UNITED STATES DISTRICT COURT, EASTERN DISTRICT OF PENNSYLVANIA
March 10, 1982
Joseph DORSEY, et al.
The opinion of the court was delivered by: GILES
In this civil-rights suit under 42 U.S.C. § 1983, a state prisoner complains that during his trial, the state court refused to file various pro se papers. Upon review of plaintiff's amended complaint, I shall dismiss this action for the reasons which follow.
The original complaint in this action alleged that defendant Keithly, an officer of the Delaware County Court of Common Pleas, refused to accept filings from plaintiff. Plaintiff also sued Ms. Keithly's superior, Joseph Dorsey. I dismissed Mr. Dorsey because the complaint alleged no wrongdoing on his part. The remainder of the complaint was dismissed for lack of specificity, with leave to amend. I required that the amendment state, at a minimum, the time, nature, and case number of the purportedly rejected filings. See Memorandum and Order (Dec. 17, 1981).
Plaintiff timely filed an amended complaint in full compliance with those requirements.
He recounted, in detail, four papers submitted to defendant Keithly which she allegedly should have docketed, but instead returned to the plaintiff. Amended Complaint at 2-3. Each paper was intended to be filed in the criminal proceeding in which plaintiff was eventually convicted, Commonwealth v. Hall, Del.Cty. C.P.No.2359-80. Id. at 3-4. The papers, either sent directly to Ms. Keithly, or routed through plaintiff's attorney, were all pro se. In sum, defendant is alleged to have refused to file pro se papers in a case in which plaintiff was represented by counsel.
Under federal law, a criminal defendant has the right to appear pro se or by counsel.
This right is guaranteed both by the Constitution and by statute.
The federal right, however, is disjunctive; a party may either represent himself or appear through an attorney. There is no right to "hybrid" representation-simultaneously pro se and by counsel.
Pennsylvania law also gives the accused the right to counsel and the right to defend himself.
Like the federally-created rights, these state rights have consistently been interpreted to be disjunctive. The accused has the right to be heard by himself; the accused has the right to be heard by his counsel; but not both.
Thus, under both federal and state law, an accused who appears by counsel possesses no right to proceed pro se. Here, according to the amended complaint, plaintiff was represented by counsel at his state trial (and apparently is still represented by counsel on appeal). Accordingly, he had no right to file papers pro se.
Defendant Keithly's alleged refusal to accept those papers violated no right of plaintiff. Because no right was violated, the complaint will be dismissed pursuant to 28 U.S.C. § 1915(d).