United States District Court, E.D. Pennsylvania
Hakim Bond, a prisoner at the State Correctional Institution
at Mahanoy, brings this civil action pursuant to 42 U.S.C.
§ 1983 against the attorney representing him in his
state court post-conviction relief proceedings. Plaintiff
seeks to proceed in forma pauperis. For the
following reasons, the Court will grant plaintiff leave to
proceed in forma pauperis and dismiss his complaint.
Court understands plaintiff to be claiming that his PCRA
counsel is ineffective and discriminated against him, and
that his PCRA counsel defamed his father and violated his
father's rights to due process and equal protection under
the law. He also appears to allege that his trial and
appellate counsel were ineffective. A review of public
dockets reflects that plaintiff was convicted of first degree
murder and related offenses in the Philadelphia Court of
Common Pleas and ultimately sentenced to thirty-five years to
life in prison. See Commonwealth v. Bond, Docket
No. CP-51-CR-0007714-2009 (Phila. Ct. Common Pleas).
Plaintiff is currently awaiting a decision on his
post-conviction relief petition in state court. See
Id. In the instant civil action, plaintiff seeks $200,
000 in damages and a court order requiring his attorney to
give him a written apology and withdraw from representing him
in the PCRA proceedings.
STANDARD OF REVIEW
Court grants plaintiff leave to proceed in forma
pauperis because it appears that he is not capable of
paying the fees to commence this civil action. Accordingly, 28
U.S.C. § 1915(e)(2)(B)(ii) applies, which requires the
Court to dismiss the complaint if it fails to state a claim.
Whether a complaint fails to state a claim under §
1915(e)(2)(B)(ii) is governed by the same standard applicable
to motions to dismiss under Federal Rule of Civil Procedure
12(b)(6), see Tourscher v. McCullough, 184 F.3d 236,
240 (3d Cir. 1999), which requires the Court to determine
whether the complaint contains "sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face." Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quotations omitted). The Court may also
consider matters of public record. Buck v. Hampton Twp.
Sch. Dist, 452 F.3d 256, 260 (3d Cir. 2006). As
plaintiff is proceeding pro se, the Court construes
his allegations liberally. Higgs v. Att'y Gen.,
655 F.3d 333, 339 (3d Cir. 2011).
extent plaintiff is raising claims on his father's behalf
based on harm sustained by his father, his claims fail.
"[A] plaintiff must assert his or her own legal
interests rather than those of a third party" to have
standing to bring a claim. Twp. of Lyndhurst, N.J. v.
Priceline.com, Inc., 657 F.3d 148, 154 (3d Cir. 2011)
(quotation omitted). Plaintiff alleges that his PCRA attorney
defamed his father and violated his father's
constitutional rights, but plaintiff does not have standing
to pursue those claims. Accordingly, the Court will dismiss
them without prejudice.
claims against plaintiffs PCRA attorney that he raised on his
own behalf fail on their merits. "To state a claim under
§ 1983, a plaintiff must allege the violation of a right
secured by the Constitution and laws of the United States,
and must show that the alleged deprivation was committed by a
person acting under color of state law." West v.
Atkins, 487 U.S. 42, 48 (1988). Section 1983 is not
applicable here because plaintiffs attorney is not a state
actor. See Polk Cnty. v. Dodson, 454 U.S. 312, 325
(1981) ("[A] public defender does not act under color of
state law when performing a lawyer's traditional
functions as counsel to a defendant in a criminal
proceeding.") (footnote omitted); Angelico v. Lehigh
Valley Hosp., Inc., 184 F.3d 268, 277 (3d Cir. 1999)
("Attorneys performing their traditional functions will
not be considered state actors solely on the basis of their
position as officers of the court."). These claims are
dismissed with prejudice.
plaintiff's claims regarding his displeasure with his
PCRA attorney's performance may not be pursued under
§ 1983. First, "a state prisoner's § 1983
action is barred (absent prior invalidation)-no matter the
relief sought (damages or equitable relief), no matter the
target of the prisoner's suit (state conduct leading to
conviction or internal prison proceedings)-if success in that
action would necessarily demonstrate the invalidity of
confinement or its duration." Wilkinson v.
Dotson, 544 U.S. 74, 81-82 (2005) (emphasis omitted). As
plaintiffs conviction and sentence have not been reversed,
expunged, or otherwise invalidated, his damages claims are
currently not cognizable under § 1983. Second, this
Court may not intervene in plaintiffs state criminal
proceeding. See Younger v. Harris, 401 U.S. 37,
43-44 (1971). Accordingly, if plaintiff seeks a new
post-conviction attorney, he must raise that issue with the
foregoing reasons, the Court will dismiss plaintiffs
complaint for failure to state a claim, pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii). Plaintiff will not be given leave
to amend because amendment would be futile. See Grayson
v. Mayview State Hosp., 293 F.3d 103, 112-13 (3d Cir.