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Miskovitch v. Walsh

September 22, 2009


The opinion of the court was delivered by: Lisa Pupo Lenihan United States Magistrate Judge

Magistrate Judge Lisa Pupo Lenihan


Plaintiff Eric M. Miskovich ("Plaintiff"), filed this law suit against Defendant James J. Walsh ("Defendant"), pursuant to the Civil Rights Act of 1871, 42 U.S.C. § 1983. Plaintiff alleges that Defendant, who is Plaintiff's court-appointed attorney*fn1 in a criminal matter in State court, violated Plaintiff's rights under the Sixth and Eighth Amendments to the United States Constitution by "conspir[ing] with state officials to deny [him] of bail. . ."*fn2 See Am. Compl. (Doc. No 8), at 4. Defendant filed a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Def.'s Mot. to Dismiss (Doc. No. 12), at ¶ 22. For the reasons stated below, this Court will dismiss Plaintiff's complaint without prejudice. Plaintiff will be given twenty days in which to amend his complaint. Failure to do so will result in the dismissal of this suit with prejudice. In the event of amendment, Defendant will be given twenty days from the date of the amended complaint in which to re-file a motion to dismiss, at his discretion.


Plaintiff, an inmate at Allegheny County Jail in Pittsburgh, Pennsylvania ("ACJ"), filed this suit pro se on October 20, 2008. Plaintiff was granted permission to proceed in forma pauperis on October 27, 2008. See Doc. No. 2. Plaintiff filed an amended complaint with this Court on November 6, 2008. Defendant, also appearing pro se, filed a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure on January 9, 2009. See Def.'s Mot. to Dismiss (Doc. No. 12), at ¶ 22. Defendant failed to serve a copy of this motion on Plaintiff; however, a copy was served by this Court on February 11, 2009. Plaintiff timely responded to Defendant's motion on February 19, 2009. See Pl.'s Resp. to Def.'s Mot. to Dismiss (Doc. No. 15). Plaintiff consented to jurisdiction by a Magistrate Judge on October 27, 2008. See Doc. No. 5. Defendant consented to the same on April 29, 2009. See Doc. No. 17.

Plaintiff makes the following allegations in his complaint, as amended.*fn3 Defendant, in his capacity as Plaintiff's court-appointed criminal attorney, filed a motion in State court for nominal bond on Plaintiff's behalf. This motion was denied by a State court judge on August 27, 2008. See Doc. No. 15 at 4. Plaintiff, believing the denial to be improper, directed Defendant to appeal. Doc. No. 8 at 3. Defendant refused, allegedly stating that "'it's not appealable.'" Id. Plaintiff disagreed with this assessment, and alleges to have confronted Defendant with case law supporting his position, at which point Defendant stated "the Court only pays me after your case is over and frowns on pre-trial interlocutory appeals."*fn4 See id.; see also Doc. No. 15 at 4. Plaintiff and Defendant also discussed filing a petition for writ of Mandamus, but decided at an unspecified date that such a decision would be improper. See Doc. No. 15 at ¶¶ 3-5.

Plaintiff alleges that Defendant lied to him about the appealability of the denial of his motion for nominal bond. See Doc. No. 8 at 3. Plaintiff contends that Defendant was unwilling to appeal the denial of bond because the manner in which the Court of Common Pleas of Allegheny County compensates appointed defense counsel creates a disincentive for counsel to file pretrial appeals or motions. See id. at 3-4. This is because appointed defense counsel is typically not paid until after the conclusion of a criminal case. See id. at 3; see also Doc. No. 12 at ¶ 11. Furthermore, Plaintiff alleges that it is common practice for judges in that court to "cut" attorney and expert witness fees by up to fifty percent, creating further disincentive for attorneys and expert witnesses to invest significant effort in the defense of indigent clients. See Doc. No. 8 at 3; see also Doc. No. 15 at 3-4. Plaintiff avers that the "cutting" of fees is practiced by various administrative judges, stating that "[a]t least (10) ten lawyers have explained to [him] how one judge 'cuts' an attorneys [sic] billable hours. . ." See Doc. No. 8 at 4. Plaintiff names Administrative Judge Donna Jo McDaniel in particular as one judge who engages in the practice.*fn5 See Doc. No. 15 at 3-4. Plaintiff also describes an instance where Judge David Cashman "cut" the fee of Plaintiff's expert witness in his criminal case by fifty percent, insinuating that the reason for the reduction was that Plaintiff chose to use an expert other than the one suggested to him by that court.*fn6 See Doc. No. 15 at 3. With respect to this incident, Plaintiff stats that "Defendant Walsh allowed me to lose my expert and was terrified to appeal or re-file for this expert." Id.

