Opinion
Case No. 1:20-cv-00270
01-05-2021
VICTOR K. LEMMONS, JR., Plaintiff v. LEONARD G. AMBROSE III, ESQ., Defendant
UNITED STATES DISTRICT JUDGE SUSAN PARADISE BAXTER REPORT AND RECOMMENDATION MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
I. Recommendation
It is recommended that this action be dismissed, without prejudice, for failure to state a claim in accordance with 28 U.S.C. § 1915(e).
II. Report
A. Plaintiff's motion for leave to proceed in forma pauperis
Plaintiff Victor K. Lemmons, Jr., an inmate incarcerated at the Erie County Prison, initiated this pro se civil rights action by filing a motion for leave to proceed in forma pauperis. In his motion, Plaintiff states that he is unable to pay the filing fee associated with this case. Based upon this averment, as well as a review of Plaintiff's institutional account statement, it appears that Plaintiff is without sufficient funds to pay the costs and fees of the proceedings. Accordingly, his motion for leave to proceed in forma pauperis should be granted.
B. Procedural and factual background
In his original Complaint, filed on September 15, 2020, Lemmons alleges that Defendant, Leonard G. Ambrose III, Esq., committed acts of breach of contract, deceptive trade practices, and intentional infliction of emotional distress while representing Lemmons in Pennsylvania state court proceedings. ECF No. 2, pgs. 1-2. Lemmons filed this Complaint using a standardized form for claims of civil rights violations under 42 U.S.C. §1983. Id.
Lemmons alleges that he privately retained the Defendant to provide counsel for preliminary state court proceedings, paying the Defendant in full for his services in the amount of $15,000 in March 2018. ECF No. 2, p. 2. Once Defendant reached the pretrial motion phase of proceedings, he filed a Motion for Withdrawal of Counsel on December 6, 2018, which was granted by the Honorable Daniel J. Brabender Jr. of the Erie County Court of Common Pleas. Id. Lemmons alleges that the Defendant falsified statements in the aforementioned motion, failed to reimburse the $15,000 payment for services, and ceased all communication. Id. at 2-3.
C. Standard
Having been granted leave to proceed in forma pauperis, Lemmons is subject to the screening provisions in 28 U.S.C. § 1915(e). Among other things, that statute requires the Court to dismiss any action in which the Court determines that the action is "frivolous or malicious; fails to state a claim upon which relief may be granted; or seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2); Muchler v. Greenwald, 624 Fed. Appx. 794, 796-97 (3d Cir. 2015). A frivolous complaint is one which is either based upon an indisputably meritless legal theory (such as when a defendant enjoys immunity from suit) or based upon factual contentions which are clearly baseless (such as when the factual scenario described is fanciful or delusional). Neitzke v. Williams, 490 U.S. 319, 327 (1989). The determination as to whether a complaint fails to state a claim upon which relief may be granted is governed by the same standard applicable to motions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. D'Agostino v. CECOM RDEC, 436 Fed. Appx. 70, 72 (3d Cir. 2011) (citing Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999)).
Because Plaintiff is proceeding pro se, his allegations, "however inartfully pleaded," must be held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520-521 (1972). Moreover, under the liberal pleading rules, during the initial stages of litigation, a district court should construe all allegations in a complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997).
D. Analysis
In the instant case, Lemmons' claims against Ambrose, a private criminal defense attorney, should be dismissed pursuant to §1915(e)(2) for failure to state a claim on which relief may be granted. Lemmons' § 1983 claims fail for two reasons: (1) a privately appointed attorney cannot be considered a state actor under 42 U.S.C. §1983, and (2) the claims of breach of contract, deceptive trade practices, and intentional infliction of emotional distress do not amount to violations of federal law.
