United States District Court, E.D. Pennsylvania
F. Leeson, Jr. United States District Judge
se Plaintiff Anthony Kinder has filed a civil rights
Complaint pursuant to 42 U.S.C. § 1983 naming as
Defendants Sean Fitzgerald, Esquire, the Berks County Public
Defenders Office and Berks County. He also filed a Motion for
Leave to Proceed In Forma Pauperis. For the
following reasons, Kinder will be granted leave to proceed
in forma pauperis and his Complaint will be
dismissed with prejudice pursuant to 28 U.S.C. §
Complaint is brief. He asserts that Defendant Fitzgerald
served as his public defender in his criminal proceeding in
Berks County. He alleges that Fitzgerald violated his Sixth
Amendment right to counsel by neglecting his
responsibilities. He also asserts that Fitzgerald failed to
respond to his calls and letters and violated attorney-client
confidentiality by telling the district attorney all that
Kinder confided in him.
STANDARD OF REVIEW
Court will grant Kinder leave to proceed in forma
pauperis because it appears that he is incapable of
paying the fee to commence the 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. 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). Conclusory
allegations do not suffice. Id. As Kinder is
proceeding pro se, the Court construes his
allegations liberally. Higgs v. Att'y Gen., 655
F.3d 333, 339 (3d Cir. 2011); but see Argentina v.
Gillette, No. 19-1348, 2019 WL 2538020, at *1 (3d Cir.
June 20, 2019) (holding that “liberal construction of a
pro se amended complaint does not mean accumulating
allegations from superseded pleadings”).
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).
Whether a defendant is acting under color of state law -
i.e., whether the defendant is a state actor - depends on
whether there is “such a close nexus between the State
and the challenged action' that seemingly private
behavior may be fairly treated as that of the State
itself.” Leshko v. Servis, 423 F.3d 337, 339
(3d Cir. 2005) (internal quotations omitted). “To
answer that question, [the Third Circuit has] outlined three
broad tests generated by Supreme Court jurisprudence to
determine whether state action exists: (1) whether the
private entity has exercised powers that are traditionally
the exclusive prerogative of the state; (2) whether the
private party has acted with the help of or in concert with
state officials; and (3) whether the state has so far
insinuated itself into a position of interdependence with the
acting party that it must be recognized as a joint
participant in the challenged activity.” Kach v.
Hose, 589 F.3d 626, 646 (3d Cir. 2009) (internal
quotations and alteration omitted).
is settled that criminal defense attorneys, even those
employed as public defenders, are not state actors 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, the claim against Defendant Fitzgerald must be
dismissed with prejudice pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii) for failure to state a plausible claim.
claims against Berks County and the Berks County Public
Defenders Office are also dismissed with prejudice because
they are implausible. First, Kinder states no allegations
against either Defendant. Second, to the extent that they are
named as defendants merely because they employ Defendant
Fitzgerald, Kinder fails to state a claim for municipal
liability. In order to do so a plaintiff must allege that the
defendant's policies or customs caused the alleged
constitutional violation. See Monell v. Dep't of Soc.
Servs. of N.Y., 436 U.S. 658, 694 (1978); Natale v.
Camden Cty. Corr. Facility, 318 F.3d 575, 583-84 (3d
Cir. 2003). The plaintiff “must identify [the] custom
or policy, and specify what exactly that custom or policy
was” to satisfy the pleading standard. McTernan v.
City of York, 564 F.3d 636, 658 (3d Cir. 2009).
“Pennsylvania county offices . . . are treated as
municipalities for purposes of Monell.”
Hatfield v. Berube, 714 Fed.Appx. 99, 102 n.1 (3d
Cir. 2017) (citing Mulholland v. Gov't Cty. of Berks,
Pa., 706 F.3d 227, 237 (3d Cir. 2013)). The claims
against Berks County and the Berks County Public Defenders
Office are implausible because the mere fact that they
possibly employ Fitzgerald does not constitute a
Monell “policy.” An appropriate Order
granting leave to proceed in forma pauperis and
dismissing the Complaint with prejudice
 Although Kinder makes no specific
allegation regarding the Berks County Public Defender Office
or Berks County, the Court assumes Kinder has named them as
defendants because they employ Defendant Fitzgerald.
 The Complaint is dismissed with
prejudice since any amendment of a claim based upon
Fitzgerald's representation of Kinder ...