The opinion of the court was delivered by: FOLLMER
By Order dated January 10, 1967, this Court denied Cameron R. Pritt, plaintiff, leave to proceed in forma pauperis and dismissed his complaint because it was so vague that it was impossible to determine whether there was any merit to the complaint. The complaint alleged deprivation of his Civil Rights under 42 U.S.C. §§ 1983, 1985. Plaintiff has now filed a motion for reconsideration in which he states facts relating to his general allegations, in great detail (the motion is a 31 page handwritten document) and names ten additional persons as those he vaguely referred to in his original complaint. These ten additional persons named in the motion for reconsideration have been added as additional defendants.
In the "History of the Case,"
(Motion, p. 7, et seq.) plaintiff details the background of his complaint essentially as follows: On or about August 16, 1965, he alleges that he was arrested illegally by defendants Linker and Scutta who stopped the car he was in and forcibly took him to the station without a warrant. These same troopers refused to allow him to call an attorney, after which refusal he was interrogated about a certain crime. He was subsequently released from custody and later rearrested. He was placed in the York County Jail and upon a request for counsel, "Warden Johnson replied that legal aid counsel came to the Prison every Friday night, and that Plaintiff would have to wait until then." (Motion, p. 11).
On August 19, plaintiff was taken before Alderman Thomas where he again requested permission to contact an attorney. He asked Alderman Thomas if he had the right to counsel, and was told that the Alderman was not at liberty to answer the question or advise him what to do. (Motion, p. 12) He ultimately waived the hearing to await grand jury action.
The legal aid attorney apparently didn't come to the jail for the next two Fridays, but Warden Johnson had plaintiff come to his office at a later date and allowed him to prepare a request for court-appoint counsel, which request was granted.
It is also claimed that Gilbert Reverend, a bail bondsman, sent Dorothy Kriner to the District Attorney with a false and fictitious story implicating the plaintiff in a certain crime. Plaintiff further claims that letters written to his counsel were not mailed by the prison officials and that defendant Ernst induced him to withdraw his motion for new trial on promises of leniency.
There are many other allegations contained in plaintiff's complaint, but for the present purposes the above is basically the background that gave rise to this complaint.
In order that a claim be stated under 42 U.S.C. § 1983, facts must be alleged which show that a person: (1) while acting under color of any statute, ordinance, regulation, custom or usage of any State; (2) subjects or causes to be subjected, any person within the jurisdiction of the United States to the deprivation of any rights, privileges or immunities secured by the Constitution and laws of the United States. The element of conspiracy is added in Section 1985. Jurisdiction is obtained under 28 U.S.C. § 1343.
The first basic requirement is that the person being sued be acting under color of state law. "This test can rarely be satisfied in the case of anyone other than a state official." Jobson v. Henne, 355 F.2d 129, 133 (2d Cir.1966). "The misuse of power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law is action pursued under color of law within the meaning of 42 U.S.C.A. § 1983." Basista v. Weir, 340 F.2d 74, 80 (3d Cir.1965).
In this regard, it should be noted that plaintiff has again attempted to sue Mr. Noll, his counsel.
In Pugliano v. Staziak, 231 F. Supp. 347, 351 n. 5 (W.D.Pa.1964), aff'd. 345 F.2d 797 (3d Cir.1965), it is stated:
"An attorney's status as an 'officer of the court' does not make him an officer of the Commonwealth of Pennsylvania or of any governmental subdivision thereof. He is just another private individual for purposes of §§ 1983 and 1985. * * *"
The professional acts performed by plaintiff's counsel can not be considered acts done under color of state authority. Kregger v. Posner, 248 F. Supp. 804, 806 (E.D.Mich.1966). This complaint will be dismissed as against Noll, as was the previous complaint filed by plaintiff.