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Arman G. Shirazi v. Nanda Palissery

April 29, 2011


The opinion of the court was delivered by: (judge Caputo)



Presently before the Court is Magistrate Judge Blewitt's Report and Recommendation ("R & R") of January 31, 2011 (Doc. 6), Plaintiff's objections (Doc. 8), and a motion for leave to proceed in forma pauperis (Doc. 2). Magistrate Judge Blewitt recommended that Plaintiff's motion to proceed in forma pauperis be granted solely for the purpose of filing this action but that Plaintiff's claims be dismissed against all three Defendants for failure to state a claim, lack of subject-matter jurisdiction, and on preclusion grounds. This Court will adopt Magistrate Judge Blewitt's R & R and dismiss Plaintiff's complaint with prejudice for the reasons discussed more fully below.


Plaintiff, an inmate of SCI-Frackville, Frackville, Pennsylvania, filed a pro se civil rights action pursuant to 42 U.S.C. § 1983 alleging the following.

Plaintiff was charged with a homicide in May 2007 in the Court of Common Pleas of Philadelphia County, and retained Defendants to defend him, namely Attorney Nanda Palissery and Attorney Demetrius Fannick, both employed by the Palissery Law Firm. Plaintiff signed a General Fee Agreement ("GFA") in which he agreed to pay Defendants a fifty-thousand dollar ($50,000) retainer to represent him with respect to the criminal homicide charge against him. The GFA was vague and did not specify an hourly rate or how fees were earned. By May 13, 2007, Plaintiff had paid Defendants a total of twenty-five thousand eight-hundred dollars ($25,800) and on June 4, 2007, Plaintiff terminated Defendants as his counsel before they had entered an appearance in his case or acted on his behalf. After terminating the Defendants, Plaintiff requested that they refund his money and provide him with an accounting of any services rendered. Defendants refused both requests. In July 2008, Plaintiff filed a claim for breach of contract against the Defendants in the Court of Common Pleas of Philadelphia County which was eventually dismissed.

In the instant suit, Plaintiff's complaint raises a § 1983 claim as well as a breach of contract claim he previously litigated and lost in state court. Plaintiff seeks a declaration that the GFA was invalid as well as compensatory damages in the amount of twenty-five thousand eight-hundred dollars ($25,800), the amount of legal fees paid to Defendants.

After filing his pro se Compliant, Plaintiff filed to proceed in forma pauperis. (Doc. 2.) As a result, the Magistrate Judge screened Plaintiff's Complaint under 28 U.S.C. § 1915(e), which requires a complaint filed in forma pauperis be dismissed if it fails to state a claim on which relief may be granted. 28 U.S.C. § 1915(e)(2)(B).

Applying the standard of Federal Rules of Civil Procedure 12(b)(6) and the pleading requirement of Fed. R. Civ. P. 8(a) to Plaintiff's Complaint, the Magistrate Judge found that Plaintiff failed to adequately plead a § 1983 claim since Plaintiff failed to state which of his constitutional rights were violated and how attorneys at a private firm were "state actors." The Magistrate Judge further found that, even assuming Plaintiff had established a "federal question," the Court was prohibited from exercising subject-matter jurisdiction under the Rooker-Feldman doctrine, as Plaintiff was essentially attempting to get a federal court to overturn a state court adjudication. Finally, the Magistrate Judge also found that Pennsylvania's issue and claim preclusion doctrines prohibited Plaintiff from bringing the instant suit in federal court. However, the Magistrate Judge recommended that Plaintiff be allowed to proceed in forma pauperis solely for purposes of filing the action.

Plaintiff then filed his objections to the R&R on February 12, 2011. (Doc. 8.)


I. Objections to the Magistrate Judge's Report

Where objections to the magistrate judge's report are filed, the Court must conduct a de novo review of the contested portions of the report, Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989) (citing 28 U.S.C. § 636(b)(1)(c), provided the objections are both timely and specific, Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir. 1984). In making its de novo review, the Court may accept, reject, or modify, in whole or in part, the factual findings or legal conclusions of the magistrate judge. See 28 U.S.C. § 636(b)(1); Owens v. Beard, 829 F. Supp. 736, 738 (M.D. Pa. 1993). Although the review is de novo, the statute permits the Court to rely on the recommendations of the magistrate judge to the extent it deems proper. See United States v. Raddatz, 447 U.S. 667, 675-76 (1980); Goney, 749 F.2d at 7; Ball v. United States Parole Comm'n, 849 F. Supp. 328, 330 (M.D. Pa. 1994). Uncontested portions of the report may be reviewed at a standard determined by the ...

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