RODRIGUEZ v. FERRANTE
OPINION. Signed by Judge Susan D. Wigenton on 1/6/17. (DD, ) N/M
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 16-8860 (SDW)
JOSEPH A. FERRANTE,
WIGENTON, District Judge:
Presently before the Court is the complaint of Plaintiff, Manuel Rodriguez. (ECF No. 1).
Also before this Court are Plaintiff’s latest application to proceed in forma pauperis and to reopen
this case (ECF No. 7) and his motion for the appointment of pro bono counsel. (ECF No. 6). As
Plaintiff has now established that leave to proceed in forma pauperis is warranted in this matter,
this Court will grant Plaintiff’s application to proceed in forma pauperis. (ECF No. 7). Because
this Court is granting that application, however, this Court is required to screen the complaint
pursuant to 28 U.S.C. § 1915(e)(2)(B). Pursuant to this statute, this Court must dismiss Plaintiff’s
claims if they are frivolous, malicious, fail to state a claim for relief, or seek damages from a
defendant who is immune. For the reasons set forth below, this Court will dismiss Plaintiff’s
federal claims with prejudice and will decline to exercise supplemental jurisdiction over his state
law legal malpractice claims.
Because all of Plaintiff’s claims over which this Court has
jurisdiction are being dismissed, this Court will in turn deny Plaintiff’s motion for the appointment
Plaintiff, Manuel Rodriguez, was arrested in November 2013 on charges of attempted
murder, conspiracy to commit murder, various weapons charges, aggravated assault and
conspiracy to commit aggravated assault. (ECF No. 1 at 2). Plaintiff thereafter hired Defendant,
Joseph Ferrante, to defend him. According to Plaintiff, Ferrante “failed to prepare” for pre-trial
appearances, and later abandoned Plaintiff by requesting to be relieved as counsel in June 2015.1
(Id. at 3-4). Plaintiff contends that Ferrante’s alleged failures amount to legal malpractice, and in
turn violated various of his constitutional rights.
A. Legal Standard
Per the Prison Litigation Reform Act, Pub. L. No. 104-134, §§ 801-810, 110 Stat. 1321-66
to 1321-77 (April 26, 1996) (“PLRA”), district courts must review complaints in those civil actions
in which a prisoner is proceeding in forma pauperis, see 28 U.S.C. § 1915(e)(2)(B), or seeks
damages from a state employee, see 28 U.S.C. § 1915A. The PLRA directs district courts to sua
sponte dismiss any claim that is frivolous, is malicious, fails to state a claim upon which relief may
be granted, or seeks monetary relief from a defendant who is immune from such relief. This action
is subject to sua sponte screening for dismissal under 28 U.S.C. §§ 1915(e)(2)(B) because Plaintiff
has been granted in forma pauperis status.
According to documents Plaintiff attaches to his complaint, Ferrante withdrew as counsel because
an insurmountable conflict had arisen out of Ferrante’s representation of an individual whose codefendant in another matter was Petitioner’s alleged victim. (See Document 2 attached to ECF
No. 1 at 4-5).
According to the Supreme Court’s decision in Ashcroft v. Iqbal, “a pleading that offers
‘labels or conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’”
556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To
survive sua sponte screening for failure to state a claim2, the complaint must allege “sufficient
factual matter” to show that the claim is facially plausible. Fowler v. UPMS Shadyside, 578 F.3d
203, 210 (3d Cir. 2009) (citation omitted). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Fair Wind Sailing, Inc. v. Dempster, 764 F.3d 303, 308 n.3 (3d
Cir. 2014) (quoting Iqbal, 556 U.S. at 678). Moreover, while pro se pleadings are liberally
construed, “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) (citation omitted) (emphasis
Plaintiff, in his complaint, seeks to raise claims against a private attorney, Joseph Ferrante,
for alleged violations of his constitutional rights pursuant to 42 U.S.C. § 1983. “To establish a
claim under 42 U.S.C. § 1983, a plaintiff must demonstrate a violation of a right protected by the
Constitution or laws of the United States that was committed by a person acting under the color of
state law.” Nicini v. Morra, 212 F.3d 798, 806 (3d Cir. 2000); see also Woodyard v. Cnty. of
“The legal standard for dismissing a complaint for failure to state a claim pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii) is the same as that for dismissing a complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6).” Schreane v. Seana, 506 F. App’x 120, 122 (3d Cir. 2012) (citing Allah v.
