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Hector Roche-Moreno v. George H. Matangos

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA


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 Plaintiff's constitutional rights."), citing Rode, supra.

IV. Bivens Standard.

A Bivens civil rights action under § 1331 has the same standards as does a § 1983 civil rights action. In Naranjo v. Martinez, 2009 WL 4268598, *6 (M.D. Pa.), the Court stated:

Bivens creates no substantive rights, but rather allows "a citizen suffering a compensable injury to a constitutionally protected interest [to] invoke the general federal-question jurisdiction of the district court to obtain an award of monetary damages against the responsible federal official." Butz v. Economou, 438 U.S. 478, 504, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). A civil rights claim brought under Bivens is the federal counterpart to an action brought under 42 U.S.C. § 1983, and the same legal principles governing a § 1983 claim apply to a Bivens claim. Brown v. Philip Morris Inc., 250 F.3d 789, 800 (3d Cir.2001); Paton v. LaPrade, 524 F.2d 862, 871 (3d Cir.1975); Cyrus v. Hogsten, No. 06-2265, 2007 WL 88745, at *3 (M.D.Pa. Jan.9, 2007). To state a claim under Bivens, the plaintiff must show that the defendant, acting under color of Federal law, deprived him of a right secured by the Constitution or laws of the United States. Brown, 250 F.3d at 800; Cyrus, 2007 WL 88745, at *3.

Civil rights claims may only be brought against "persons." 42 U.S.C. § 1983. Individual liability in a civil rights action is personal in nature, and a defendant is liable only if he was personally, affirmatively involved in the alleged malfeasance. C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159, 173 (3d Cir.2005); Robinson v. City of Pittsburgh, 120 F.3d 1286, 1294 (3d Cir.1997), abrogated in part on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (citing Rhode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988). Further, "[b]ecause vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the constitution." Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1948, 173 L.Ed.2d 868 (2009) (collecting cases).

See also Latansio v. Sabol, 2010 WL 4340394, *2-*3 (M.D. Pa.).

Plaintiff does not state that any Defendant was a federal official.

The Court uses the same standard to screen a complaint under the PLRA as it does for a 12(b)(6) motion to dismiss. See O'Connell v. Sobina, 2008 WL 144199, *3 (W.D. Pa.); Matthews v. Villella, 2009 WL 311177, *2 (M.D. Pa.).

V. Motion to Dismiss Standard.

In Reisinger v. Luzerne County, 2010 WL 1976821, *7 (M.D. Pa. 2-2-10), 712 F. Supp. 2d 332, the Court stated:

The Third Circuit Court of Appeals recently set out the appropriate standard applicable to a motion to dismiss in light of the United States Supreme Court's decisions Bell Atlantic Corp. v. Twombly, 550 U.S. 433 (2007), and Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937 (2009). "[T]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true to 'state a claim that relief is plausible on its face.' " Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 570). The Court emphasized that "only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 1950. Moreover, it continued, "[d]etermining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. (citation omitted). McTernan v. City of York, 577 F.3d 521, 530 (3d Cir.2009). The Circuit Court discussed the effects of Twombly and Iqbal in detail and provided a road map for district courts presented with a motion to dismiss for failure to state a claim in a case filed just a week before McTernan, Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir.2009).

[D]istrict courts should conduct a two-part analysis. 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. [ Iqbal, 129 S.Ct. at 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." Id. at 1950. In other words, a complaint must do more than allege a plaintiff's entitlement to relief. A complaint has to "show" such an entitlement with its facts. See Philips [v. Co. of Allegheny], 515 F.3d [224,] 234-35 [ (3d Cir.2008) ]. As the Supreme Court instructed in Iqbal, "[w]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'show[n]'-'that the pleader is entitled to relief.' " Iqbal, 129 S.Ct. at 1949. This "plausibility" determination will be "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.

Fowler, 578 F.3d at 210-11.

