can be granted.
II. REPORT
A. Factual Background and Procedural History
Brian Marcel Webb (“Plaintiff”) proceeding pro se, submitted a complaint on February 7, 2022, without filing fee or request to proceed in forma pauperis. ECF No. 1. At the time of filing, it appears that Plaintiff was held at Lawrence County Corrections Facility in New Castle, Pennsylvania. Id. at 2. This Court issued a Deficiency Order on February 8, 2022. ECF No. 2. Since the issuance of that Order, it appears that Plaintiff has been released from custody. ECF No. 4. On May 31, 2022, Plaintiff filed a Motion for Leave to Proceed In Forma Pauperis (“IFP Motion”). ECF No. 5. This Court granted IFP status to Plaintiff on May 9, 2022, and the Complaint was filed on the same day. ECF Nos. 6 and 7.
In the Complaint, Plaintiff raises a variety of constitutional claims against his lawyer pursuant to the Civil Rights Act of 1871. ECF No. 7 at 3-5. Plaintiff's claims stem from his attorney's allegedly deficient representation in a criminal matter. Id. at 4. By way of relief, Plaintiff seeks monetary damages. Id. at 5.
B. Applicable Legal Standard
28 U.S.C.§ 1915 requires the federal courts to review complaints filed by persons that are proceeding IFP and to dismiss, at any time, any action that is frivolous or malicious, fails to state a claim on 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)(B). Thus, a court must dismiss, sua sponte, a complaint that lacks arguable merit in fact or law. Stackhouse v. Crocker, 266 Fed.Appx. 189, 190 (3d Cir. 2008) (citing Neitzke v. Williams, 490 U.S. 319, 325 (1989)). The standard for reviewing a complaint under Section 1915(e)(2)(B) is the same as that for determining a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999); see also Banks v. Mozingo, No. 08-004, 2009 WL 497572, at *6 (W.D. Pa. Feb. 26, 2009) (Cercone, J.).
Under Rule 12(b)(6), dismissal is appropriate if, reading the complaint in the light most favorable to the plaintiff, and accepting all factual allegations as true, no relief could be granted under any “reasonable reading of the complaint” Phillips v. Cty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008).
A court must employ less stringent standards when considering pro se pleadings than when judging the work product of an attorney. See Haines v. Kerner, 404 U.S. 519, 520 (1972). In a Section 1983 action, a court must liberally construe a pro se litigant's pleadings and “‘apply the applicable law, irrespective of whether a pro se litigant has mentioned it by name.'” Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (quoting Holley v. Dep't of Veteran Affairs, 165 F.3d 244, 247-48 (3d Cir. 1999)). “‘Since this is a § 1983 action, the [pro se] plaintiffs are entitled to relief if their complaint sufficiently alleges deprivation of any right secured by the Constitution.'” Higgins, 293 F.3d at 688 (quoting Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996)).
C. Legal Analysis
In order for a claim to be cognizable under 42 U.S.C. § 1983, a plaintiff must meet two threshold requirements. First, the alleged misconduct giving rise to the cause of action must have been committed by a person acting under color of state law; and second, the defendants' conduct must have deprived the plaintiff of rights, privileges, or immunities secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535 (1981), (overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 330 - 331 (1986)).
“Attorneys performing their traditional functions will not be considered state actors solely on the basis of their position as officers of the court.” Angelico v. Lehigh Valley Hosp., Inc., 184 F.3d 268, 277 (3d Cir. 1999) (citations omitted). See also Steward v. Meeker, 459 F.2d 669, 669 (3d Cir. 1972). For example, the Supreme Court of the United States has held that a public defender, while perhaps paid and supervised by the state, “does not act under color of state law when performing the traditional functions of counsel to a criminal defendant.” Polk Co. v. Dodson, 454 U.S. 312, 325 (1981); Calhoun v. Young, 288 Fed.Appx. 47, 49-50 (3d Cir. 2008) (public defender representing criminal defendant is not acting under color of state law).
The United States Court of Appeals for the Third Circuit has noted that “[p]rivate parties who corruptly conspire with a judge in connection with [an official judicial act] are ... acting under color of state law within the meaning of § 1983.” Great W. Min. & Mineral Co. v. Fox Rothschild, LLP, 615 F.3d 159, 176-77 (3d Cir. 2010) (quoting Dennis v. Sparks, 449 U.S. 24, 29 (1980)). However, the Third Circuit went on to recognize that “[t]he Supreme Court has held that ‘merely resorting to the courts and being on the winning side of a lawsuit does not make [the winning] party a co-conspirator or a joint actor with the judge.'” Great W., 615 F.3d at 178 (quoting Dennis, 449 U.S. at 28). To properly plead an agreement, “a bare assertion of conspiracy will not suffice.” Id. (quoting Bell Atl. Corp v. Twombly, 550 U.S. 544, 556 (2007)). Accord Coulter v. Ramsden, 510 Fed.Appx. 100, 103 (3d Cir. 2013).
In the instant case, Plaintiff seeks monetary damages due to his attorney's allegedly deficient performance. There is no indication in the Complaint that this attorney is a state actor, or that he conspired with a state actor. As such, Plaintiff's claims against his attorney are not cognizable under Section 1983. Plaintiff's claims should be dismissed with prejudice, because amendment would be futile. See Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007).
III. CONCLUSION
For the reasons stated herein it is respectfully recommended that this case be dismissed, sua sponte, pursuant to 28 U.S.C. § 1915(e)(2)(B), as being frivolous and malicious, and for failure to state a claim for which relief can be granted.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen days thereafter in accordance with Local Civil Rule 72.D.2.