United States District Court, Eastern District of Pennsylvania
April 11, 2002
ROBERT DAVIS, PLAINTIFF,
PHILADELPHIA COUNTY, ET. AL., DEFENDANTS.
The opinion of the court was delivered by: Joyner, J.
MEMORANDUM AND ORDER
Presently before the Court is the Motion to Proceed In Forma Pauperis
of Plaintiff Robert Davis ("Plaintiff" or "Davis"). For the reasons that
follow, the Court will grant Plaintiff's Motion to Proceed In Forma
Pauperis, but will dismiss his complaint.
• In Forma Pauperis
Plaintiff seeks to proceed in forma pauperis in this action. It appears
to the Court that Plaintiff cannot afford to pay the filing fees to
initiate this action, thus, the Court grants Plaintiff leave to proceed
in forma pauperis. See 28 U.S.C. § 1915. However, the Court directs
that the complaint be dismissed prior to service.
This Court has the power to sua sponte dismiss this case "at any time
if the court determines that . . . (B) the action . . . (i) is frivolous
or malicious; (ii) fails to state a claim on which relief may be
granted; or (iii) seeks monetary relief against a defendant who is immune
from such relief." 28 U.S.C. § 1915(e)(2)(B)(i), (ii), and (iii). An
action is frivolous if it "lacks an arguable basis in either fact or
law." See Green v. Seymour, 59 F.3d 1073, 1077 (10th Cir. 1995) (quoting
Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1832 (1989)).
Moreover, "[d]ismissal under § 1915(e) is appropriate both when the
action is `based on an indisputably meritless legal theory' and when it
posits `factual contentions [that] are clearly baseless.'" Rankine v.
Server, No. CIV.A. 01-0653, 2001 WL 322517, *1 (E.D.Pa. Feb. 13, 2001)
(quoting Neitzke, 490 U.S. at 327)).
• Plaintiff's Complaint
Plaintiff's complaint names as defendants the following: Philadelphia
County, et. al.; Philadelphia Court Appointed Attorneys, et. al.;
Judges, et. al.; Clerk of Judicial Records, et. al.; D.A. Office(s), et.
al.; and Pathologist in Forensic Pathology, et. al. Plaintiff does not
identify who the "et. al." after each general category is meant to
The complaint purports to sue the above mentioned parties for alleged
violations of Plaintiff's Constitutional Rights. The constitutional
violations of which Plaintiff complains all stem from his underlying
state court conviction and his post-conviction representation. He
summarizes the violations as follows:
layered ineffectiveness of several court-appointed
lawyers, hybrid representation, failure to provide
reasonable (any) accommodation of a disability
(Attention Deficit Disorder), failure to perfect a
court-ordered direct appeal, failure to perfect an
Ordered Nunc-pro-tunc Direct Appeal, and failure of
the court to provide a complete and current set of
Notes of Testimony as well as other documents that
would allow for an informed appeal process. Most
currently, court-appointed counsel failed to meet the
mandates of Turner and Finley, failed to verify
Exculpatory Issues. Current counsel
lied to the court, altered and misrepresented court
documents, failed to communicate and investigate
issues expressly mandated by the petitioner in the
one-sided flow of information to counsel from
Plaintiff's Compl. at pg. 1.
Plaintiff also complains that his sentence should be vacated and that
there should be an evidentiary hearing to determine the impact of his
Attention Deficit Disorder on his trial.*fn1 Plaintiff requests that
this Court "expeditiously act upon this memorandum by either rendering an
appropriate judgment or immediately refering [sic] the case to an
appropriate court or agency to investigate and resolve the injustices in
the failure of the court to serve the petitioner."*fn2 Id. at pg. 3.
• Plaintiff's Claims Against the Judicial Defendants
Plaintiff argues that Judge Richette violated his constitutional rights
by communicating with Plaintiff directly while Plaintiff was being
represented by various court-appointed counsel (what Plaintiff calls
"hybrid representation"); by not monitoring and expecting reasonable
performance from Plaintiff's court-appointed counsel; by not holding
court-appointed counsel responsible; and by issuing conflicting orders.