The Circuit Court's guidance makes clear that legal conclusions are not entitled to the same deference as well-pled facts. In other words, "the court is 'not bound to accept as true a legal conclusion couched as a factual allegation.' " Guirguis v. Movers Specialty Services, Inc., No. 09-1104, 2009 WL 3041992, at *2 (3d Cir. Sept. 24, 2009) ( quoting Twombly, 550 U.S. at 555) (not precedential). Where the parties submit exhibits with their filings, a court must determine what documents may be considered with a motion to dismiss. In reviewing a motion to dismiss filed pursuant to Rule 12(b)(6)of the Federal Rules of Civil Procedure, the Third Circuit Court of Appeals had held that "a court can consider certain narrowly defined types of material without converting the motion to dismiss" to one for summary judgment. In re Rockefeller Center Properties, Inc. Securities Litigation, 184 F.3d 280, 287 (3d Cir.1999). Specifically, a court can consider "a document integral to or explicitly relied upon in the complaint ... [and] an indisputably authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document." ( Id. (internal citations and quotation omitted).) The Circuit Court explained the rationale for these exceptions: "the primary problem raised by looking to documents outside the complaint-lack of notice to the plaintiff-is dissipated where plaintiff has actual notice and has relied upon these documents in framing the complaint." FN11 Id. (internal citations and quotations omitted).) Matters of public record, including government agency records and judicial records, may be considered. Jean Alexander Cosmetics, Inc. v. L'Oreal USA, Inc., 458 F.3d 244, 257 n. 5 (3d Cir.2006) (citation omitted); Pension Benefit Guarantee Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir.1993).

See also Williams v. Hull, 2009 WL 1586832, *2-*3 (W.D. Pa. 2009).

VI. Discussion.

Initially, we find that Plaintiff's Complaint is in violation of Rule 8. Federal Rule of Civil Procedure 8(a) requires that a complaint contain a short and plain statement setting forth: (1) the grounds upon which the court's jurisdiction rests; (2) the claim showing that the pleader is entitled to relief; and (3) a demand for judgment for the relief sought by the pleader. See Saltzman v. Independence Blue Cross, 2009 WL 1606887, *4 (E.D. Pa.)("The Court in Iqbal explained that, although a court must accept as true all of the factual allegations contained in a complaint, that requirement does not apply to legal conclusions; therefore, pleadings must include factual allegations to support the legal claims asserted.").

As stated, Plaintiff has not name any state actor or state agency as a Defendant. Nor has Plaintiff named any federal official as a Defendant. Plaintiff alleges that his constitutional rights under Sixth Amendment and Fourteenth Amendment were violated by Defendants since they took his $10,000 retainer to represent him in his federal criminal case in this Court and failed to perform any legal services for him resulting in the discharge of Defendants as his defense counsel. Plaintiff also avers that Defendants have refused to return his $10,000 to him. Plaintiff states, in part, that this Court's jurisdiction rests under §1343. We find that Plaintiff's recourse is to file a breach of contract action and/or a legal malpractice against Defendants in state court.*fn10 See Shirazi v. Palissery, Civil No. 11-0141, M.D. Pa. We find that this Court lacks subject matter jurisdiction over this action.

As noted, we find Plaintiff's Complaint fails to state a cognizable claim under §1983. In Hagins v. Spina, 267 Fed. Appx. 118, 119 (3d Cir. 2008)(Per Curiam), the Court stated:

On January 16, 2007, Hagins, proceeding pro se, filed a civil rights complaint, under 42 U.S.C. § 1983, in the District Court. In the complaint, Hagins alleged that he had retained Frank Spina, an attorney, to represent him in a criminal case for a fee of $5,000. Spina, however, according to Hagins, quit the case after Hagins's initial appearance in court. Due to this turn of events, Hagins sought a return of $4,000 of his initial payment to Spina. Spina filed a motion to dismiss the case which the District Court granted on July 2, 2007, 2007 WL 1959306. The District Court held that Hagins had failed to state a claim, under Federal Rule of Civil Procedure 12(b)(6), against Spina because Spina's representation of Hagins did not constitute an act under color of state law. Moreover, the District Court noted that even if Hagins's complaint were construed as raising an issue of Pennsylvania law, it failed to meet the necessary threshold amount in controversy requirement to invoke the District Court's diversity jurisdiction. See 28 U.S.C. § 1332. This timely appeal followed.

