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MESSA v. RUBIN

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


August 16, 1995

RUSBEIRO MESSA
v.
FREDERICK RUBIN, ESQ., PERLOFF, RUBIN & ASSOC.; COMMONWEALTH OF PENNSYLVANIA; CITY OF PHILADELPHIA

The opinion of the court was delivered by: LOUIS H. POLLAK

MEMORANDUM

 POLLAK, J.

 AUGUST 16, 1995

 Plaintiff, Rusbeiro Messa, has filed a pro se complaint seeking damages under a number of federal and state-law claims, and has filed a motion to proceed in forma pauperis. Messa asserts that his debts substantially exceed his assets, and that his income is very small; because there is no reason not to believe these claims, his motion to proceed in forma pauperis is granted. However, as noted in this court's memorandum dismissing another action by Messa, the statute granting courts the power to allow plaintiffs to proceed in forma pauperis, 28 U.S.C. § 1915, permits the court to dismiss actions in which recovery is precluded as a matter of law. See Messa v. Allstate Insurance Co., 897 F. Supp. 876, slip op. at 1 (E.D. Pa. 1995). As in that action, such dismissal appears appropriate here.

 Messa alleges that in late 1992 (the precise date is not specified), his son, Alex Messa, then eighteen years old, was a victim of carjacking while driving the elder Messa's car. Alex Messa was forced into the back seat of the car; after the carjacker assaulted several women at gunpoint, an off-duty police officer named Burnett fired upon the car, hitting and injuring Alex Messa. In the ensuing investigation, the police asked the elder Messa for the names of Alex Messa's friends, as possible suspects; when no suspects were identified in this fashion, an Officer Polakow arrested Alex Messa while the latter was in a local hospital. Plaintiff alleges that Alex Messa asked for a doctor to remove a bullet from his right hand, and asked to see his father and a lawyer, but that a detective named Grim ordered that treatment be withheld until he gave a statement. Alex Messa then apparently did give a statement; however, although he spoke continuously for twenty minutes, Grim transcribed only one and a third pages, which Alex Messa then declined to sign as not including all that he had said. Elements of this statement were then allegedly included in a subsequent police report, and criminal charges were brought against Alex Messa.

 Rusbeiro Messa then secured the assistance of counsel, in the form of defendant firm Perloff, Rubin & Assoc., for a fee of $ 4,500. The firm assigned defendant Frederick Rubin, Esq. to conduct the defense. Messa alleges a series of irregularities in the ensuing trial: an order by the judge, Judge Greenspan, to Alex Messa not to discuss his testimony with his attorney; an order by the judge finding testimony by a blood expert, a ballistics expert, and the alleged co-conspirator unnecessary; and an instruction by the judge to the jury on conspiracy that said: ". . . in this case, I think it is clear that the defendant (Alex) and . . . there was an agreement to engage in conduct which would constitute crimes of robbery and aggravated assault." Complaint, P 11. (The ellipses, which complicate the task of determining whether the charge is flawed, appear in the complaint.)

 Messa alleges that Rubin failed to object to the two flawed orders or to the judge's instruction on conspiracy. The jury found Alex Messa guilty shortly thereafter. Alex Messa was released on bail, apparently pending sentencing, and, according to plaintiff, then became "a fugitive with order of arrest."

 Based on these facts, Messa makes a variety of claims under 42 U.S.C. §§ 1983, 1985, and 1986 and under state law against three groups of defendants: the Commonwealth of Pennsylvania, Judge Jane Cutler Greenspan, and Deputy District Attorney Fern Kletter, Esq.; the City of Philadelphia and police officers Polakow, Burnett, Grim, and Judge; and Perloff, Rubin & Associates and its attorneys Neil Perloff, Frederick Rubin, and David Boyer. Messa's claims raise a number of legal questions, only a few of which will be discussed here; for instance, the court will not reach the question of whether plaintiff has standing to assert claims of violations of his son's rights.

