Gebhart v. Fuschino

Filing 9

MEMORANDUM (Order to follow as separate docket entry)Since Gebhart's's civil rights complaint is "based on anindisputably meritlesslegal theory,"it will be dismissed,withoutprejudice,aslegally frivolous.Wilson,878 F.2dat774.Anappropriate Order willenter.Signed by Honorable Richard P. Conaboy on 10/9/15. (cc)

IN THE UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

STEVEN DOUGLAS GEBHART,
CIVIL NO. 3:CV-15-1687

Plaintiff

v.
(Judge Conaboy)
RICHARD FUSCHINO, JR.,

FILED
SRANTON
2015

Defendant
MEMORANDUM

..;.,\

Background

---....;;...~---I--

OEPUTY CLERK

Steven Douglas Gebhart, an inmate presently confined at the
Laurel Highlands State Correctional Institution, Somerset,
Pennsylvania

(SCI-~aurel

rights action.

Highlands)

initiat

this

The Plaintiff subsequently fil

leave to proceed in

nauperis.

se civil

a request for

Doc. 5.

The Complaint is

currently before the Court for preliminary screening pursuant to 28
U.S.C.

§

1915(e)(2)(b).

For the reasons that

fol~ow,

Plaintiff's

action will be dismissed without prejudice.
Named as sole Defendant is Attorney Richard Fus

ino, Jr.

Gebhart describes the Defendant as having served as his privately
retained criminal defense attorney.
was initially convicted of de

The P aintiff states that he

ive business practices, theft by

deception and corrupt organizations on November 17, 2010 following

1

a jury trial in the York County Court of Common Pleas.
4,

2011, he was sentenced to a 52 to 104

~onth

On February

term of

imprison~ent.

Gebhart indicates that he was also convicted of insurance
fraud on

Nove~ber

3, 2011 following a jury trial in the York County
Plaintiff was sentenced on December 21,

Court of Common Pleas.

2011 to a 9 month to 5 year consecutive term of

rceration.

According to the Complaint, the Defendant purportedly
abandoned Gebhart and engaged in fraud during the February 4,
sentencing hearing.

Doc. 1, p. 1. It is also all

2011

that the

Defendant was thereafter negligent in filing an appeal on behalf of
It is

Gebhart.

r asserted that the Defendant acted

improperly by withdrawing pre-trial motions on March 30, 2010.
id. at p. 3.

Plaintiff seeks compensatory and punitive damages.

Discussion
When considering a complaint accompanied by a motion to
proce

~~~ ~~~~~,

a district court may rule that process

should not issue if the complaint is malicious, presents an
indisputably meritless legal theory, or is predicated on clearly
baseless factual contentions.
327-28
132

490 U.S.

(1989), Douris v. Middleton Township, 293 Fed. Appx.

(3d Cir. 2008).

319,
130,

ndisputably meritless legal theories are

those "in which either it is

ly apparent that the pIa

iff's

complaint lacks an arguable basis in law or that the defendants are
clearly entitled to immunity from suit .,.
2

"

Roman v. Jeffes,

904

F.2d 1

, 194

(3d Cir. 1990)

(quoting

894 F.2d

1277, 1278 (11th Cir. 1990)).
Injunctive/Declaratory Relief

It is initially noted that this same De

ndant and allegations

were included in a companion habeas corpus petition filed by
Plaintiff which is also presently pending before this Court.
Inmates may not use civil rights actions to challenge the fact
or duration of their confinement or to seek earlier or spee
41~

release.
States Court of

U.S. 475 (1975).

er

The United

Is for the Third Circuit has similarly

recognized that civil

ghts claims seeking release from

confinement sounded in habeas corpus.

Georgevich v. Strauss,

772 F.2d 1078, 1086 (3d Cir. 1985).
The United States Supreme Court in
U.S.

, 520

641, 646 (1997), similarly concluded that a ci

for declaratory reI

1 rights claim

f "based on allegations ... that necessarily

imply the invalidity of the punishment imposed, is not cognizable"
. at 646.

in a civil rights action.
announ

in

and Edwards, Plaintiff's present claims of

being provided with ineffect
which led to an unconst

Based on the reasoning

ut

assistance by Attorney Fuschino
1 criminal conviction(s) and any

related requests to have his criminal conviction overturned are not
properly raised in a civil rights complaint.

Accordingly, any such

claims will be dismissed without prejudice to any r

t Plaintiff

may have to pursue such arguments via his pending federal habeas
3

corpus petition.
Monetary Damages
The United States Supreme Court in Heck v. Humphrey,

477

512 U.S.

(1994), ruled that a constitutional cause of action for damages

does not accrue "for aIle

y unconstitutional conviction or

imprisonment, or for other harm caused by actions whole
unlawfulness would render a conviction or sentence invalid," until
the plaintiff proves that the "conviction or sentence has been
reversed on direct appeal, expunged by execut

order, declared

invalid by a state tribunal authorized to make such determination,
or called

o question by a

habeas corpus."
As

ral court's issuance of a writ of

. at 486-87.

ously noted, Gebhart's action raises cIa

that he

was provided with ineffective assistance by the Defendant, his
defense attorney, which led to his state criminal conviction(s)
Based on the nature of Plaintiff's allegations, a find

ir. his

favor would imply the invalidity of his ongoing state confinement.
There is no indication that Gebhart has successfully appealed or
otherwise challenged his state criminal convictions.
Consequently, pursuant to Heck, Plaintiff's

tant Complaint

to the extent that it seeks an award of monetary damages on the
basis of illegal conviction and confir.ement is premature because he
cannot maintain a cause of action for an unlawful conviction or an
excessive imprisonment until the basis for the conviction and
imprisonment is overturned.
4

State Actor

A plaintiff, in order to state an actionable
rights claim, must plead two essential elements:

§

1983 civil
) that the

conduct complained of was committed by a person acting under color
of state law, and (2) that s

lege, or immunity secured by the Constitution or laws

right, pr

of the United States.
628,

638

conduct deprived the plaintiff of a

See Groman v. Township of ManalaDan,

(3d Cir. 1995); Shaw by Strain v. Strackhouse,

47 F.3d

920 F.2d

1135, 1141-42 (3d Cir. 1990).
It is well settled that public defenders and court appointed
counsel do not act under color of state law for purposes of §
when performing a tr
a criminal proce

ng.

tional lawyer's functions to a defendant in
Polk County v. Dodson, 454 U.S.

7 (1981); Black v. Bayer, 672 F.2d 309, 320

======'

459 U.S.

983

916 (1982).

3~2,

318 n.

(3d Cir.), cert.
2001 WL 322517

(E.D. Pa. Feb. 13, 2001) (defense counsel does not act under color
of state law); Figueroa v. Clark, 1992 WL 122872 (E.D. Pa. June 1,
1992) (a court appointed attorney represents only his client and not
the state).
The cIa

raised against Attorney Fuschino are solely based

upon any actions he took while acting as Plaintiff's privately
retained criminal defense counsel.
in

~~~~,

Polk and Black, the Defendant was not acting under color

of state law for purposes of § 1983
rega

Under the standards announced

th respect to any cIa

ng his performance as Plaintiff's crilliinal defense counsel.
5

As such, there is no basis for

§

1983 liability against the

Defendant.
Conclusion

Since Gebhart's's civil rights complaint is "based on an
indisputably meritless legal theory," it will be dismissed, without
prejudice, as legally frivolous.

Wilson, 878 F.2d at 774.

An

ate Order will enter.

.(itdI ;11 &(2e(~~)

RICHL~RD P. COl',JABOY

United States District

DATED: OCTOBER

q12015

6

.

Ju~