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Griffey v. Colechia

January 28, 2008

ADAM GRIFFEY, PLAINTIFF
v.
DAVID COLECHIA, ATTORNEY, DEFENDANT



The opinion of the court was delivered by: Hay, Magistrate Judge

OPINION

Adam Griffey ("Plaintiff"), at the time of filing this civil rights action, was a federal prisoner incarcerated in the United States Penitentiary at Big Sandy.*fn1 He seeks, under the Civil Rights Act, 42 U.S.C § 1983, to sue his defense attorney in a criminal case for actions taken by that attorney on November 19, 1999. Dkt. [5] at 2. Because he seeks to sue his defense attorney, under Section 1983 of the Civil Rights Act, and a defense attorney does not act under color of state law, the case is properly dismissed for failure to state a claim.

Relevant Facts and Procedural History

According to the complaint, Plaintiff's Sixth Amendment right to effective assistance of counsel was violated by Defendant Colecchia, Plaintiff's defense attorney. The complaint against Attorney Colecchia alleges inter alia:

David Colecchia failed in his duties to file for [a] motion for psychic [sic] evaluation or motions to dismiss on the grounds I was arrested illegally. Mr. Colecchia never informed me of having the right to get a psychic [sic] eval. If he did he would have seen that I was previously locked up 90 days as a child for evaluation and through the courts had to have counseling in Monessen, Pa. Through CYS, Washington, Pa. He never asked nor told me this. Never filed motions to get one [i.e., a psychiatric evaluation] done. I'm now diagnossed [sic]

ADHD -- Bi-polar and Chronic paranoid schzoprhrenic [sic]. CinnCinn. Oh. Federal [authorities] did an eval. 2004.

Dkt. [5] at 2 to 3. Plaintiff also alleged that "defense counsel utterly failed to investigate any psychiatric basis for Adam Griffey's behavior." Dkt [5] at 4. Plaintiff also complained that Attorney Colecchia failed to investigate and/or adduce any evidence of mitigation for purposes of sentencing. Id., at 5. Lastly, Plaintiff also complains that Attorney Colecchia failed to file a motion to dismiss "on the grounds of my Fourth Amendment being violated." Id., at 8. Plaintiff alleges that the date on which Attorney Colecchia allegedly violated his Sixth Amendment rights was November 19, 1999, which the Court takes judicial notice of was the very date Plaintiff's guilty plea was accepted by the Westmoreland County Court of Common Pleas.*fn2 By way of relief, Plaintiff seeks to have Attorney Colecchia "pay for his misconduct and pay $13, 000,000.00 compensatory and punitive damages" Id. at 3, ¶ VI.

Plaintiff was granted his request to proceed in forma pauperis, Dkt. [3] and the complaint was filed. Dkt. [5].*fn3 In accordance with the provisions of 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73, Plaintiff consented to have a United States magistrate judge conduct all proceedings in this case, including the entry of a final judgment. See Dkt. [8].

Applicable Legal Principles

In the Prison Litigation Reform Act ("PLRA"), Pub. L. No. 104-134, 110 Stat. 1321 (1996), Congress adopted major changes affecting civil rights actions brought by prisoners in an effort to curb the increasing number of oftentimes frivolous and harassing law suits brought by persons in custody. See Santana v. United States, 98 F.3d 752, 755 (3d Cir. 1996). The PLRA significantly amended the statutory provisions with respect to actions brought by prisoners who are proceeding in forma pauperis. The amended version of the statute now reads that "[n]otwithstanding any filing fee, or any portion thereof, that may have been paid [by a prisoner granted IFP status], the court shall dismiss the case at any time if the court determines that-- (A) the allegation of poverty is untrue; or (B) the action or appeal-- (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). Here, Plaintiff has been granted IFP status, Dkt. [6], and is a prisoner within the meaning of 28 U.S.C. § 1915.*fn4 Thus, Section 1915(e)(2) is applicable herein. Moreover, not only is a court permitted to sua sponte dismiss a complaint which fails to state a claim, but it is required to do so by the mandatory language of "the court shall dismiss" utilized by Section 1915(e). See, e.g., Keener v. Pennsylvania Board of Probation and Parole, 128 F.3d 143, 145 n.2 (3d Cir. 1997) (describing 28 U.S.C. § 1915(e)(2)(B) as "the PLRA provision mandating sua sponte dismissal of in forma pauperis actions that are frivolous or fail to state a claim."); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000)("It is also clear that section 1915(e) not only permits but requires a district court to dismiss an in forma pauperis complaint that fails to state a claim.").

In performing a court's mandated function of sua sponte reviewing complaints under 28 U.S.C. § 1915(e) to determine if they fail to state a claim upon which relief can be granted, a federal district court applies the same standard applied to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6). See, e.g., Powell v. Hoover, 956 F. Supp. 564, 568 (M.D. Pa. 1997) (applying Rule 12(b)(6) standard to claim dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii)); Tucker v. Angelone, 954 F. Supp. 134, 135 (E.D. Va.) ("Under 28 U.S.C. §§ 1915A, 1915(e) and 42 U.S.C. § 1997e(c) the courts are directed to dismiss any claims made by inmates that 'fail to state a claim upon which relief could be granted'. This is the familiar standard for a motion to dismiss under Fed.R.Civ.P. 12(b)(6)."), aff'd, 116 F.3d 473 (Table) (4th Cir. 1997).

In reviewing a motion to dismiss under Rule 12(b)(6), all well pleaded allegations of the complaint must be accepted as true and viewed in a light most favorable to the non-movant. Brader v. Allegheny General Hospital, 64 F.3d 869, 873 (3d Cir. 1995); Scrob v. Patterson, 948 F.2d 1402, 1405 (3d Cir. 1991). Although the plaintiff need not provide detailed factual allegations to support the claims set forth in the complaint, "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic v. Twombly, ___ U.S. ___, ___, 127 S.Ct. 1955, 1964-65 (2007), quoting Conley v. Gibson, 355 U.S. 41, 47 (1957). See Fed. R. Civ. P. 8(a)(2). Rather, a plaintiff must provide "enough facts to state a claim to relief that is plausible on its face" so as "to raise a right to relief above the speculative level." Id. at 1965, 1974. See 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-36 (3d ed. 2004) ("[T]he pleading must contain something more ... than ... a statement of facts that merely creates a suspicion [of] a legally cognizable right of action"). The issue, however, is not whether the plaintiff will prevail in the end but only whether he should be entitled to offer evidence in support of his claim. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

Because under Rule 12(b)(6), courts may consider, in addition to the complaint, matters of public record and other matters of which a court may take judicial notice, Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1385 n.2 (3d Cir. 1994), and because the standards for dismissal for failing to state a claim under 28 U.S.C. § 1915(e) are the same as under a 12(b)(6) motion, the court may, in performing its screening under 28 U.S.C. § 1915(e), consider matters of which it may take judicial notice. See, e.g., Lloyd v. United States, No. 99 C 3347, 1999 WL 759375, at *1 (N.D. Ill. Sept. 3, 1999) ("As the court may take judicial notice of public records without converting a motion to dismiss to a motion for summary judgment, Henson v. CSC Credit Services, 29 F.3d 280, 284 (7th Cir. 1994), the court will take judicial notice of court records in conducting its initial review under § 1915A.").

Furthermore, because Plaintiff is pro se, courts accord an even more liberal reading of the complaint, employing less stringent standards when considering pro se pleadings than when judging the work product ...


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