Plaintiff's allegations against Judge Richette lack an arguable basis
in law because Judge Richette enjoys absolute judicial immunity for the
actions of which Plaintiff complains. Judges are entitled to absolute
judicial immunity from suit for actions arising from judicial acts which
were undertaken with jurisdiction. See Gallas v. Supreme Court of
Pennsylvania, 211 F.3d 760, 768 (3d Cir. 2000). The actions for which
Plaintiff seeks to hold Judge Richette accountable are, by Plaintiff's
own admission, actions she took in her official capacity as Judge in an
underlying criminal proceeding. Plaintiff complains that Judge Richette
issued conflicting orders and that she allowed him to file things pro se
while also accepting filings from his court-appointed counsel. These
actions were clearly undertaken in Judge Richette's official capacity,
and, thus, Judge Richette has absolute judicial immunity from any suit
arising from the actions of which Plaintiff complains. Therefore,
Plaintiff's claims against her lack an arguable basis in law and will be
Likewise, to the extent Plaintiff attempts to bring a claim against the
"Clerk of Judicial Records," as named in the caption, that claim would
also be barred because judicial or quasi-judicial immunity applies to
court staff who are acting in their official capacities. See Marcedes v.
Barrett, 453 F.2d 391, 391 (3d Cir. 1971) (holding that judicial or
quasi-judicial immunity applied to clerk of courts, a supervisor on the
staff of the clerk of courts, an administrative assistant to the
president judge, and a court reporter). Thus, Plaintiff lacks an arguable
basis in law for his claims against those defendants and those claims are
• Plaintiff's Claims Against Court-Appointed Counsel
Plaintiff also complains about the conduct of his various
court-appointed counsel.*fn3 Plaintiff argues that these attorneys
failed to perfect his appeals, lied to the court, failed to investigate
his case, and failed to communicate with him. However, Plaintiff cannot
maintain a § 1983 claim against these attorneys because a
court-appointed defense attorney does not qualify as a state actor for
§ 1983 purposes. See Hull v. Mallon, No. CIV.A. 00-5698, 2001 WL
964109, *1 (E.D.Pa. Aug. 21, 2001) (court appointed counsel not state
actor for § 1983 purposes)(citing Polk County v. Dodson, 454 U.S. 312,
325, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981) (other citations omitted));
see also Ortiz v. Greenlee, No. CIV.A. 96-7126, 1997 WL 327369, * 2
(E.D.Pa. April 28, 1997) (same). Thus, Plaintiff's claims against the
court-appointed lawyers lacks an arguable basis in law and will be
• Plaintiff's Claims Against the District Attorneys' Office
Plaintiff does not make any specific factual allegations against the
District Attorneys' office even though it is named in the caption.
However, to the extent Plaintiff attempts to bring any claims against the
District Attorneys' office for their work in initiating the prosecution
and handling the prosecution as well as participating in the
post-conviction proceedings, those claims would be barred as well. See
Ortiz, 1997 WL 327369, at *3 ("'in initiating a prosecution and in
presenting the State's case, the prosecutor is immune from a civil suit
for damages under § 1983'")(quoting Imbler v. Pachtman, 424 U.S. 409,
430, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976)). Thus, Plaintiff lacks an
arguable basis in law for his claims against the District Attorneys'
office, and those claims are dismissed as well.
• Plaintiff's Claims Against the Pathologist
Finally, Plaintiff names the general category "Pathologist in Forensic
Pathology" in the caption. However, Plaintiff does not make any factual
allegations in the complaint that address any pathologists. Thus, those
claims will be dismissed.
An appropriate Order follows.
AND NOW, this day of April, 2002, upon consideration of the Plaintiff's
Motion to Proceed In Forma Pauperis and it appearing to the Court that
Plaintiff cannot afford to pay the required fees, it is hereby ORDERED
that the Motion is GRANTED.
However, Plaintiff's Complaint is hereby DISMISSED pursuant to
28 U.S.C. § 1915(e)(2)(B).