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Hector Roche-Moreno v. George H. Matangos

March 8, 2012

HECTOR ROCHE-MORENO, PLAINTIFF
v.
GEORGE H. MATANGOS, ESQ., ET AL., DEFENDANTS



The opinion of the court was delivered by: Thomas M. Blewitt United States Magistrate Judge

(Judge Jones)

(Magistrate Judge Blewitt)

REPORT AND RECOMMENDATION

I. Background.

On February 21, 2011, Plaintiff, Hector Roche-Moreno, an inmate at the Federal Correctional Institution at Fort Dix ("FCI-Fort Dix"), Fort Dix, New Jersey, filed, pro se, the instant civil rights action, pursuant to 42 U.S.C. §1983. (Doc. 1). Plaintiff states that he is raising constitutional claims, under 42 U.S.C. § 1983, against his defense counsel and his defense counsel's law firm which he retained to represent him in his federal criminal case, United States v. Hector Roche-Moreno, 07-CR-00191, M.D. Pa. (J. Conner).*fn1 Specifically, Plaintiff names as Defendants George H. Matangos, Esq., William Costopoulos, Esq.*fn2 , David Foster, Esq., and Leslie Fields, Esq.

All Defendants were employed by the Law Firm of Costopoulos, Foster & Fields, 831 Market Street, Lemoyne, Pennsylvania. In addition to his form civil rights Complaint, Plaintiff filed a 2 1/2 -page handwritten Statement of Facts and Exhibits. (Docs. 4 and 5).

Further, Plaintiff filed an in forma pauperis motion. (Doc. 2). Plaintiff indicates that he is presently employed in the prison, and that he earns $12.40 per month. He did not attach a copy of his Inmate Account to his in forma pauperis motion.

Plaintiff states that after he was charged with federal criminal offenses in this Court, in the case of United States v. Hector Roche-Moreno, 07-CR-00191, M.D. Pa., he paid a retainer and hired Defendants George H. Matangos, Esq., and the Law Firm of Costopoulos, Foster & Fields to properly represent him. However, Plaintiff avers that "Attorney George H. Matangos, lied and made promises unfilled to deceive my family and myself out of money, [and he] was discriminating because my family is Dominican. The Law Firm of Costopoulos, Foster & Fields allowed these practices." (Doc. 1, p. 3). Plaintiff indicates that he complained about Attorney George H. Matangos and his Law Firm of Costopoulos, Foster & Fields to Judge Conner and to his court-appointed attorneys from the Federal Public Defender's Office. Plaintiff's Exhibit C filed with his Complaint is a copy of a letter he wrote from prison to his court-appointed attorney in his Middle District of Pennsylvania criminal case, Attorney Lori J. Ulrich of the Federal Public Defender's Office dated "12-10-2012" (sic), in which he stated that he was initiating an investigation into his former defense counsel Attorney George H. Matangos "for his unprofessional conduct, especially towards his broken promises made to my family and myself. Just to deceitfully obtain $10,000.00 from my family, which created a tremendous amount of financial hardship on my family." (Doc. 5, Ex. C).

In his letter, Plaintiff appeared to inform Attorney Ulrich that since he informed her about Attorney George H. Matangos' allegedly "broken promises" and how Matangos deceived him and his family, he was going to use her as a witness for his complaint he was filing against Matangos and his law firm with the Pennsylvania Supreme Court Disciplinary Board.

As his Exhibit D, Doc. 5, Plaintiff submitted a portion of the transcript of his June 26, 2008 sentencing hearing in his criminal case before Judge Conner, United States v. Hector Roche-Moreno, 07-CR-00191, M.D. Pa., in which he complained to Judge Conner that his family paid Attorney Matangos $10,000 to represent him and that Matangos did nothing for him. Plaintiff told Judge Conner that despite the fact that he "dropped" Matangos as his defense counsel, and despite the fact that Matangos did not do any work for him, Matangos did not return his $10,000. Judge Conner advised Plaintiff that it was a private matter between him and his former defense counsel, that it was not part of his criminal proceeding, and that Plaintiff should proceed with his claim against his former defense counsel in a separate proceeding.

As Exhibit E, Doc. 5, Plaintiff submitted a copy of the June 15, 2007 Fee Agreement he had with Attorney Matangos and his Law Firm of Costopoulos, Foster & Fields to represent Plaintiff with respect to his pending federal drug charges filed against him in United States v. Hector RocheMoreno, 07-CR-00191, M.D. Pa. The cost of legal services to defend Plaintiff in the criminal case was $10,000 to $15,000, and Plaintiff's girlfriend, Leidy Soto, paid $8,000 on the date the Agreement was signed.