The Hagins Court also stated:

We agree with the District Court's analysis. A viable § 1983 claim must be based on a right secured by the Constitution and laws of the United States. Further, "[t]o make a prima facie case under § 1983, the plaintiff must demonstrate that a person acting under color of law deprived him of a federal right." Berg v. County of Allegheny, 219 F.3d 261, 268 (3d Cir.2000) (citing Groman v. Twp. of Manalapan, 47 F.3d 628, 633 (3d Cir.1995)). Under the circumstances related by his complaint, Hagins cannot show the deprivation of a constitutional right through state action. As the District Court noted, Spina's representation of Hagins does not render Spina a "person acting under color of state law" under § 1983. See Polk v. County of Dodson, 454 U.S. 312, 325, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981) (a private attorney, even if appointed and paid for by the state, is not acting under color of state law when performing his function as counsel). Further, Spina's actions denied Hagins the benefit of no identifiable constitutional right.

Id. at 119-120; Shirazi v. Palissery, Civil No. 11-0141, M.D. Pa.

Based on Hagins and Shirazi v. Palissery, Civil No. 11-0141, M.D. Pa., we will recommend that Plaintiff's action be dismissed with prejudice since it fails to state a cognizable claim under §1983.

As stated, Plaintiff states in his Complaint that he filed his action pursuant to 42 U.S.C. §1983 and §1985, and he avers that his constitutional rights under the Sixth Amendment and Fourteenth Amendment were violated by Defendants, private attorneys and a private law firm. However, Plaintiff does not state that any constitutional violations were the result of conduct by a state actor Defendant. Further, Plaintiff has not named any state actor or state agency as a Defendant. Moreover, a private law firm, i.e. Defendant Law Firm Costopoulos, Foster & Fields, is not a state agency. See Wright v. Loftus, Civil No. 09-1305, M.D. Pa., 11-20-09 Memorandum, 2009 WL 4051244 (M.D. Pa.); Shirazi v. Palissery, Civil No. 11-0141, M.D. Pa.

In Kalomiris v. Monroe County Syndicate, 2009 WL 73785, *6 (M.D. Pa.), the Court stated:

Section 1983 is not a source of substantive rights, but merely a method to vindicate violations of federal law committed by state actors. Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir.1996). To establish a claim under this section, the plaintiff must show a deprivation of a "right secured by the Constitution and the laws of the United States ... by a person acting under color of state law." Id. (quoting Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995))

See Pitchfork v. Bor. of Munhall, 631 F.Supp.2d 636, 651-52 (W.D. Pa. 2007); Holmes v. Dreyer, 2010 WL 3791360, *2 (E.D. Pa. 9-28-10); Brookhart v. Rohr, 385 Fed. Appx. 67, 69 (3d Cir. 2010)(Per Curiam).

This principle applies with particular force to civil rights Plaintiffs like Roche-Moreno, who attempt to seek federal courts to consider lawsuits against their own criminal defense counsel. With respect to this state action requirement, it is well-settled that the conduct of an attorney, representing a client in a criminal case, does not by itself rise to the level of state action entitling a prisoner to bring a federal civil rights actions against his own prior counsel. See, e.g., West v. Atkins, 487 U.S. 42, 50 (1988); Polk County v. Dodson, 454 U.S. 312 (1981); Pete v. Metcalfe, 8 F.3d 214 (5 th Cir. 1993); Shirazi v. Palissery, Civil No. 11-0141, M.D. Pa. Clearly, our Defendants are not state actors. In Corliss v. O'Brien, 200 Fed.Appx. 80, 84 (3d Cir. 2006), the Court stated:

The allegations against defendants Germano and Quigley pertain to their representation of the defendant in state court criminal and post-conviction proceedings. Their representation, alone, does not render either of them a "person acting under color of state law" under § 1983. See Polk County v. Dodson, 454 U.S. 312, 325, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981) (a private attorney, even if appointed and paid for by the state, is not acting under color of state law when performing his function as counsel).

