HLD-126 (April 2010)                                     NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                       No. 09-4466
                                       ___________

                                 PURNELL R. NELSON,
                                                 Appellant
                                         v.

                      DAUPHIN COUNTY PUBLIC DEFENDER;
                      COMMONWEALTH OF PENNSYLVANIA;
                               KENNETH A. RAPP
                      ____________________________________

                     On Appeal from the United States District Court
                          for the Middle District of Pennsylvania
                               (D.C. Civil No. 09-cv-02066)
                     District Judge: Honorable William W. Caldwell
                      ____________________________________

         Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
         or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                    April 30, 2010
                 Before: SCIRICA, WEIS and GARTH, Circuit Judges
                               (Opinion filed: May 24, 2010)
                                     ___________

                                        OPINION
                                       ___________

PER CURIAM.

              Purnell R. Nelson appeals from the order of the United States District Court

for the Middle District of Pennsylvania dismissing his civil rights action filed pursuant to



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42 U.S.C. § 1983. Nelson, an inmate of the Dauphin County Prison, named as defendants

Kenneth A. Rapp, the Dauphin County Public Defender; the office of the Dauphin

County Public Defender; and the Commonwealth of Pennsylvania. Nelson alleged that

his constitutional rights were violated by the Public Defender when he failed to notify

him that a Dauphin County warrant was issued for his arrest. Nelson explained that he

was arrested in May 2009 for a parole violation and was placed in the Dauphin County

Prison. While he was housed there, in June 2009, an arrest warrant was issued for an

outstanding capias, but the Public Defender failed to notify him. Upon Nelson’s release

in July 2009, he was arrested on the capias, was searched, and had a marijuana joint

seized. He was then detained at the Dauphin County Prison. He noted that he filed a

motion to dismiss based on an illegal search and seizure, lack of probable cause for arrest,

and the arresting officer’s failure to act in accordance with the law and provide him with

Miranda warnings. Nelson alleged that he suffered mental anguish and psychological

damage as a result of the Public Defender’s malpractice and incompetence. Further, he

asserted that the Public Defender acted outside the scope of his duties by failing to notify

Nelson of his pending case before he was arrested on the warrant, and that the Public

Defender’s unethical misconduct violated his constitutional rights under the First, Fourth,

Eighth, and Fourteenth Amendments. As relief, Nelson sought $1 million in

compensatory damages and the same amount in punitive damages.




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              Nelson was granted in forma pauperis status in District Court. The District

Court dismissed the complaint under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a

claim upon which relief may be granted. This appeal followed.

              We have jurisdiction pursuant to 28 U.S.C. § 1291. Upon consideration of

the record, we will affirm. As noted by the District Court, criminal defense attorneys,

including public defenders, do not act “under color of state law” and are not liable under

section 1983 when performing traditional functions as defense counsel. See Polk County

v. Dodson, 454 U.S. 312, 325 (1981). Despite Nelson’s assertion that the Public

Defender acted outside of the scope of his duties, his allegations concern functions that

Nelson expected the Public Defender to perform as defense counsel. Nelson’s allegations

against defendant Rapp fail to state a claim under section 1983. Further, we agree with

the District Court’s conclusion that the complaint fails to state a claim against the office

of the Public Defender and the Commonwealth of Pennsylvania. The complaint makes

no allegations against these two defendants. To the extent that the office of the Public

Defender was named as a defendant only in relation to Nelson’s allegations against

Rapp, the claims must fail. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.

1986) (“defendant in a civil rights action must have a personal involvement in the alleged

wrongs; liability cannot be predicated solely on the operation of respondeat superior.”)

We also agree with the District Court’s conclusion that no claim can be made against the

Commonwealth of Pennsylvania, because it is not a “person” subject to suit under section


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1983. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989) (“We hold that

neither a State nor its officials acting in their official capacities are ‘persons’ under §

1983.”).

              Accordingly, for essentially the same reasons as those set forth by the

District Court in its memorandum, we will affirm. Nelson’s motion for appointment of

counsel is denied.




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