BOND v. O'HANLON

Filing 4

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE C. DARNELL JONES, II ON 10/16/17. 10/17/17 ENTERED AND COPIES MAILED TO PLAINTIFF AND SUPERINTENDENT.(jaa, ) Modified on 10/17/2017 (jaa, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
HAKIM BOND,
Plaintiff

CIVIL ACTION

v.
NO. 17-2962
STEPHEN T. O'HANLON,
Defendant
MEMORANDUM

OCTOBER~~7

JONES, J.

Plaintiff Hakim Bond, a prisoner at the State Correctional Institution at Mahanoy, brings
this civil action pursuant to 42 U.S.C. § 1983 against the attorney representing him in his state
court post-conviction relief proceedings. Plaintiff seeks to proceed in forma pauperis. For the
following reasons, the Court will grant plaintiff leave to proceed in forma pauperis and dismiss
his complaint.
I.

FACTS

The Court understands plaintiff to be claiming that his PCRA counsel is ineffective and
discriminated against him, and that his PCRA counsel defamed his father and violated his
father's rights to due process and equal protection under the law. He also appears to allege that
his trial and appellate counsel were ineffective. A review of public dockets reflects that plaintiff
was convicted of first degree murder and related offenses in the Philadelphia Court of Common
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Pleas and ultimately sentenced to thirty-five years to life in prison. See Commonwealth v. Bond,
Docket No. CP-51-CR-0007714-2009 (Phila. Ct. Common Pleas). Plaintiff is currently awaiting

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Plaintiff was sentenced in 2012 to a term of life without the possibility of parole, but
was resentenced in 2015 to a term of thirty-five years to life in prison. See Commonwealth v.
Bond, Docket No. CP-51-CR-0007714-2009 (Phila. Ct. Common Pleas).
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a decision on his post-conviction relief petition in state court. See id. In the instant civil action,
plaintiff seeks $200,000 in damages and a court order requiring his attorney to give him a written
apology and withdraw from representing him in the PCRA proceedings.

II.

STANDARD OF REVIEW
The Court grants plaintiff leave to proceed in forma pauperis because it appears that he is

not capable of paying the fees to commence this civil action. 2 Accordingly, 28 U.S.C. §
1915(e)(2)(B)(ii) applies, which 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). The Court may also consider·inatters of public record. Buckv. Hampton

Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006). As plaintiff is proceeding prose, the Court
construes his allegations liberally. Higgs v. Att'y Gen., 655 F.3d 333, 339 (3d Cir. 2011).

III.

DISCUSSION
To the extent plaintiff is raising claims on his father's behalf based on harm sustained by

his father, his claims fail. "[A] plaintiff must assert his or her own legal interests rather than
those of a third party" to have standing to bring a claim. Twp. of Lyndhurst, N.J. v.

Priceline.com, Inc., 657 F.3d 148, 154 (3d Cir. 2011) (quotation omitted). Plaintiff alleges that
his PCRA attorney defamed his father and violated his father's constitutional rights, but plaintiff

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However, as plaintiff is a prisoner subject to the Prison Litigation Reform Act, he will
be obligated to pay the filing fee in installments pursuant to 28 U.S.C. § 1915(b).
2

does not have standing to pursue those claims. Accordingly, the Court will dismiss them without
prejudice.
The claims against plaintiffs PCRA attorney that he raised on his own behalf fail on their
merits. "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).
Section 1983 is not applicable here because plaintiffs attorney is not a state actor. See Polk
Cnty. 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); Angelico v. Lehigh Valley Hosp., Inc., 184 F.3d 268,
277 (3d Cir. 1999) ("Attorneys performing their traditional functions will not be considered state
actors solely on the basis of their position as officers of the court."). These claims are dismissed
with prejudice.
Additionally, plaintiff's claims regarding his displeasure with his PCRA attorney's
performance may not be pursued under§ 1983. First, "a state prisoner's§ 1983 action is barred
(absent prior invalidation)--no matter the relief sought (damages or equitable relief), no matter
the target of the prisoner's suit (state conduct leading to conviction or internal prison
proceedings)-if success in that action would necessarily demonstrate the invalidity of
confinement or its duration." Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (emphasis
omitted). As plaintiffs conviction and sentence have not been reversed, expunged, or otherwise
invalidated, his damages claims are currently not cognizable under§ 1983. Second, this Court
may not intervene in plaintiffs state criminal proceeding. See Younger v. Harris, 401 U.S. 37,

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43-44 (1971). Accordingly, if plaintiff seeks a new post-conviction attorney, he must raise that
issue with the state court.

IV.

CONCLUSION
For the foregoing reasons, the Court will dismiss plaintiffs complaint for failure to state

a claim, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Plaintiff will not be given leave to amend
because amendment would be futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 11213 (3d Cir. 2002).
An appropriate order follows.

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