Plaintiff concludes that Defendant's knowing entry into a contract with such a payment structure creates so great a financial disincentive to advance one's client's interests in court that it constitutes a conspiracy with "various administrative judges" and other state officials to violate Plaintiff's rights under the Sixth Amendment to the United States Constitution. See Doc. No. 8 at 4. Furthermore, Plaintiff argues that any attorney who knowingly enters into this contract deprives his or her client of their right to counsel. See Doc. No. 15 at 5. Specifically, Plaintiff states that Defendant has "knowingly contracted with Allegheny County [Pennsylvania] in conspiratorial concert." Doc. No. 8 at 5. Plaintiff points to contact that Defendant has had with judges and other state officials in the normal course of his business as an attorney as evidence of this conspiracy. See Doc. No. 15 at 3.. Plaintiff also mentions a meeting between Defendant and Judge Cashman over drinks at a restaurant, during which Judge Cashman is alleged to have stated that most criminal defendants find either "'the Law or God.' while incarcerated." Id. Additionally, Plaintiff insinuates, but does not explicitly state, that the denial of permission for Defendant to withdraw from his criminal case after the suit sub judice was filed is evidence of the existence of a conspiracy against him. See Doc. No. 9 at 1.

Plaintiff seeks three forms of relief from this Court. First, Plaintiff asks this Court to "[d]eclare there is a difference between 'counsel' and a 'lawyer'. . ." Second, Plaintiff requests this Court to direct that he receive counsel. Third, Plaintiff requests this Court to "[d]eclare Alleg[heny] Co[unty] policy on attorney payment [and] compensation creates divergent financial interests [and] compromises the veracity of attorney representation [and] essentially creates a conspiracy to sell-out clients." See Doc. No. 8 at 5.


When adjudicating a 12(b)(6) motion, a court must dismiss a complaint that does not allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). This is not to say that the Supreme Court requires "heightened fact pleading of specifics . . ." Id. at 570. However, "factual allegations must be enough to raise a right to relief above the speculative level." Id. at 555. The Court has made it clear that the requirement that pleadings must be facially plausible, as expressed in Twombly, applies to all civil suits in the federal courts. See Ashcroft v. Iqbal, 129 S.Ct. 1937 (May 18, 2009).

A court must accept as true all allegations of the complaint, and all reasonable factual inferences must be viewed in the light most favorable to the Plaintiff. See Angelastro v. Prudential-Bache Sec, Inc., 764 F.2d 939, 944 (3d Cir. 1985). However, a court need not accept inferences drawn by the plaintiff if they are unsupported by the facts as set forth in the complaint. See California Pub. Employees' Ret. Sys. v. Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004). Nor must a court accept legal conclusions set forth as factual allegations. See Twombly, 550 U.S. at 555. Furthermore, it is not proper for the court to assume that "the [plaintiff] can prove facts which [he or she] has not alleged, or that the defendants have violated the . . . laws in ways that have not been alleged." Associated Gen. Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983).

The United States Court of Appeals for the Third Circuit has recently held that, when entertaining a motion to dismiss pursuant to Rule 12(b)(6), a district court should apply a two-part test in order to determine whether a pleading's recitation of facts is sufficient to survive the motion. See Fowler v. UPMC Shadyside, No. 07-4285, 2009 WL 2501662 (3d Cir. Aug. 18, 2009). "First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions." Id. at *5 (citing Iqbal, 129 S.Ct. 1949). "Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a "'plausible claim for relief.'" Fowler, 2009 WL 2501662, at *5 (quoting Iqbal, 129 S.Ct. 1950).

A court must employ less stringent standards when considering pro se pleadings than when judging the work product of an attorney. See Haines v. Kerner, 404 U.S. 519, 520 (1972). In a section 1983 action, the court must liberally construe a pro se litigant's pleadings and 'apply applicable law, irrespective of whether a pro se litigant has mentioned it by name.' Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (quoting Holley v. Dep't of Veteran Affairs, 165 F.3d 244, 247-48 (3d. Cir. 1999)). "Since this is a ยง 1983 action, the ...

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