The opinion of the court was delivered by: John E. Jones III United States District Judge
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
Pending before the Court are two Motions to Dismiss Plaintiff Charles Lucarelli's ("Plaintiff" or "Lucarelli") Complaint. First, pending before the Court is a Motion to Dismiss Plaintiff's Complaint (doc. 3) filed by Defendant Thomas M. Marsilio, Esquire ("Marsilio") on January 17, 2006. We also have before us a Motion to Dismiss Plaintiff's Complaint (doc. 16) filed by Defendants Gary Norton, District Attorney, and Tami Kline, Clerk of Courts ("Norton" and "Kline" respectively) on January 23, 2006. Finally, on January 31, 2006, Plaintiff filed a "Motion to Dismiss Defendant's Motion to Dismiss or in the Alternative Brief in Support of.*fn1 " (Rec. Doc. 8).
For the reasons that follow, Defendants' Motions will be granted and the case closed.
FACTUAL BACKGROUND/PROCEDURAL HISTORY
On January 9, 2006, Plaintiff filed the instant civil rights action in the United States District Court for the Middle District of Pennsylvania against Defendants arising out of a criminal proceeding involving Plaintiff in 2004. Plaintiff retained Defendant Marsilio to represent him in criminal charges that were filed against him in the Columbia County Court of Common Pleas. Plaintiff paid Defendant Marsilio a non-refundable retainer of $10,000 to represent him through a jury trial. The charges involved Plaintiff's alleged straying of a toxic and dangerous substance at another vehicle out of a tank in the trunk of his automobile. As the criminal charges proceeded to trial, Plaintiff indicated to Defendant Marsilio that he was unhappy with the quality of representation provided to him on the criminal charges and that his advice to accept the guilty plea was unsound. Plaintiff also refused to heed Defendant Marsilio's advice to hire a Toxic Substances Expert. Consequently, Defendant Marsilio filed a Motion to Withdraw as Counsel with the Columbia County Court of Common Pleas. Following a July 8, 2005 hearing at which Plaintiff was present and participated, the Motion was granted by the Columbia County Court of Common Pleas. Defendant Marsilio then ceased his involvement in representing Plaintiff and did not participate in the trial on the criminal charges at which Plaintiff was convicted of a felony or felonies.
Plaintiff subsequently filed a complaint with the fee dispute committee of the Luzerne County Law and Library Association which resulted in Plaintiff being awarded a $862.50 refund. On November 2, 2005, Plaintiff filed a complaint in the Luzerne County Court of Common Pleas alleging a breach of contract by Defendant Marsilio.
On January 9, 2006, Plaintiff filed the instant complaint in this Court. In the complaint, Plaintiff alleges that he was denied a fair trial pursuant to the Sixth Amendment of the United States Constitution and that the Commonwealth denied him an attorney, although he concedes that a "stand-by attorney" was available. (Compl. ¶¶ 1-6). Specifically, Plaintiff alleges that his complaint "revolves around an intentional, willful conspiracy by the Clerk of Courts, Tami Kline, and the Columbia County District Attorney, Gary Norton, in collusion with Attorney Thomas Marsilio to deny a United States citizen a fair and just trial that should be afforded to all citizens under the United States Constitution." Allegedly, Mr. Norton and Tami Kline manipulated the jury pool selection by moving Mr. Lucarelli up a half a day." Id. at ¶ 5. Moreover, while Plaintiff's main assertions appear to relate to his hiring of Defendant Marsilio to represent him in the criminal action and Defendant Marsilio's subsequent withdrawal as counsel, Plaintiff also asserts that Defendant Norton denied him a fair trial by conduct that occurred during the prosecution of the criminal charges against him. Such claims relate to Defendant Norton's actions at the preliminary hearing, at Defendant Marsilio's withdrawal hearing, and at the time of jury selection. Id. at ¶¶ 9-10, 15, 16-17. Plaintiff further alleges that the Clerk of Courts' Office changed the jury selection time to begin earlier in the day than Plaintiff expected for the alleged purpose of getting a better jury for Plaintiff's criminal trial. Id. at ¶¶ 16-17.
On January 17, 2006 and January 23, 2006, Defendant Marsilio and Defendants Norton and Kline respectively filed Motions to Dismiss Plaintiff's complaint. The Motions have been fully briefed and are therefore ripe for disposition.
In considering a motion to dismiss, a court must accept the veracity of a plaintiff's allegations. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also White v. Napoleon, 897 F.2d 103, 106 (3d Cir. 1990). In Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996), our Court of Appeals for the Third Circuit added that in considering a motion to dismiss based on a failure to state a claim argument, a court should "not inquire whether the plaintiffs will ultimately prevail, only whether they are entitled to offer evidence to support their claims." Furthermore, "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also District Council 47 v. Bradley, 795 F.2d 310 (3d Cir. 1986).
A. Motion to Dismiss filed by Defendant Marsilio
In the Motion, Defendant Marsilio argues that Plaintiff's complaint fails to state a claim upon which relief can be granted. Defendant Marsilio first asserts that he was not acting under color of state law as he was a private party, not a government official. "He [Defendant Marsilio] was privately retained by the Plaintiff to represent him in criminal charges. Defendant Marsilio thus challenges that the Plaintiff will be unable to establish that he was acting under color of state law." (Def. Marsilio's Br. Supp. Mot. Dismiss at 5). Defendant Marsilio then contends that even if Plaintiff is able to ...