In Holmes, the Court stated:

In order to bring suit under federal civil rights laws, a plaintiff must allege that a person acting under color of state law deprived him of his constitutional rights. Kost v. Kozakiewicz, 1 F.3d 176, 184 (3d Cir.1993) (listing elements of a civil rights claim). The United States Supreme Court has determined that a defense attorney "does not act under color of state law when performing a lawyer's traditional functions as counsel in a criminal proceeding." Polk County v. Dodson, 454 U.S. 312, 325, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981) (footnote omitted); Angelico v. Lehigh Valley Hosp., Inc., 184 F.3d 268, 277 (3d Cir.1999). This conclusion applies regardless of whether the defense attorney is court-appointed or privately retained. Black v. Bayer, 672 P.2d 309 (3d Cir.), cert. denied, 459 U.S. 916, 103 S.Ct. 229, 74 L.Ed.2d 182 (1982).

Based on the foregoing, and taking into account plaintiff's claim that his defense attorneys intentionally provided ineffective representation, the Court concludes that plaintiff's defense attorneys are not state actors for purposes of this lawsuit. Although a non-state actor who conspires with a state actor may be liable in a civil rights action, plaintiff's assertion that the defendants, acting in concert with the prosecutors in his criminal case, intentionally provided ineffective representation is unsupported by any credible fact or theory, and is dismissed for that reason. See Young v. Kann, 926 F.2d 1396, 1405 n. 16 (3d Cir.1991) (conspiracy claims may be dismissed when based on plaintiff's mere suspicion and speculation). Thus, plaintiff's defense attorneys may not be sued in this action, and plaintiff's claims against them must be dismissed.

2010 WL 3791360, *2.

We find that Plaintiff's stated allegations against Defendants are almost identical to Plaintiff's claims in Holmes and in Shirazi v. Palissery, and that based on these cited cases, all Defendants should be dismissed from this action with prejudice.

Thus, we find that this Court lacks subject matter jurisdiction over Plaintiff's case. We also find that the Pennsylvania Rules of Professional Conduct which Plaintiff states Defendants violated do not confer jurisdiction on this Court.

The Third Circuit has held that a Plaintiff who filed an in forma pauperis request and whose Complaint fails to state a cognizable claim is entitled to amend his pleading unless the Court finds bad faith, undue delay, prejudice, or futility. See Grayson v. Mayview State Hospital, 293 F.3d 103, 111 (3d Cir. 2002); Alston v. Parker, 363 F.3d 229, 235-236 (3d Cir. 2004). Based upon the above, we find that it would be futile and prejudicial to Defendants to allow Plaintiff to amend his pleading against Defendants. It is clear that Plaintiff simply cannot maintain his §1983 action against his former defense counsel and their law firm since they are not state actors and a state agency.

We find that Plaintiff's present claims against Defendants must be brought in a breach of contract action and/or legal malpractice action which Plaintiff has to institute against Defendants in state court.

Further, insofar as Plaintiff is deemed as alleging that Defendants' failure to return his $10,000 retainer money deprives him of his property in violation of his civil rights, we construe Plaintiff as claiming, in part, that his action is for constitutional violations under § 1983, namely, violations of his Fourteenth Amendment due process rights. As discussed, we will recommend that this claim be dismissed as against Defendants since Defendant Attorneys Matangos, Costopoulos, Foster and Fields are not state actors and, Defendant Costopoulos, Foster & Fields Palissery Law Firm is not a state agency. See Shirazi v. Palissery, Civil No. 11-0141, M.D. Pa.; Conway v. King Pharmaceuticals, Inc., 2008 WL 4128088, * 1 (M.D. Pa.) (A private company is not an appropriate defendant in a § 1983 civil rights action because it is not acting under color of state law.)(citations omitted); Jacobowitz v. M&T Mortgage Corporation, 372 Fed. Appx. at 227 (M&T Mortgage Corporation was not a state agency). As such, no named party in this case is a proper Defendant under §1983. See Hagins, supra; Shirazi v. Palissery, Civil No. 11-0141, M.D. Pa. Further, as discussed, Plaintiff's Complaint does not allege that any Defendant was acting under color of state law. Thus, we will recommend that Plaintiff's Complaint be dismissed as against all four Defendants to the extent it is deemed as raising civil rights claims under §1983.

