The opinion of the court was delivered by: Judge Conner
This is a legal malpractice and civil rights lawsuit brought in forma pauperis by pro se plaintiff Mike Perez ("Perez") against defendants, attorney John J. Griffin and the Law Office of John J. Griffin (collectively "Griffin").*fn1 (See Docs. 1, 10.) Perez, an inmate housed by the Federal Bureau of Prisons, alleges that he retained Griffin to prosecute an action against prison officials for inadequate medical care. He contends that Griffin failed to do so and that this omissions constitutes legal malpractice, fraud, breach of contract and violation of Perez's civil rights. Griffin filed a motion for judgment on the pleadings*fn2 (Doc. 59), arguing that Perez's civil rights claim is not actionable because Griffin is not a state actor and that the malpractice, fraud, and contract claims fail because Perez has not provided a certificate of merit as required by the Pennsylvania Rules of Civil Procedure. For the reasons that follow, the motion will be granted.
I. Statement of Facts*fn3
In August 2003, Perez, then incarcerated at the Federal Correctional Institution, Schuylkill, suffered a severe asthma attack for which he alleges he received inadequate treatment. (See Doc. 1 ¶¶ 9-35 in No. 1:04-CV-1944 (M.D. Pa) [hereinafter "No. 04-1944"]).*fn4 Perez allegedly retained Griffin during July 2004 to pursue a claim against federal prison officials for the medical treatment administered during the incident. (Doc. 1 ¶ 4.) On September 1, 2004, Perez commenced the underlying suit pro se. (See Doc. 1 in No. 04-1944.) Griffin never entered an appearance in that matter. Griffin paid Perez on several visits during the following months to discuss legal matters associated with the case. (Doc. 1 ¶¶ 7, 9, 17.) The defendants filed a motion for summary judgment in early 2005, and Perez sent Griffin the summary judgment briefs and other documents to enable him to prepare a response. (Id. ¶¶ 10-11; Doc. 22 in No. 04-1944.) Griffin never opposed the motion, and the court extended the opposition period. (Doc. 1 ¶ 12-13; see also Docs. 28, 65, 96, 98 in No. 04-1944.) Perez contacted Griffin on several occasions and sent him additional documents, but Griffin remained unresponsive. (Doc. 1 ¶¶ 12-20.) Perez eventually prepared and filed opposition documents without Griffin's assistance. (Id. ¶ 21.) On November 7, 2006, the court entered summary judgment against Perez.*fn5 (Docs. 133, 134 in No. 04-1944.) Griffin allegedly continues to retain Perez's legal file containing the numerous documents that Perez sent to him. (Doc. 1 ¶ 22.)
Perez commenced the instant action on July 28, 2006 alleging that Griffin's actions constitute legal malpractice, breach of contract, and fraud. He also alleges that Griffin's retention of his documents hindered his prosecution of the underlying action, thereby violating his First Amendment right to petition the government for redress of grievances, his due process right of access to the courts, and his right to counsel. Griffin has filed a motion for judgment on the pleadings alleging that Perez's malpractice, fraud, and contract claims rest upon an alleged breach of Griffin's professional duties and require a certificate of merit pursuant to Rule 1042.3 of the Pennsylvania Rules of Civil Procedure. Perez has not filed a certificate, which Griffin contends requires dismissal of these claims. Griffin also alleges that he is not a state actor and therefore cannot be held liable for the alleged constitutional violations. The parties have fully briefed these issues, which are now ripe for disposition.
A motion for judgment on the pleadings is a procedural hybrid of a motion to dismiss and a motion for summary judgment. Rule 12(c) of the Federal Rules of Civil Procedure provides: "After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings." FED. R. CIV. P. 12(c). To succeed on a motion under Rule 12(c), "the movant [must] clearly establish that no material issue of fact remains to be resolved and that he is entitled to judgment as a matter of law." Hayes v. Cmty. Gen. Osteopathic Hosp., 940 F.2d 54, 56 (3d Cir. 1991); see also 5A CHARLES A. WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 1368, at 519 (2d ed.1990). When deciding a motion for judgment on the pleadings, the court is directed to view "the facts presented in the pleadings and the inferences to be drawn therefrom in the light most favorable to the nonmoving party." Hayes, 940 F.2d at 56.
Perez seeks recovery for alleged acts of legal malpractice, fraud, and breach of contract by Griffin. He also seeks recovery under 42 U.S.C. § 1983 for deprivation of his constitutional rights. The court will address these issues seriatim.
Perez advances a legal malpractice claim against Griffin based upon Griffin's alleged failure to file summary judgment documents and upon his retention of Perez's legal file. Under Pennsylvania law, a legal malpractice action requires the plaintiff to establish that: (1) the plaintiff employed the attorney or that another basis for a duty exists between the two, (2) the attorney failed to "exercise ordinary skill and knowledge" when handling the plaintiff's matter, and (3) the negligence of the attorney proximately caused the plaintiff's injury. Nat'l Grange Mut. Ins. Co. v. Goldstein, Heslop, Steel, Clapper, Oswalt & Stoehr, 142 F. App'x 117, 120 (3d Cir. 2005) (citing Kituskie v. Corbman, 714 A.2d 1027, 1029 (Pa. 1998)). Rule 1042.3 of the Pennsylvania Rules of Civil Procedure further requires that a plaintiff alleging a breach of a professional duty produce a certificate of merit attesting to the colorable merit of the plaintiff's claim. The rule provides, in pertinent part:
(a) In any action based upon an allegation that a licensed professional deviated from an acceptable professional standard, the attorney for the plaintiff, or the plaintiff if not represented, shall file with the complaint or within sixty days after the filing of the complaint, a certificate of merit signed by the attorney or party that either (1) an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm, or*fn6
(3) expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim.
(d) The court, upon good cause shown, shall extend the time for filing a certificate of merit for a period not to exceed sixty days. The motion to extend the time for filing a certificate of merit must be filed on or before ...