Opinion
Civil Action 3:22-cv-01839
11-22-2022
RONALD H. EWELL, #2021-00985, Plaintiff, v. COREY KOLCHARNO, Defendant.
(SAPORITO, M.J.)
REPORT AND RECOMMENDATION
(MARIANI, J.)
On November 17, 2022, the court received and lodged a pro se complaint signed and dated by the plaintiff, Ronald H. Ewell, on or about November 1, 2022, together with several exhibits and a motion for leave to proceed in forma pauperis. (Doc. 1; Doc. 2.) On November 22, 2022, we granted the plaintiff's motion for leave to proceed in forma pauperis, and the original pro se complaint has been deemed filed. (Doc. 7.) At the time of filing, the plaintiff was incarcerated at Lackawanna County Prison, a local jail located in Lackawanna County, Pennsylvania.
I. Background
Ewell is currently the defendant in ongoing state criminal proceedings, where he faces various felony drug charges, see Commonwealth v. Ewell, Docket No. CP-35-CR-0000920-2 021 (Lackawanna Cty. (Pa.) C.C.P.), and felony corruption-of-minors charges, see Commonwealth v. Ewell, Docket No. CP-35-CR-0002109-2021 (Lackawanna Cty. (Pa.) C.C.P.).
The pro se complaint asserts federal civil rights claims against Corey J. Kolcharno, Ewell's former court-appointed criminal defense counsel in those state court criminal proceedings.The basis of Ewell's claims against Kolcharno is not entirely clear, but Ewell was clearly dissatisfied with his representation by Kolcharno in the state criminal proceedings. Ewell appears to suggest that Kolcharno may have waived hearings and filed motions to continue proceedings against his client's express wishes. Ewell claims that this conduct violated his constitutional rights. For relief, Ewell seeks injunctive relief and monetary damages.
Based on publicly available state court docket records, Kolcharno was appointed to represent Ewell in both cases on December 22, 2021. Kolcharno filed motions to withdraw in both cases on August 1, 2022. The motion was granted in the drug case, and successor counsel has been appointed to represent Ewell in that case. The motion remains pending in the corruption-of-minors case, but it is our understanding that Kolcharno has been suspended from the practice of law and is facing criminal charges of his own, so we will refer to him as Ewell's former defense counsel despite the unresolved motion to withdraw.
II. Legal Standard
A plaintiff proceeding in forma pauperis is subject to 28 U.S.C. § 1915(e)(2), which provides that a court “shall dismiss the case at any time if the court determines that . . . the action . . . is frivolous.” 28 U.S.C. § 1915(e)(2)(B)(i). A complaint is “frivolous where it lacks an arguable basis in either law or fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). To determine whether it is frivolous, a court must “assess an in forma pauperis complaint from an objective standpoint in order to determine whether the claim is based on an indisputably meritless legal theory or clearly baseless factual contention.” Deutsch v. United States, 67 F.3d 1080, 1086 (3d Cir. 1995) (citing Denton v. Hernandez, 504 U.S. 25, 34 (1992)). This statutory provision further permits a court, in its sound discretion “to dismiss an in forma pauperis claim if it determines that the claim is of little or no weight, value, or importance, not worthy of serious consideration, or trivial.” Deutsch, 67 F.3d at 1089; see also Denton, 504 U.S. at 33-34 (“[F]rivolousness is a decision entrusted to the discretion of the court entertaining the in forma pauperis petition.”).
III. Discussion
The plaintiff has asserted federal civil rights claims against his court-appointed criminal defense attorney, Corey J. Kolcharno, but such claims against a criminal defendant's own counsel are non-cognizable under 42 U.S.C. § 1983 and thus frivolous.
Section 1983 provides in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ....
42 U.S.C. § 1983. Section 1983 does not create substantive rights, but instead provides remedies for rights established elsewhere. City of Oklahoma v. Tuttle, 471 U.S. 808, 816 (1985). To establish a § 1983 claim, the plaintiff must establish that the defendant, acting under color of state law, deprived the plaintiff of a right secured by the United States Constitution. Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995).
The “under color of state law” element of § 1983 excludes from its reach “merely private conduct, no matter how discriminatory or wrongful.” Blum v. Yaretsky, 457 U.S. 991, 1002 (1982). A court-appointed criminal defense attorney is not a state actor for purposes of § 1983. See Gannaway v. Stroumbakis, 842 Fed. App'x 725, 730 (3d Cir. 2021) (per curiam) (court-appointed private defense attorneys were not state actors under § 1983); see also Coudriet v. Vardaro, 545 Fed. App'x 99, 102-03 (3d Cir. 2013) (per curiam); McIntyre v. Cty. of Centre, 411 Fed. App'x 450, 452-53 (3d Cir. 2011) (per curiam); Davis v. Philadelphia Cty., 195 F.Supp.2d 686, 689 (E.D. Pa. 2002); Washington v. Greene, 552 F.Supp. 991, 992 (E.D. Pa. 1982); cf. 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.”).
Under the circumstances alleged, the plaintiff's claims are clearly based on an indisputably meritless legal theory and thus should be dismissed as legally frivolous. See Davis, 195 F.Supp.2d at 689 (dismissing § 1983 claims against court-appointed criminal defense attorney as legally frivolous); accord Newton v. City of Wilmington, 206 F.Supp.3d 947, 954-55 (D. Del. 2016); cf. Dorn v. Aguilar, 645 Fed. App'x 114, 115 (3d Cir. 2016) (per curiam) (dismissing appeal concerning § 1983 claims against public defender as frivolous).
Accordingly, we recommend that the plaintiff's claims against defendant Kolcharno be dismissed as legally frivolous, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
IV. Recommendation
Based on the foregoing, it is recommended that:
1. The complaint (Doc. 1) be DISMISSED as legally frivolous, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i); and
2. The Clerk be directed to mark this case as CLOSED.
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated November 22, 2022. Any party may obtain a review of the Report and Recommendation pursuant to Local 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.
Failure to file timely objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights.