                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-21-2009

Lafayette Brown v. Herbert Terrell
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3945




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Recommended Citation
"Lafayette Brown v. Herbert Terrell" (2009). 2009 Decisions. Paper 1509.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1509


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 DLD-135                                                     NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 08-3945


                               LAFAYETTE BROWN,
                                                         Appellant

                                          v.

                              HERBERT A. TERRELL



                   On Appeal from the United States District Court
                      for the Western District of Pennsylvania
                       (D.C. Civil Action No. 2:08-cv-01119)
                   District Judge: Honorable Terrence F. McVerry


                 Submitted for Possible Summary Action Pursuant to
                      Third Circuit LAR 27.4 and I.O.P. 10.6
                                   March 19, 2009

                Before: BARRY, AMBRO and SMITH, Circuit Judges

                            (Opinion filed April 21, 2009)


                                      OPINION


PER CURIAM

      Appellant Lafayette Brown appeals from a District Court order dismissing his

complaint pursuant to 28 U.S.C. § 1915(e). Because Brown’s appeal does not present a

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substantial question, we will summarily affirm the judgment of the District Court. See 3d

Cir. L.A.R. 27.4; I.O.P. 10.6.

       Brown, proceeding pro se, initiated a civil rights action against Appellee Herbert

Terrell. Brown apparently suffered multiple serious injuries as a result of an accident that

took place in 1977, while he was employed by the City of Pittsburgh. Although his

allegations are unclear, Brown appears to argue that Terrell, an attorney, violated

Brown’s civil rights by wrongfully accepting payment and then failing to represent

Brown in the workers’ compensation matter relating to the 1977 accident.

       The District Court referred the matter to a Magistrate Judge, who granted Brown

permission to proceed in forma pauperis. The Magistrate Judge also filed a Report and

Recommendation recommending that Brown’s complaint be dismissed pursuant to 28

U.S.C. § 1915(e)(2)(B)(ii). The Magistrate Judge stated that she was unable to identify

any basis for federal jurisdiction. She concluded that, to the extent Brown was attempting

to proceed under 42 U.S.C. § 1983, Brown failed to state a claim because he did not

identify a constitutional right implicated by Terrell’s alleged wrongdoing, and because he

did not allege that Terrell acted under color of state law.

       Brown objected to the Report and Recommendation.1 On September 15, 2008,

after conducting a de novo review, the District Court adopted the Magistrate Judge’s

Report and Recommendation and dismissed the Complaint pursuant to 28 U.S.C.


   1
     Although Brown filed his objections in a related action, the District Court considered
the objections as if they were also addressed to this action.

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§ 1915(e)(2)(B)(ii). Brown filed a timely appeal.

       We exercise plenary review over the District Court’s dismissal under

§ 1915(e)(2)(B). See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). Upon

review, we conclude that the District Court properly dismissed Brown’s complaint.

       We agree with the Magistrate Judge’s conclusion that the only arguable federal

claim presented by Brown’s complaint would arise under 42 U.S.C. § 1983. “To 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). Essentially for the reasons explained by the Magistrate Judge, Brown failed to

successfully raise a § 1983 claim.

       At most, Brown’s allegations appear to support state law causes of action. See,

e.g., Baker v. McCollan, 443 U.S. 137, 146 (1979) (tort claims must be pursued in state

courts under traditional state law principles, not under § 1983). Although Brown cites to

the First and Fourteenth Amendments, Brown fails to set forth any facts supporting a

constitutional deprivation. Further, Brown does not allege that Terrell is a state actor, see

Harvey v. Plains Twp. Police Dep’t, 421 F.3d 185, 189 (3d Cir. 2005), and the fact that

Brown hired Terrell to represent him as legal counsel does not render Terrell a “person

acting under color of state law” for purposes of § 1983. See Polk v. County of Dodson,

454 U.S. 312, 325 (1981) (an attorney does not act under color of state law when

performing his function as counsel). Thus, Brown failed to state a claim on which relief

                                              3
may be granted, and the District Court properly dismissed his complaint pursuant to 28

U.S.C. § 1915(e)(2)(B)(ii).

        Brown’s appeal does not present a substantial question. We will therefore

summarily affirm the judgment of the District Court. See 3d Cir. L.A.R. 27.4; I.O.P.

10.6.




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