Finally, Plaintiff submitted the December 6, 2011 Affidavit of his girlfriend, Leidy Soto, in which she avers that she paid $10,000 which she received from Plaintiff's family to Attorney Matangos to represent Plaintiff in the criminal case of United States v. Hector Roche-Moreno, 07-CR-00191, M.D. Pa. She also avers that Attorney Matangos advised her that "if [Plaintiff's] family paid in full ($15,000) he can assure [Plaintiff ] would receive a sentence between 3 to 5 years No More." Further, Soto avers that "after paying $10,000.00 down, Attorney George H. Matangos would refuse to accept anymore phone calls from me."*fn3

In his Statement of Facts, Doc. 4, Plaintiff states that Attorney George H. Matangos' practices were intentional to extort money from he and his family, and that he did not receive proper representation from Matangos, in violation of his Sixth Amendment and Fourteenth Amendment rights. Plaintiff also states that Attorney Matangos' Law Firm of Costopoulos, Foster & Fields is responsible for the practices of Matangos which have violated his constitutional rights and deprived he and his family of their money, since they were Dominicans and naive. Further, Plaintiff states that when he discharged Attorney Matangos from representing him in his criminal case, Matangos made promises of refunding a major portion of the retainer money Plaintiff's family paid Matangos, but Matangos never repaid any of the money.

As relief in his Complaint, Plaintiff requests as follows:

Mental anguish (self and family) $50,000.00. Hold Attorney George H. Matangos accountable for the intentional actions to violate my Sixth and Fourteenth Amendment. To hold, Costopoul[o]s, Foster & Fields Law Firm accountable for allowing the practices, policies, rules in effect to violate anyone's constitutional rights. Plaintiff (and family) should be compensated for the mental anguish encount[er]ed by Defendant's wrongful actions. Jurisdiction required: 18 U.S.C. § 241, 242, 28 U.S.C. § 1343, 42 U.S.C. § 1985. (Doc. 1, p. 5).

Plaintiff seeks, in part, to invoke this Court's jurisdiction over his action under 28 U.S.C. §1331. However, to the extent Plaintiff seeks to invoke criminal charges against Defendants under 18 U.S.C. §241, conspiracy against rights, and § 242, deprivation of rights under color of law, it is well-settled that he cannot do so in a civil rights action.*fn4 Further, Plaintiff appears to indicate that, in addition to his Sixth Amendment and Fourteenth Amendment constitutional claims brought under §1983, he is raising a claim against Defendants under §1985, seemingly subsection 3.

We now screen Plaintiff's Complaint and find that it should be dismissed with prejudice since Defendants are neither state actors nor federal actors. Thus, Plaintiff cannot maintain this civil rights action under §1983 or §1331. We do not find that Plaintiff's action is based on federal question, 28 U.S.C. § 1331, and we do not find that this Court has subject matter jurisdiction over this case.*fn5

We now screen Plaintiff's pleading as we are obliged to do under the PLRA.*fn6 See AbdulAkbar v. McKelvie, 239 F. 3d 307, 314 (3d Cir. 2001); Banks v. County of Allegheny, 568 F.Supp.2d 579, 589 (W.D. Pa. 2008).

II. PLRA.

As stated, the Plaintiff has filed an application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (Doc. 2). The Prison Litigation Reform Act of 1995,*fn7 (the "PLRA"), obligates the Court to engage in a screening process when a prisoner wishes to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.*fn8 Specifically, Section 1915(e)(2), which was created by § 805(a)(5) of the Act, provides:

(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, 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.

III. Section 1983 Standard.

In a § 1983 civil rights action, the Plaintiff must prove the following two essential elements:

(1) that the conduct complained of was committed by a person acting under color of state law; and (2) that the conduct complained of deprived the Plaintiff of rights, privileges or immunities secured by the law or the Constitution of the United States. Parratt v. Taylor, 451 U.S. 527 (1981); Kost v. Kozakiewicz, 1 F.3d 176');">1 F. 3d 176, 184 (3d Cir. 1993); Beattie v. Dept. of Corrections SCI-Mahanoy, 2009 WL 533051, *3 (M.D. Pa.). Further, Section 1983 is not a source of substantive rights. Rather, it is a means to redress violations of federal law by state actors. Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002).*fn9 See also Holocheck v. Luzerne County Head Start, Inc., 385 F. Supp. 2d 491, 498-499 (M. D. Pa. 2005); Phillips v. Miller, 2010 WL 771793, *2 (M.D. Pa.).

It is well established that personal liability under section 1983 cannot be imposed upon a state official based on a theory of respondeat superior. See, e.g., Rizzo v. Goode, 423 U.S. 362 (1976); Hampton v. Holmesburg Prison Officials, 1546 F.2d 1077, 1082 (3d Cir. 1976); Parratt, supra. It is also well settled in the Third Circuit that personal involvement of defendants in alleged constitutional deprivations is a requirement in a § 1983 case and that a complaint must allege such personal involvement. Id. Each named defendant must be shown, through the complaint's allegations, to have been personally involved in the events or occurrences upon which Plaintiff's claims are based. Id. As the Court stated in Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1998):

A defendant in a civil rights action must have personal involvement in the alleged wrongs . . . . [P]ersonal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence. Allegations of participation or actual knowledge and acquiescence, however, must be made with appropriate particularity. (Citations omitted).

See also Beattie v. Dept. of Corrections SCI-Mahanoy, 2009 WL 533051,*3("a prerequisite for a viable civil rights claim is that a Defendant directed, or knew of and acquiesced in, the deprivation of a ...


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