FAHEY v. PUBLIC DEFENDERS OFFICE OF ERIE COUNTY PA

Filing 7

MEMORANDUM OPINION & ORDER the motion for leave to proceed in forma pauperis 1 is GRANTED. IT IS FURTHER ORDERED that this action be dismissed as legally frivolous in accordance with 28 U.S.C. § 1915(e). The Clerk of Courts is hereby directed to close this case. Signed by Magistrate Judge Susan Paradise Baxter on 1/13/15. (lrw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
WARREN FAHEY, JR.,
Plaintiff,

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v.
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PUBLIC DEFENDER’S OFFICE OF
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ERIE COUNTY, PENNSYLVANIA, et al.,)
Defendant.
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Civil Action No. 14-295 Erie

Magistrate Judge Baxter

MEMORANDUM OPINION AND ORDER1
M.J. Susan Paradise Baxter
Procedural History
This action will be dismissed as legally frivolous in accordance with 28 U.S.C. §1915(e)
and the motion for leave to proceed in forma pauperis [ECF No. 1] will be granted.
On November 26, 2014, Plaintiff filed the instant action. At the time of the filing of the
complaint, Plaintiff filed a motion for leave to proceed in forma pauperis, along with his
institutional account statement from the state correctional system.
In his pro se complaint, Plaintiff names the Public Defender’s Office of Erie County,
Pennsylvania as the sole Defendant to this action. Plaintiff alleges that his constitutional rights
were violated by the legal representation he received through the Public Defender’s office.2
In accordance with the provisions of 28 U.S.C. § 636(c)(1), Plaintiff has voluntarily consented
to have a United States Magistrate Judge conduct proceedings in this case, including the entry of
a final judgment.
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To the extent that Plaintiff may be attempting to set forth either a legal malpractice or an
ineffective assistance of counsel claim against any individual attorney in the Public Defender’s
Office, such claims are not proper § 1983 claims. See generally Preiser v. Rodriguez, 411 U.S. 475,
500 (1973) (petition for writ of habeas corpus proper for ineffective assistance of counsel claim);
Shaw v. Stackhouse, 920 F.2d 1135 (3d Cir. 1990) (§ 1983 is designed to address constitutional
deprivations, not torts).
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Standards of Review
1) The Prison Litigation Reform Act
On April 23, 1996, the Prison Litigation Reform Act (hereinafter, “Act”), Pub.L.No. 104134, was enacted to amend 28 U.S.C. §1915, which establishes the criteria for allowing an action
to proceed without payment of costs. Section 1915(e) as amended, states in relevant part: “The
court shall dismiss the case at any time if the court determines that -- ...(B) the action or appeal -(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted...” A claim
is frivolous if it: 1) is based upon an indisputably meritless legal theory and/or, 2) contains
factual contentions that are clearly baseless. Neitzke v. Williams, 490 U.S. 319, 327 (1989). A
plaintiff has failed to allege a § 1983 claim if the court is satisfied “that no relief could be
granted under any set of facts that could be proved consistent with the allegation.” Hishon v.
King & Spaulding, 467 U.S. 69, 73 (1984). This Court has discretion to dismiss frivolous or
malicious in forma pauperis complaints under 28 U.S.C. § 1915(d). Wilson v. Rackmill, 878
F.2d 772, 774 (3d Cir. 1989). The U.S. Supreme Court has instructed that § 1915 provides the
Court with the authority “... to dismiss a claim based on an indisputably meritless theory, but also
the unusual power to pierce the veil of the complaint’s factual allegations and dismiss those
claims whose factual contentions are clearly baseless.” Neitzke, 490 U.S. at 327. In fact, the
statute not only empowers the court to screen out frivolous cases before the complaint is served,
it actually encourages it. Roman v. Jeffes, 904 F.2d 192, 195-96 (3d Cir. 1990).
Evaluating motions to proceed in forma pauperis under 28 U.S.C. § 1915 is a two-step
process. See id. at 194 n.1. “First, the district court evaluates a litigant's financial status and
determines whether (s)he is eligible to proceed in forma pauperis under § 1915(a). Second the
court assesses the complaint under [§ 1915(e)(2)] to determine whether it is frivolous.” Id.

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(internal citation omitted).Therefore, only after the district court grants the request to proceed in
forma pauperis may it dismiss the complaint as legally frivolous. See Jackson v. Brown, 460
Fed. Appx 77, 79 n.2 (3d Cir. 2012) (“As a procedural matter, therefore, the District Court
should have addressed Jackson's [ in forma pauperis ] motion before dismissing the complaint as
frivolous, rather than deny the [ in forma pauperis ] motion as moot after dismissal.”); Spuck v.
Fredric, 414 Fed.Appx 358, 359 (3d Cir.2011) (“When a complaint is submitted along with an [
in forma pauperis ] application, the complaint is not deemed filed unless and until [ in forma
pauperis ] status is granted. [ ... ] in that situation, the District Court must first rule on the [in
forma pauperis ] application and, only if it grants the application, proceed to determine whether
the complaint should be dismissed under 28 U.S.C. § 1915(e)(2)(B).”).

2) Failure to State a Claim
The legal standard for dismissing a complaint for failure to state a claim pursuant to §
1915(e)(2)(B)(ii) or § 1915A(b)(1) is identical to the legal standard used when ruling on a
Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). See Tourscher v.
McCullough, 184 F.3d 236, 240 (3d Cir. 1999). However, before dismissing a complaint or
claims for failure to state a claim upon which relief may be granted pursuant to the screening
provisions of either of these two statutes, a court must grant the plaintiff leave to amend his
complaint, unless amendment would be inequitable or futile. See Grayson v. Mayview State
Hosp., 293 F.3d 103, 114 (3d Cir. 2002).
In reviewing a pro se plaintiff's complaint, the court must accept all factual allegations in the
complaint as true and take them in the light most favorable to the pro se plaintiff. See Erickson v.
Pardus, 551 U.S. 89, 93 (2007); Phillips v. County of Allegheny, 515 F.3d 224, 229 (3d Cir.

