IN THE UNITED STATES DISTRICT COURT 


FOR THE 


MIDDLE DISTRICT OF PENNSYLVANIA 


STEVEN DOUGLAS GEBHART, 

Plaintiff CIVIL NO. 3:CV-15-1687 

v. 

(Judge Conaboy) FILED 

RICHARD FUSCHINO, JR., SRANTON

Defendant 2015

MEMORANDUM ..;.,\ ---....;;...~---I- Background OEPUTY CLERK 

Steven Douglas Gebhart, an inmate presently confined at the 

Laurel Highlands State Correctional Institution, Somerset, 

Pennsylvania (SCI-~aurel Highlands) initiat this se civil 

rights action. The Plaintiff subsequently fil a request for 

leave to proceed in nauperis. Doc. 5. The Complaint is 

currently before the Court for preliminary screening pursuant to 28 

U.S.C. § 1915(e)(2)(b). For the reasons that fol~ow, Plaintiff's 

action will be dismissed without prejudice. 

Named as sole Defendant is Attorney Richard Fus ino, Jr. 

Gebhart describes the Defendant as having served as his privately 

retained criminal defense attorney. The P aintiff states that he 

was initially convicted of de ive business practices, theft by 

deception and corrupt organizations on November 17, 2010 following 

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a jury trial in the York County Court of Common Pleas. On February 

4, 2011, he was sentenced to a 52 to 104 ~onth term of 

imprison~ent. 

Gebhart indicates that he was also convicted of insurance 

fraud on Nove~ber 3, 2011 following a jury trial in the York County 

Court of Common Pleas. Plaintiff was sentenced on December 21, 

2011 to a 9 month to 5 year consecutive term of rceration. 

According to the Complaint, the Defendant purportedly 

abandoned Gebhart and engaged in fraud during the February 4, 2011 

sentencing hearing. Doc. 1, p. 1. It is also all that the 

Defendant was thereafter negligent in filing an appeal on behalf of 

Gebhart. It is r asserted that the Defendant acted 

improperly by withdrawing pre-trial motions on March 30, 2010. 

id. at p. 3. Plaintiff seeks compensatory and punitive damages. 

Discussion 

When considering a complaint accompanied by a motion to 

district court may rule that process 

should not issue if the complaint is malicious, presents an 

indisputably meritless legal theory, or is predicated on clearly 

baseless factual contentions. 490 U.S. 319, 

327-28 (1989), Douris v. Middleton Township, 293 Fed. Appx. 130, 

132 (3d Cir. 2008). ndisputably meritless legal theories are 

those "in which either it is ly apparent that the pIa iff's 

complaint lacks an arguable basis in law or that the defendants are 

clearly entitled to immunity from suit .,. " Roman v. Jeffes, 904 

proce ~~~ ~~~~~, a 

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F.2d 1 , 194 (3d Cir. 1990) (quoting 894 F.2d 

release. 

1277, 1278 (11th Cir. 1990)). 

Injunctive/Declaratory Relief 

It is initially noted that this same De ndant and allegations 

were included in a companion habeas corpus petition filed by 

Plaintiff which is also presently pending before this Court. 

Inmates may not use civil rights actions to challenge the fact 

or duration of their confinement or to seek earlier or spee er 

41~ U.S. 475 (1975). The United 

States Court of Is for the Third Circuit has similarly 

recognized that civil ghts claims seeking release from 

confinement sounded in habeas corpus. Georgevich v. Strauss, 

772 F.2d 1078, 1086 (3d Cir. 1985). 

The United States Supreme Court in , 520 

U.S. 641, 646 (1997), similarly concluded that a ci 1 rights claim 

for declaratory reI f "based on allegations ... that necessarily 

imply the invalidity of the punishment imposed, is not cognizable" 

in a civil rights action. . at 646. Based on the reasoning 

announ in and Edwards, Plaintiff's present claims of 

being provided with ineffect assistance by Attorney Fuschino 

which led to an unconst ut 1 criminal conviction(s) and any 

related requests to have his criminal conviction overturned are not 

properly raised in a civil rights complaint. Accordingly, any such 

claims will be dismissed without prejudice to any r t Plaintiff 

may have to pursue such arguments via his pending federal habeas 

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corpus petition. 

Monetary Damages 

The United States Supreme Court in Heck v. Humphrey, 512 U.S. 

477 (1994), ruled that a constitutional cause of action for damages 

does not accrue "for aIle y unconstitutional conviction or 

imprisonment, or for other harm caused by actions whole 

unlawfulness would render a conviction or sentence invalid," until 

the plaintiff proves that the "conviction or sentence has been 

reversed on direct appeal, expunged by execut order, declared 

invalid by a state tribunal authorized to make such determination, 

or called o question by a ral court's issuance of a writ of 

habeas corpus." . at 486-87. 

As ously noted, Gebhart's action raises cIa that he 

was provided with ineffective assistance by the Defendant, his 

defense attorney, which led to his state criminal conviction(s) 

Based on the nature of Plaintiff's allegations, a find ir. his 

favor would imply the invalidity of his ongoing state confinement. 

There is no indication that Gebhart has successfully appealed or 

otherwise challenged his state criminal convictions. 

Consequently, pursuant to Heck, Plaintiff's tant Complaint 

to the extent that it seeks an award of monetary damages on the 

basis of illegal conviction and confir.ement is premature because he 

cannot maintain a cause of action for an unlawful conviction or an 

excessive imprisonment until the basis for the conviction and 

imprisonment is overturned. 

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State Actor 

A plaintiff, in order to state an actionable § 1983 civil 

rights claim, must plead two essential elements: ) that the 

conduct complained of was committed by a person acting under color 

of state law, and (2) that s conduct deprived the plaintiff of a 

right, pr lege, or immunity secured by the Constitution or laws 

of the United States. See Groman v. Township of ManalaDan, 47 F.3d 

628, 638 (3d Cir. 1995); Shaw by Strain v. Strackhouse, 920 F.2d 

1135, 1141-42 (3d Cir. 1990). 

It is well settled that public defenders and court appointed 

counsel do not act under color of state law for purposes of § 983 

when performing a tr tional lawyer's functions to a defendant in 

a criminal proce ng. Polk County v. Dodson, 454 U.S. 3~2, 318 n. 

7 (1981); Black v. Bayer, 672 F.2d 309, 320 (3d Cir.), cert. 

======' 459 U.S. 916 (1982). 2001 WL 322517 

(E.D. Pa. Feb. 13, 2001) (defense counsel does not act under color 

of state law); Figueroa v. Clark, 1992 WL 122872 (E.D. Pa. June 1, 

1992) (a court appointed attorney represents only his client and not 

the state). 

The cIa raised against Attorney Fuschino are solely based 

upon any actions he took while acting as Plaintiff's privately 

retained criminal defense counsel. Under the standards announced 

in ~~~~, Polk and Black, the Defendant was not acting under color 

of state law for purposes of § 1983 th respect to any cIa 

rega ng his performance as Plaintiff's crilliinal defense counsel. 

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As such, there is no basis for § 1983 liability against the 

Defendant. 

Conclusion 

Since Gebhart's's civil rights complaint is "based on an 

indisputably meritless legal theory," it will be dismissed, without 

prejudice, as legally frivolous. Wilson, 878 F.2d at 774. An 

ate Order will enter. 

.(itdI ;11 &(2e(~~) RICHL~RD P. COl',JABOY . 

United States District Ju~ 

DATED: OCTOBER q12015 


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