UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

MICHAEL WALKER, :

:

Plaintiff :

:

v. : CIVIL NO. 4:CV-06-709

:

STEPHEN CHADWICK SMITH, :

:

: (Judge McClure)

Defendant :

MEMORANDUM AND ORDER

April 24, 2006

Background

This pro se civil rights action was initiated by Michael Walker (“Plaintiff”),

an inmate presently confined at the United States Penitentiary, Lewisburg,

Pennsylvania (“USP-Lewisburg”). Plaintiff has submitted an application

requesting leave to proceed in forma pauperis, which will be granted. For the

reasons set forth below, Walker’s complaint will be dismissed, without prejudice,

as legally frivolous under 28 U.S.C. § 1915.

Named as sole Defendant is Stephen Chadwick Smith, Esq. Walker

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describes Attorney Smith as having been appointed to represent him in a criminal

case during May, 1999. See Record document o. 1, ¶ 1. Plaintiff adds that

Smith’s representation continued when his criminal case went to trial in December,

1999. However, Walker alleges that he entered a guilty plea on the second day of

trial “because he believed that Attorney Smith wasn’t giving him effective

assistance.” Id. at ¶ 3. Three months later, Plaintiff purportedly informed the

Defendant that he wanted to withdraw his plea. Attorney Smith allegedly

responded that “we can’t do that.” Id. at ¶ 5. According to the petition,

following a March, 2000 evidentiary hearing, it was concluded that Attorney Smith

had provided ineffective assistance. Plaintiff seeks one hundred thousand dollars

as compensation for ineffective assistance, stress, mental anguish, and emotional

pain and suffering against the Defendant “for violating my constitutional rights to

the United States Constitution and my civil rights.” Id. at p. 1.

Discussion

28 U.S.C. § 1915 imposes obligations on prisoners who file civil actions in

federal court and wish to proceed in forma pauperis. § 1915(e)(2) provides:

(2) Notwithstanding any filing fee, or any portion thereof, that may

have been paid, the court shall dismiss the case at any time if the

court determines that (A) the allegation of poverty is untrue; or (B) the

action or appeal (i) is frivolous or malicious; (ii) fails to state a claim

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Indisputably meritless legal theories are those "in which it is either readily

apparent that the plaintiff's complaint lacks an arguable basis in law or that the

defendants are clearly entitled to immunity from suit." Roman v. Jeffes, 904 F.2d 192,

194 (3d Cir. 1990) (quoting Sultenfuss v. Snow, 894 F.2d 1277, 1278 (11th Cir.

1990)). 

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on which relief may be granted; or (iii) seeks monetary relief against a

defendant who is immune from such relief.

Consequently, federal courts reviewing civil rights complaints filed by

persons wishing to proceed in forma pauperis may determine that process should

not be issued if the complaint is malicious, presents an indisputably meritless legal

theory, or is predicated on clearly baseless factual contentions. Neitzke v.

Williams, 490 U.S. 319, 327-28 (1989); Wilson v. Rackmill, 878 F.2d 772, 774 (3d

Cir. 1989).1 In Deutsch v. United States, 67 F.3d 1080, 1083 (3d Cir. 1995), the

Third Circuit Court of Appeals added that "the plain meaning of 'frivolous'

authorizes the dismissal of in forma pauperis claims that . . . are of little or no

weight, value, or importance, not worthy of serious consideration, or trivial." "The

frivolousness determination is a discretionary one," and trial courts "are in the best

position" to determine when an indigent litigant's complaint is appropriate for

summary dismissal. Denton v. Hernandez, 504 U.S. 25, 33 (1992).

In order to state an actionable civil rights claim, a plaintiff must plead two

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essential elements: (1) that the conduct complained of was committed by a person

acting under color of law, and (2) that said conduct deprived the plaintiff of a right,

privilege, or immunity secured by the Constitution or laws of the United States. 

Groman v. Township of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995); Shaw by

Strain v. Strackhouse, 920 F.2d 1135, 114-42 (3d Cir. 1990). 

By way of background, Walker was indicted on federal drug charges in the

Middle District of Pennsylvania and the matter was assigned to this Court. See

United States of America v. Walker, No. 4:CR-99-089-03. Attorney Smith was

appointed to provide representation to the Plaintiff under the Criminal Justice Act

(“CJA”). On December 3, 1999, Walker entered a guilty plea to a second

superseding indictment. On July 6, 2000, this Court granted Plaintiff leave to

withdraw his guilty plea and Attorney Smith was withdrawn as Walker’s counsel.

Following the appointment of substitute counsel, Plaintiff again entered into

a plea agreement on March 1, 2001. He was sentenced as a career offender to a

260 month term of imprisonment. His conviction and sentence were affirmed by

the United States Court of Appeals for the Third Circuit. See United States v.

Walker, 69 Fed. Appx. 546 (3d Cir. 2003).

With respect to Walker’s present claims, it is well-settled that public

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defenders and court appointed counsel do not act under color of law for purposes

of civil rights litigation when performing a traditional lawyer’s functions to a

defendant in a criminal proceeding. Polk County v. Dodson, 454 U.S. 312, 318 n.

7 (1981); Black v. Bayer, 672 F.2d 309, 320 (3d Cir.), cert. denied, 459 U.S. 916

(1982). Rankine v. Server, 2001 WL 322517 (E.D. Pa. Feb. 13, 2001)(defense

counsel does 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 allegations against Attorney Smith are entirely premised on actions taken

during the course of the Plaintiff’s criminal defense. Thus, under the standards

announced in Polk and Black, Attorney Smith is not a properly named defendant

for purposes of civil rights litigation.

Second, Walker was granted leave to withdraw his first guilty plea and the

guilty plea which the Plaintiff eventually entered occurred after the representation

by Attorney Smith had ceased. Thus, the complaint is baseless to the extent that it

seeks to assert that Attorney Smith is somehow responsible for the criminal

sentence now being served by the Plaintiff. Finally, it is also noted in Allah v. AlHafeez, 226 F.3d 247,250 (3d Cir. 2000), the United States Court of Appeals for

the Third Circuit recognized that where a plaintiff fails to allege actual injury, 42

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 Section 1997e(e) provides that "[n]o federal civil action may be brought by a

prisoner confined in a jail, prison or other correctional facility, for mental or emotional

injury suffered while in custody without a prior showing of physical injury." 

3 The dismissal of this action does not relieve Plaintiff of the obligation to pay

the full filing fee. Until the filing fee is paid in full, the Administrative Order previously

issued in this case is binding on the Warden of USP-Lewisburg, as well as the Warden

of any correctional facility to which Plaintiff is transferred. 

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U.S.C. § 1997e(e) bars recovery of compensatory damages for emotional injury.2

Under the standards developed in Al-Hafeez, Walker’s complaint to the extent that

it seeks to recover compensatory damages for emotional injury is also barred.

In conclusion, since the Plaintiff's complaint is "based on an indisputably

meritless legal theory" it will be dismissed, without prejudice, as legally frivolous. 

Wilson, 878 F.2d at 774. Consequently,

IT IS HEREBY ORDERED THAT:

1. Plaintiff’s application to proceed in forma pauperis is granted. 

2. Plaintiff’s complaint is dismissed without prejudice as

frivolous pursuant to 28 U.S.C. § 1915 (e)(2)(B)(i).

3. The Clerk of Court is directed to close the case.3

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4. Any appeal from this Order will be deemed frivolous, without

probable cause and not taken in good faith.

 s/ James F. McClure, Jr. 

JAMES F. McCLURE, JR.

United States District Judge

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