 Messa's claims under § 1983 are that the various defendants infringed Alex Messa's rights of due process and equal protection, and thereby infringed his own parental rights. Messa may not maintain any § 1983 claims against the Commonwealth of Pennsylvania, as states are not "persons" for purposes of 42 U.S.C. § 1983. See Will v. Michigan Dept. of State Police, 491 U.S. 58, 71, 105 L. Ed. 2d 45, 109 S. Ct. 2304 (1989). Moreover, to the extent that Messa's claims are challenges to the fact of Alex Messa's conviction, he may not bring them under § 1983. The instrument for bringing such a challenge is either a direct appeal (assuming that the time during which an appeal would be possible has not yet elapsed), a state post-conviction relief petition, or a petition in federal court for habeas corpus. See Preiser v. Rodriguez, 411 U.S. 475, 36 L. Ed. 2d 439, 93 S. Ct. 1827 (1973).

 Moreover, under the so-called "fugitive from justice" rule, the courts strongly disfavor § 1983 claims brought by fugitives from justice, particularly when they are based on facts intimately associated with the convictions that the plaintiffs are fleeing. See Ali v. Sims, 788 F.2d 954, 958-59 (3d Cir. 1986) (court of appeals (1) sets aside flawed verdict against defendant prison officials found by jury to have infringed inmate-plaintiff's due process rights in imposing prison discipline, but (2) instead of remanding for new trial, directs district court to dismiss plaintiff's claims with prejudice because plaintiff escaped from custody after first trial). In the case that is usually cited as the basis for this rule, Molinaro v. New Jersey, 396 U.S. 365, 365-66, 24 L. Ed. 2d 586, 90 S. Ct. 498 (1970), the Supreme Court dismissed a criminal appeal after the defendant's escape, finding that, although the appellant's fugitive status "does not strip the case of its character as an adjudicable case or controversy, we believe it disentitles the defendant to call upon the resources of the Court for determination of his claims." See id. at 365-66. *fn1"

  The "fugitive from justice" rule is ordinarily described as necessary to ensure respect for the court's procedures, see Ali, 788 F.2d at 959, to avoid expending scarce judicial resources on those who have declined to observe the rules established by the courts, see id., and to deter persons from becoming fugitives, see Griffin v. City of New York Correctional Commissioner, 882 F. Supp. 295, 297 (E.D.N.Y. 1995). Although this rule is ordinarily applied to cases brought by the fugitive himself or herself, the reasons underlying the rule appear to apply with equal force to actions brought by third parties seeking to assert the rights of a fugitive indirectly.

 As to Messa's § 1985 claims, Messa does not state a claim under 42 U.S.C. § 1985(2) or § 1985(3). Such claims require an allegation of conspiracy, which Messa does not make. They also require either (a) an allegation of certain specific forms of interference with the judicial process, or (b) a more general allegation of interference in combination with an allegation of invidiously discriminatory racial or class-based animus, see Messa v. Allstate, supra, at pp. 9-11, allegations that are absent from Messa's complaint. Because Messa's § 1985 claims must fail, so must his claims under 42 U.S.C. § 1986, which grants a cause of action against persons who know of an impending § 1985 violation and fail to prevent it. *fn2"

 Finally, Messa asserts state-law claims of breach of contract and of malpractice against Rubin and against his law firm, Perloff, Rubin & Associates. Messa alleges that he is a citizen of Pennsylvania. However, he does not allege the state citizenship of defendant Rubin, and, while he alleges that defendant Perloff, Rubin & Associates is licensed by the state of Pennsylvania and has places of business in Pennsylvania and New Jersey, he does not allege the state citizenships of the firm's partners, all of whose citizenships must be taken into account in determining whether diversity of citizenship exists. See Carden v. Arkoma Associates, 494 U.S. 185, 196-97, 108 L. Ed. 2d 157, 110 S. Ct. 1015 (1990). (Alternately, if Perloff, Rubin & Associates is a professional corporation, plaintiff does not allege its place of incorporation and principal place of business.) Thus, the court cannot determine whether there is diversity of citizenship sufficient to provide the federal courts with jurisdiction under 28 U.S.C. § 1332. Thus, this claim must be dismissed.

 ORDER

 For the reasons set forth in the memorandum filed herewith, it is ordered that leave to proceed forma pauperis is GRANTED, but that the complaint is DISMISSED under 28 U.S.C. § 1915 (d).

 Louis H. Pollak, J.

 August 16, 1995


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