Seiverling, 229 F.3d 220, 223 (3d Cir. 2000)); Mitchell v. Beard, 492 F. App’x 230, 232 (3d Cir.
2012) (discussing 28 U.S.C. § 1997e(c)(1)); Courteau v. United States, 287 F. App’x 159, 162 (3d
Cir. 2008) (discussing 28 U.S.C. § 1915A(b)).
Essex, 514 F. App’x 177, 180 (3d Cir. 2013) (section 1983 provides “private citizens with a means
to redress violations of federal law committed by state [actors]”). “The first step in evaluating a
section 1983 claim is to ‘identify the exact contours of the underlying right said to have been
violated’ and to determine ‘whether the plaintiff has alleged a deprivation of a constitutional right
at all.’” Nicini, 212 F.3d at 806 (quoting County of Sacramento v. Lewis, 523 U.S. 833, 841 n. 5
Here, Plaintiff attempts to assert that Ferrante committed legal malpractice in
representing him in his criminal matter, and in so doing denied Plaintiff the benefit of his rights to
due process and the effective assistance of counsel.
The inherent problem in Plaintiff’s federal civil rights claims, however, is the fact that Mr.
Ferrante is a private attorney hired by Plaintiff. He does not appear to have been a state actor, and
all of his alleged failings occurred in the course of acting as Plaintiff’s criminal defense attorney.
Even if Mr. Ferrante had been a court-appointed lawyer or was acting as a public defender,
Plaintiff’s claims would fail to state a claim for relief under § 1983 because private defense
attorneys, “public defenders[,] and court-appointed counsel acting within the scope of their
professional duties are absolutely immune from civil liability under § 1983.”
Pennsylvania, 580 F. App’x 75, 78 (3d Cir. 2014) (quoting Black v. Bayer, 672 F.2d 309, 320 (3d
Cir. 1982), abrogated on other grounds by D.R. v. Middle Bucks Area Voc. Tech. Sch., 972 F.2d
1364, 1368 n. 7 (3d Cir. 1992)). This immunity arises from the fact that defense attorneys, even
those paid by the state as public defenders or state assigned counsel, do “not act under color of
state law when performing a lawyer’s traditional functions.” Polk Cnty. v. Dodson, 454 U.S. 312,
318 (1981). Because all of Plaintiff’s claims are based on Ferrante’s actions or failures to act as
Plaintiff’s criminal defense attorney, Ferrante was not acting under color of state law in
representing Plaintiff, and is therefore absolutely immune from liability under § 1983. Plaintiff’s
federal civil rights claims against Ferrante, the sole Defendant in this matter, must therefore be
dismissed with prejudice.
The only claim in Plaintiff’s complaint that does not arise out of § 1983 is Plaintiff’s state
law claim for legal malpractice. That claim, however, is not a claim over which this Court has
original jurisdiction. See, e.g., Gunn v. Minton, --- U.S. ---, ---, 133 S. Ct. 1059, 1064-65 (2013)
(legal malpractice claims arise out of state law, and will only be subject to original jurisdiction in
the federal courts where they actually and necessarily raise a substantial and disputed federal
issue). As this Court has dismissed with prejudice all of Plaintiff’s claims over which it has
original jurisdiction, this Court declines to exercise supplemental jurisdiction over Plaintiff’s
remaining state law legal malpractice claims. See 28 U.S.C. § 1367(c)(3). Plaintiff’s complaint
shall therefore be dismissed in its entirety. Finally, because Plaintiff’s complaint is being
dismissed in its entirety, Plaintiff’s motion for the appointment of counsel must in turn be denied
For the reasons stated above, this Court will grant Plaintiff’s application to proceed in
forma pauperis and to reopen this matter (ECF No. 7), will dismiss Plaintiff’s complaint (ECF No.
1) in its entirety and will deny Plaintiff’s motion for the appointment of counsel (ECF No. 6) as
moot. An appropriate order follows.
Dated: January 6, 2017
s/ Susan D. Wigenton
Hon. Susan D. Wigenton,
United States District Judge
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