United States District Court, E.D. Pennsylvania
J. PAPPERT, J.
Junius Bruno, a prisoner currently incarcerated at
SCI-Greene, brings civil rights claims and state law claims
against Daniel Silverman, an attorney who represented him in
his criminal case. For the following reasons, the Court will
grant Burno leave to proceed in forma pauperis and
dismiss his Complaint.
dockets reflect that in March of 2007, Burno was convicted of
murder and sentenced to death after a jury trial in the
Lehigh County Court of Common Pleas. See Commonwealth v.
Burno, Docket No. CP-39-CR-0003637-2003 (Lehigh Cty. Ct.
of Common Pleas). Silverman was appointed to represent Bruno
in connection with post-trial motions. In September of 2009,
the trial court granted Burno's motion for a new trial.
The Commonwealth appealed and Silverman continued to
represent Burno on appeal. In June of 2014, the Supreme Court
of Pennsylvania reversed the order granting a new trial, but
directed the trial court to consider additional issues raised
by Burno's post-sentence motion. See Commonwealth v.
Bruno, 46 EAP 2009 (Supreme Ct. of Pa.); see also
Commonwealth v. Burno, 154 A.3d 764, 779 (Pa. 2017).
During those proceedings, Burno unsuccessfully sought to
proceed pro se. On remand, the trial court denied
Burno relief and he appealed. In 2017, the Supreme Court of
Pennsylvania affirmed the trial court's judgment.
Burno, 154 A.3d at 797.
Burno was in the course of litigating his criminal case, he
filed this civil action against Silverman in July of 2011.
Burno brings claims based on his counsel's alleged
inadequate performance in connection with his representation
of Burno during post-trial proceedings and the first round of
proceedings on appeal before the Pennsylvania Supreme Court.
Burno alleges that conflicts arose between him and counsel,
and that counsel failed to make good on his promises and
agreements. He also alleges that Silverman and the trial
court “engaged in a conspiracy” to prevent him
from proceeding pro se, which included Silverman
representing to the state court that Burno was incompetent.
Overall, it is apparent that Burno was unhappy with
Silverman's handling of his case and accuses him of
attempting to “tank [his] case on appeal and subject
[him] to being put to death by the State . . . .”
(Compl. at 9.)
Complaint indicates that Burno is raising constitutional
claims under 42 U.S.C. § 1983, claims under 42 U.S.C.
§§ 1985(3) & 1986, and tort claims under
Pennsylvania state law. He also seeks, along with money
damages, an injunction to remove Silverman as his counsel.
This case was originally assigned to Judge Robert Kelly, who
granted Burno leave to proceed in forma pauperis and
stayed the case until Burno “informs the Court that his
criminal case has been resolved, including any available
appellate or collateral proceedings.” (Sept. 26, 2011
Order, ECF No. 8, ¶ 2.) Burno filed an objection and
Judge Kelly, treating the objection as a motion for
reconsideration, denied the motion. Burno appealed, but his
appeal was dismissed due to his failure to prosecute. On
March 20, 2017, the Court received a notice from Burno
indicating that his appellate proceedings had terminated.
Thereafter, the case was reassigned to this Court and removed
Burno is proceeding in forma pauperis the Court is
obligated to screen his Complaint pursuant to 28 U.S.C.
§ 1915(e)(2)(B) (providing that, for cases in which a
litigant is proceeding in forma pauperis, “the
court shall dismiss the case at any time if the court
determines” that the case is frivolous, malicious,
fails to state a claim, or seeks relief from an immune
defendant). In that regard, 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). Furthermore, “[i]f the court
determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.”
Fed.R.Civ.P. 12(h)(3). As Burno 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). Furthermore, “to properly plead an
unconstitutional conspiracy, a plaintiff must assert facts
from which a conspiratorial agreement can be inferred.”
Great W. Mining & Mineral Co. v. Fox Rothschild
LLP, 615 F.3d 159, 178 (3d Cir. 2010). “[A] bare
assertion of conspiracy will not suffice.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). To
state a claim for a judicial conspiracy, a complaint should
allege facts concerning “the approximate time when the
[conspiratorial] agreement was made, the specific parties to
the agreement (i.e., which judges), the period of the
conspiracy, [and] the object of the conspiracy.”
Great W. Mining & Mineral Co., 615 F.3d at 179.
although Burno accuses Silverman of engaging in a conspiracy
with the state trial court, he has not pled facts from which
this Court could plausibly infer that an agreement existed
between Silverman and the trial court (or anyone else) to
violate his constitutional rights. Accordingly, any
conspiracy claims against Silverman fail. Additionally, Burno
cannot state a constitutional claim against Silverman because
Silverman 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.”). If Burno seeks to hold
Silverman liable under § 1983 based on his having
allegedly conspired with judges, he may not do so because he
has not adequately pled a conspiracy. Accordingly, the Court
must dismiss Burno's § 1983 claims.
“to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by
actions whose unlawfulness would render a conviction or
sentence invalid, a § 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state
tribunal authorized to make such determination, or called
into question by a federal court's issuance of a writ of
habeas corpus[.]” Heck v. Humphrey, 512 U.S.
477, 486-87 (1994) (footnote and citation omitted). Here,
Burno is essentially claiming that he was deprived of his
right to represent himself in his criminal proceeding and/or
his right to effective assistance of counsel on appeal. As
success on those claims would undermine the judgments in
Burno's criminal proceeding, he cannot proceed on his
claims at this time because his convictions and sentence have
not been reversed, expunged, or otherwise invalidated.
See, e.g., Higgs v. Prezioso, No. CIV.A.