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2008). A complaint must be dismissed if it does not allege “enough facts to state a claim to relief
that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 556 (2007). “Factual
allegations must be enough to raise a right to relief above a speculative level.” Id.at 555. The
court need not accept inferences drawn by the plaintiff if they are unsupported by the facts as set
forth in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp., 394 F.3d
126, 143 (3d Cir. 2004) (internal citation omitted). Nor must the court accept legal conclusions
set forth as factual allegations. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) citing
Papasan v. Allain, 478 U.S. 265, 286 (1986). Additionally, a civil rights claim “must contain
specific allegations of fact which indicate a deprivation of constitutional rights; allegations which
are nothing more than broad, simple and conclusory statements are insufficient to state a claim
under § 1983.” Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 887 (2d Cir. 1987).
Finally, a court must employ less stringent standards when considering pro se pleadings than
when judging the work product of an attorney. Haines v. Kerner, 404 U.S. 519, 520-521 (1972).
When presented with a pro se complaint, the court should construe the complaint liberally and
draw fair inferences from what is not alleged as well as from what is alleged. Dluhos v.
Strasberg, 321 F.3d 365, 369 (3d Cir. 2003). In a §1983 action, the court must “apply the
applicable law, irrespective of whether the pro se litigant has mentioned it by name.” Higgins v.
Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (internal quotation omitted). See also Nami v. Fauver,
82 F.3d 63, 65 (3d Cir. 1996) (“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.”). Notwithstanding this liberality, pro se litigants are not relieved of their
obligation to allege sufficient facts to support a cognizable legal claim.
Assessment of Plaintiff's motion for leave to proceed in forma pauperis
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In his motion, Plaintiff states that he is unable to pay the filing fee associated with this
case. Based upon this averment, I find that Plaintiff is without sufficient funds to pay the costs
and fees of the proceedings, and accordingly, his motion for leave to proceed in forma pauperis
will be granted.
Assessment of Plaintiff's complaint
Even liberally construing the factual allegations of the complaint, this action will be
dismissed as frivolous.
In order to bring suit under 42 U.S.C. § 1983, a plaintiff must allege that a person acting
under color of state law deprived him of his constitutional rights. Private attorneys, including
public defenders, acting on behalf of their clients are not state actors, and therefore, cannot be
held liable under § 1983. See Polk County v. Dodson, 454 U.S. 312, 325 (1991) (public
defender not a state actor “when performing a lawyer’s traditional functions as counsel to a
defendant in a criminal proceeding”); Jordan v. Fox, Rothschild, O’Brien & Frankel, 787
F.Supp. 471, 475 (E.D. Pa. 1992) (attorneys are not state actors by virtue of status as officers of
the court).
Plaintiff’s allegations do not support a §1983 claim against the Public Defender’s Office or
any individual attorney working through the Public Defender’s Office.3 Furthermore, the Public
“[P]ublic defenders are not immune from § 1983 liability when they conspire with state
officials to deprive their client of federal rights.” Figueroa v. Clark, 810 F.Supp. 613, 616 (E.D.
Pa. 1992); Tower v. Glover, 467 U.S. 914 (1984). Even if Plaintiff’s allegations are liberally
construed as alleging a conspiracy by the Assistant District Attorneys, the judge, and the Public
Defender, his claims fail. As a general matter, § 1983 claims need not be pled with any greater
particularity than any other claims (see Fed.R.Civ.P. 8), but conspiracy claims must be pled with
sufficient particularity to provide the defendants with fair notice of the claims against them.
Loftus v. Southeastern Pa. Transp. Auth., 843 F.Supp. 981, 986 (E.D. Pa. 1994). “When a
plaintiff in a § 1983 action attempts to assert the necessary ‘state action’ by implicating state
officials or judges in a conspiracy with private defendants, mere conclusory allegations with no
supporting factual averments are insufficient; the pleadings must specifically present facts
tending to show agreement and concerted action... The pleadings standard is even stricter where
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Defender’s Office is not a “person” as defined under § 1983 and thus, cannot be sued under that
statute. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989).
An appropriate Order follows.

the state officials allegedly involved in the conspiracy are immune from suit, as is the state court
judge and prosecutor in the instant case.” Hunt v. Bennett, 17 F.3d 1263, 1268 (10th Cir.), cert.
denied, 513 U.S. 832 (1994). As pled, there is nothing in Plaintiff’s allegations to factually
support a conspiracy claim.
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
WARREN FAHEY, JR.,
Plaintiff,
v.
PUBLIC DEFENDER’S OFFICE OF
ERIE COUNTY, PENNSYLVANIA,
Defendant.

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Civil Action No. 14-295 Erie

Magistrate Judge Baxter

ORDER
AND NOW, this 13th day of January, 2015;
IT IS HEREBY ORDERED that the motion for leave to proceed in forma pauperis [ECF
No. 1] is GRANTED.
IT IS FURTHER ORDERED that this action be dismissed as legally frivolous in
accordance with 28 U.S.C. § 1915(e). The Clerk of Courts is hereby directed to close this case.

/s/ Susan Paradise Baxter
SUSAN PARADISE BAXTER
United States Magistrate Judge

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