                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-31-2007

Martinez-Tull v. Gonzalez-Aleman
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4861




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Recommended Citation
"Martinez-Tull v. Gonzalez-Aleman" (2007). 2007 Decisions. Paper 1052.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1052


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CLD-220                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 06-4861
                                   ________________

                            EDUARDO MARTINEZ-TULL
                                            Appellant,

                                            v.

                         CARLOS M. GONZALEZ-ALEMAN


                    On Appeal From the United States District Court
                       For the Eastern District of Pennsylvania
                             (D.C. Civ. No. 06-cv-04102)
                       District Judge: Honorable Jan E. DuBois

           Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
                                     May 3, 2007


           Before: RENDELL, SMITH AND JORDAN, CIRCUIT JUDGES

                                 (Filed: May 31, 2007)


                              _______________________

                                     OPINION
                              _______________________
PER CURIAM

      Eduardo Martinez-Tull appeals from the District Court’s dismissal of his

complaint as frivolous. Because we determine that the appeal is lacking in arguable legal

merit, we will dismiss it under 28 U.S.C. § 1915(e)(2)(B).

      While incarcerated at FCI Fort Dix, Martinez-Tull filed a complaint in the District
Court pursuant to 42 U.S.C. § 1983 that named Carlos M. Gonzalez-Aleman as

defendant. Martinez-Tull alleges that Gonzalez-Aleman, his former criminal defense

attorney, violated his Sixth Amendment right to counsel by failing to provide adequate

representation on direct appeal, and also stole ten thousand dollars from Martinez-Tull.

(Compl. at 1-2.) He seeks compensatory and punitive damages totaling $1,500,000. (Id.

at 2.)

         The District Court dismissed Martinez-Tull’s complaint as frivolous, reasoning

that “[t]he complaint filed in this case does not allege or even suggest that the defendant .

. . acted under color of state law with respect to plaintiff’s claim.” (Order at 2.) The

dismissal was without prejudice to Martinez-Tull’s right to file an action against

Gonzalez-Aleman for breach of contract and related claims in an appropriate forum. (Id.)

Martinez-Tull filed a timely notice of appeal.

         His appeal is clearly devoid of legal merit. A plaintiff cannot state a viable claim

under § 1983 without alleging that the violation of federal rights of which he complains

“was committed by a person acting under color of state law.” See Harvey v. Plains Twp.

Police Dep’t, 421 F.3d 185, 189 (3d Cir. 2005). Criminal defense attorneys such as

Gonzalez-Aleman do not act under color of state law. See Polk County v. Dodson, 454

U.S. 312, 319-25 (1981)(function of defense lawyer is “essentially . . . private” and

performed without “state office and authority,” even though lawyer is licensed by

government and even if he is employed by government as public defender).

         “[A] public defender does not act under color of state law when performing a

                                               2
lawyer’s traditional functions as counsel to a defendant in a criminal proceeding.” Id. at

325. Martinez-Tull does not allege that Gonzalez-Aleman was employed by or even

appointed to represent him by the state.

       Indisputably, a claim will not lie against Gonzalez-Aleman under § 1983 because

he did not act under color of state law. Therefore, we will dismiss this appeal under §

1915(e)(2).




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