Moreover, we do not find that Plaintiff has stated a cognizable claim against Defendants under §1985(3). Plaintiff does not allege that the private attorney Defendants acted in concert with any state officials to improperly represent him in his federal criminal case with this Court, to breach an agreement with Plaintiff that he would only receive a sentence of 3 to 5 years in prison if he retained Defendants and, to intentionally keep his retainer despite not performing any legal work for him. As stated, we construe Plaintiff as basing his conspiracy claim under §1985(3).

In Brookhart, the Third Circuit stated:

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege a violation of a right secured by the Constitution or laws of the United States committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). Here, the majority of the defendants are private citizens and not state actors. Liability would attach if a private party conspired with a state actor, Dennis v. Sparks, 449 U.S. 24, 27-28, 101 S.Ct. 183, 66 L.Ed.2d 185, ... . 385 Fed. Appx. at 69.

The Brookhart Court also stated:

Section 1985(3) of title 42 requires a plaintiff to allege that invidious racial or otherwise class-based discriminatory animus lay behind the defendants' actions, and he must set forth facts from which a conspiratorial agreement between the defendants can be inferred. See Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 267-68, 113 S.Ct. 753, 122 L.Ed.2d 34 (1993). Brookhart did not allege that he was a member of a protected class, and his conclusory allegations of a deprivation of his constitutional rights are insufficient to state a section 1985(3) claim. 385 Fed. Appx. at 70.

In Roach v. Marrow, 2009 WL 3103781, *5 (M.D. Pa. 9-24-09), the Court stated:

The requirements for establishing a cause of action under 42 U.S.C. § 1985(3) are set forth in a line of Supreme Court cases beginning with the decision in Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971). There, the Supreme Court clarified that the reach of section 1985(3) is limited to private conspiracies predicated on "racial, or perhaps otherwise class based, invidiously discriminatory animus." Id. at 102, 91 S.Ct. at 1798. The Court strictly construed the requirement of class-based invidious animus in United Brotherhood of Carpenters and Joiners of America, Local 610 v. Scott, 436 U.S. 825, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983), finding that commercial and economic animus could not form the basis for a section 1985(3) claim.

Lake v. Arnold, 112 F.3d 682, 685 (3d Cir.1997). Consistent with these decisions, a plaintiff must allege the following elements in order to state a claim pursuant to 42 U.S.C. § 1985(3):

(1) a conspiracy; (2) motivated by a racial or class based discriminatory animus designed to deprive, directly or indirectly, any person or class of persons to the equal protection of the laws; (3) an act in furtherance of the conspiracy; and (4) an injury to person or property or the deprivation of any right or privilege of a citizen of the United States.

Id.

Thus, "it is not enough that a Plaintiff falls within a class entitled to sue under §1985(3). Instead, the complaint must allege that Defendants have engaged in invidious discrimination against the protected class and that the invidious discrimination has caused the Plaintiff injury." Roach v. Marrow, 2009 WL 3103781, *6 citing Majewski v. Luzerne County, 2007 WL 1074769 (M.D. Pa. 4-9-07); Goodson v. Maggi, 2010 WL 1006901, *6("[M]ere conclusory allegations of deprivations of constitutional rights are insufficient to state a §1985(3) claim.")(citation omitted); Patterson v. City of Philadelphia, 2009 WL 1259968, *4 (E.D. Pa. 5-1-09)("Animus against an individual is not sufficient; animus must be class-based.")(citations omitted).

