United States District Court, E.D. Pennsylvania
Lorenzo Whitaker brings this action pursuant to 42 U.S.C.
§ 1983 against Lawrence J. Bozzelli, an attorney who
represented him on appeal in his criminal proceeding in state
court. Mr. Whitaker seeks to proceed in forma
pauperis. For the following reasons, the Court will
grant Mr. Whitaker leave to proceed in forma
pauperis and dismiss his Complaint with prejudice for
failure to state a claim, pursuant to 28 U.S.C. §
dockets reflect that Mr. Whitaker was convicted of several
counts of burglary and other charges in various proceedings
in the Philadelphia Court of Common Pleas. See
Commonwealth v. Whitaker, Docket Nos.
CP-51-CR-0006996-2014, CP-51-CR-0006998, and
CP-51-CR-0007000-2014. Attorney Bozzelli was appointed to
represent Mr. Whitaker in his criminal appeal after his first
counsel withdrew. Commonwealth v. Whitaker, 2720 EDA
2015 (Pa. Super. Ct.). On January 6, 2017, Mr. Whitaker's
appeal was dismissed due to Mr. Bozzelli's failure to
file a brief on his behalf. Id.
same day the dismissal order was entered, Mr. Bozzelli filed
a motion for reconsideration asking the Pennsylvania Superior
Court to reinstate the appeal. The court granted the motion
and provided time to file a brief. Ultimately, however, the
Pennsylvania Superior Court affirmed Mr. Whitaker's
judgment of sentence on August 15, 2017. The Pennsylvania
Superior Court's opinion, which is attached to the
Complaint in the instant case, reflects that the Pennsylvania
Superior Court addressed Mr. Whitaker's claims despite
counsel's failure to include a copy of his concise
statement of errors complained of on appeal in the appellate
brief. However, the court concluded that the issues raised by
Attorney Bozzelli on Mr. Whitaker's behalf were waived
due to Attorney Bozzelli's failure to cite relevant case
law or develop his arguments.
instant civil action, Mr. Whitaker alleges that Attorney
Bozzelli was ineffective because he failed “to include
a copy of [Mr. Whitaker's] concise statement of errors
complained of on appeal[, ] . . . cite[d] case law that was
totally irrelevant to [Mr. Whitaker's] claims, failed to
include pertinent discussion regarding [Mr. Whitaker's]
constitutional and ineffective assistance claims, and failed
to adequately review the record for relevant errors.”
(Compl. at 3.) Mr. Whitaker also alleges that Attorney
Bozzelli failed to inform him of the appellate court's
final decision. Mr. Whitaker seeks monetary compensation
based on Attorney Bozzelli's mishandling of his appeal.
STANDARD OF REVIEW
Court grants Mr. Whitaker leave to proceed in forma
pauperis because it appears that he is incapable of
prepaying the fees to commence this civil
action. Accordingly, 28 U.S.C. §
1915(e)(2)(B)(ii) requires the Court to dismiss the Complaint
if it fails to state a claim. To survive dismissal for
failure to state a claim, the complaint must contain
“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). As Mr. Whitaker is proceeding pro
se, the Court must construe his allegations liberally.
Higgs v. Att'y Gen., 655 F.3d 333, 339 (3d Cir.
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).
Mr. Whitaker cannot state a constitutional claim against Mr.
Bozzelli because Mr. Bozzelli is not a state actor for
purposes of § 1983. See Polk Cty. 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.”).
Accordingly, although it is understandable why Mr. Whitaker
is dissatisfied with counsel's performance, the Court
must dismiss the Complaint for failure to state a
foregoing reasons, the Court will dismiss Mr. Whitaker's
Complaint for failure to state a claim, pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii). As Mr. Whitaker cannot cure the
defects in his claims, amendment would be futile. An
appropriate order follows.