First, Lemmons cannot allege a civil right violation under §1983 in this proceeding because the Defendant was not a state actor. To establish a claim under §1983, a plaintiff must allege that a person acting under the color of state or territorial law has deprived them of a federal right. Williams v. Dark, 844 F.Supp. 210, 213 (E.D. Pa. 1993), aff'd, 19 F.3d 645 (3d Cir. 1994) (citing Gomez v. Toledo, 446 U.S. 635, 640 (1980)). The law is clear on this matter. Private attorneys acting on behalf of their clients are not state actors for the purposes of a §1983 claim. Id. (citing Polk County v. Dobson, 454 U.S. 312, 325 (1981)). See also Coudriet v. Vardaro, 2012 WL 5990344, at *4 (W.D. Pa. Oct. 12, 2012), report and recommendation adopted, 2012 WL 5990225 (W.D. Pa. Nov. 30, 2012), aff'd, 545 Fed.Appx. 99 (3d Cir. 2013) ("Private attorneys, including public defenders, acting on behalf of their clients are not state actors, and therefore, cannot be held liable under §1983."); Valerio-Mendez v. Yeager, 2013 WL 790245, at *1 (M.D. Pa. Mar. 4, 2013) ("Attorneys performing their traditional functions will not be considered state actors solely on the basis of their position as officers of the court.").
In his Complaint, Lemmons does not proffer any facts that suggest the Defendant was acting under the color of state law. Instead, the Defendant was acting in his capacity as Lemmons' privately retained attorney at the time of the alleged incidents. For this reason, Lemmons' § 1983 claims must be dismissed.
Second, even if Lemmons could establish that the Defendant acted under color of state law, his state law claims of breach of contract, deceptive trade practices, and intentional infliction of emotional distress do not amount to violations of federal law. As noted above, a successful § 1983 plaintiff must establish "the violation of a right secured by the Constitution and laws of the United States." West v. Atkins, 487 U.S. 42, 48 (1988). Violations of state statutory or common law simply do not fall within the scope of § 1983. See, e.g., Pappas v. City of Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004) (noting that § 1983 is a vehicle "to vindicate violations of federal law committed by state actors") (quoting Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002) (emphasis added)).
Finally, to the extent that Lemmons may be attempting to directly assert his state law claims against the Defendant, that attempt must fail. Federal court "jurisdiction over any state law claim is dependent upon the existence of a valid federal claim." Long v. Armstrong Cty., 189 F.Supp.3d 502, 505 (W.D. Pa. 2016), aff'd sub nom. Long v. Cty. of Armstrong, 679 Fed.Appx. 221 (3d Cir. 2017). After original jurisdiction claims are dismissed, a District Court can choose to decline the exercise of supplemental jurisdiction over remaining state claims. Indeed, the Third Circuit has provided that a "district court must decline to decide [...] pendent state claims unless considerations of judicial economy, convenience, and fairness to the parties provide an affirmative justification for doing so." Id. at 512 (citing Hedges v. Musco, 204 F.3d 109, 123 (3d Cir.2000)). It has already been established that Lemmons' §1983 claim fails because the Defendant is not a state actor. As a result, this Court should not exercise jurisdiction over the state law claims of breach of contract, deceptive trade practices, and intentional infliction of emotional distress.
Lemmons also cannot rely on diversity jurisdiction to assert his state law claims because the parties are both Pennsylvania residents, as per the information provided in the Complaint. 28 U.S.C. 1332(a). --------
III. Conclusion
For the foregoing reasons, it is respectfully recommended that this action be dismissed for failure to state a claim in accordance with 28 U.S.C. § 1915(e)(2). Moreover, leave to amend should not be permitted as there is no set of facts that would allow the Defendant, a private attorney, to be considered a state actor. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002) (noting that curative amendments should be permitted by the Court unless "it would be inequitable or futile."). Nor can the Plaintiff establish that this Court has subject matter jurisdiction over his state law claims. However, dismissal should be without prejudice to the Plaintiff's ability to file for relief in state court if he chooses to do so.
IV. Notice
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, the parties must seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the Objections shall have fourteen (14) days from the date of service of the Objections to respond thereto. See Fed.R.Civ.P. 72(b)(2). Extensions of time will not be granted. Failure to file timely objections may constitute a waiver of appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).
/s/_________
RICHARD A. LANZILLO
United States Magistrate Judge Dated: January 5, 2021