Plaintiff raises a claim under §1985 (Doc. 1, p. 5) with no subsection stated. We have construed him as raising a conspiracy claim against Defendants under §1985(3). Plaintiff states that he falls within a class entitled to protection afforded by §1985(3) since he claims that he was Dominican and that Defendants were discriminating against him and deceiving him out of his money based on his nationality. However, Plaintiff does not state that the alleged conspiracy arose between Defendants and any state officials with the purpose of violating his constitutional rights by taking his money, by not providing him with any legal representation, and by guaranteeing he receive a prison sentence of 3 to 5 years. Further, Plaintiff does not state that the alleged conspiracy "was motivated by discriminatory animus against an identifiable class and that the discrimination against the identifiable class was invidious." Farber v. City of Patterson, 440 F. 3d 131, 135 (3d Cir. 2006). Rather, Plaintiff avers that the conspiracy was motivated by Defendants' deceitfulness and their lack of professional ethical standards. Plaintiff has not alleged any facts that his nationality caused Defendants to enter into an agreement with state officials to deprive him of his constitutional rights by intentionally taking his money, by failing to properly represent him and, by failing to guarantee he receive a prison sentence of 3 to 5 years. Thus, Plaintiff fails to set forth facts from which a conspiratorial agreement between Defendants and state officials can be inferred.

Thus, we will recommend that Plaintiff's claim against Defendants under §1985(3) be dismissed with prejudice. See Goodson v. Maggi, 2010 WL 1006901, *6; Patterson v. City of Philadelphia, 2009 WL 1259968, *4. Based upon the above, we find that the Court should not allow Plaintiff to amend his Complaint with respect to his §1985(3) claim, and we find that there is futility if Plaintiff is allowed to amend his stated claim. See Grayson v. Mayview State Hospital, 293 F.3d at 111.

Finally, even if Plaintiff is construed as raising a civil rights action against Defendants under Bivens,*fn11 pursuant to 28 U.S.C. §1331, insofar as he is a federal inmate and is alleging Defendants acted improperly with respect to his federal criminal case, we find that Defendants were not federal officials.*fn12 In Murphy v. Bloom, 443 Fed.Appx. at 670, the Third Circuit stated:

To the extent Murphy was attempting to bring legal malpractice claims against Boyle and Lord, the District Court also appropriately dismissed those claims. As the District Court noted, Murphy had no Bivens cause of action against Boyle and Lord, as they are not considered federal actors. Boyle was a privately-retained attorney, and Lord, even though paid by the government, did not act under color of federal law for purposes of Bivens where he was performing traditional functions of counsel. See Polk County v. Dodson, 454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981) (public defender does not act under color of state law under 42 U.S.C. § 1983 when performing traditional functions of counsel to criminal defendant in state proceeding).FN3 To the extent Murphy was claiming ineffective assistance of counsel pursuant to the Sixth Amendment, such claims would properly be brought in a motion filed pursuant to 28 U.S.C. § 2255, not a civil complaint.

FN3. The District Court also properly recognized that Murphy did not follow the proper procedure for bringing a legal malpractice claim; i.e., he did not properly file Certificates of Merit as to his claims, as required by state law. Pa. R. Civ. P. 1042.3 (a Certificate of Merit is required in "any action" against an attorney that calls into question whether counsel "deviated from an acceptable professional standard"). In any event, the District Court would be justified in declining to exercise supplemental jurisdiction over Murphy's state law claims. 28 U.S.C. § 1367(c)(3) (district court may decline to exercise supplemental jurisdiction where district court has dismissed all claims over which it has original jurisdiction).

Thus, we will recommend that all of Plaintiff's claims against Defendants be dismissed with prejudice. We also recommend a finding that any amendment of Plaintiff's Complaint would be futile based on Hagins, Shirazi and Murphy, and based on the other cited cases.*fn13

VII. Recommendation.

Based on the above, it is respectfully recommended that Plaintiff's Complaint (Doc. 1) be dismissed with prejudice as against the four individual Defendants and Defendant Law Firm with respect to all of Plaintiff's claims.*fn14 It is also recommended that Plaintiff's Motion to Proceed in forma pauperis (Doc. 2) be granted solely for the purpose of filing this action.

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

: CIVIL ACTION NO. 1:CV-12-0330

HECTOR ROCHE-MORENO, Plaintiff : v. GEORGE H. MATANGOS, ESQ., et al., Defendants

(Judge Jones)

: (Magistrate Judge Blewitt)

NOTICE

NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated March 8, 2012.

Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:

Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.

s/ Thomas M. Blewitt

THOMAS M. BLEWITT United States Magistrate Judge

Dated: March 8, 2012


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