                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-22-2006

Durham v. Erie
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4018




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                                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                _______________

                                     NO: 05-4018
                                   _______________

                               WARREN DURHAM, JR.,
                                       Appellant

                                            vs.

    CITY AND COUNTY OF ERIE; ERIE COUNTY COURT; JUDGE SHAD
CONNELLY, in his capacity as Judge; JUDGE FRED P. ANTHONY, in his capacity as
  Judge; KEVIN KALLENBACH, individually, in his capacity as Public Defender
                               _______________

                      Appeal From the United States District Court
                        For the Western District of Pennsylvania
                              (D.C. Civ. No. 04-cv-00198E)
                     District Judge: Honorable Sean J. McLaughlin
                                  __________________

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                 MARCH 13, 2006
              Before: FISHER, ALDISERT AND WEIS, Circuit Judges.

                                Filed March 22, 2006
                              _______________________

                                     OPINION
                              _______________________

PER CURIAM.

             On May 27, 2004, we reversed the District Court’s denial of Appellant

Warren Durham’s petition for habeas corpus. See Durham v. Vaughn, No. 03-1809 (3d

Cir. May 27, 2004). As a result, Durham was retried, acquitted on all charges, and
released after serving approximately eight-and-a-half years in a Pennsylvania prison. He

brought this action pursuant to 42 U.S.C. § 1983 against his former defense attorney,

Kallenbach; Judges Anthony and Connelly; the Erie County Court of Common Pleas; and

the City of Erie. For the reasons that follow we will affirm the District Court’s order.

                                             I.

              The facts of this case are well detailed in prior opinions, thus we only

briefly recite them here. In 1996, Kallenbach was appointed to represent Durham on

charges of rape and other related crimes. Durham became suspicious that Kallenbach was

working “too closely” with the Prosecutor and moved for the appointment of new

counsel. A colloquy was held before Judge Connelly. Connelly denied Durham’s

request, and gave him the choice of either proceeding pro se or going ahead with

Kallenbach. Durham chose neither. Judge Connelly found that Durham’s refusal to be

represented by Kallenbach amounted to an express desire to proceed pro se, and entered

an order accordingly. At trial before Judge Anthony, Durham again complained that he

did not want to proceed pro se. Judge Connelly’s order precluded the appointment of a

new public defender, so the trial simply went forward and Durham refused to put on a

defense.

              We eventually directed the District Court to grant Durham’s habeas

petition, finding that Judge Connelly forced Durham to represent himself in violation of

his right to counsel. Id. at *17. Durham was released from prison and brought the instant

suit under § 1983. Specifically, he seeks monetary, declaratory, and injunctive relief

                                             2
against the City of Erie and the Erie County Court for establishing a custom or policy of

denying the right to counsel without due process; against Judges Anthony and Connelly

for establishing the same custom or policy and being “deliberately indifferent” to his right

to counsel; and against Kallenbach for conspiring with Judge Connelly to deprive him of

his right to counsel. The Defendants moved to dismiss the complaint and District Court

granted the motions. Durham appealed.1

                                             II.

                A .Erie County Court, Judge Anthony, and Judge Connelly

              On appeal Durham abandons any argument that he seeks monetary damages

against the judicial Defendants. Rather, he argues that his complaint seeks solely

declaratory and injunctive relief and that “the District Court had the power to grant it.”

We disagree. Durham can establish standing if “he has sustained or is immediately in

danger of sustaining some direct injury’ as a result of the challenged official conduct and

the injury or threat of injury must be both ‘real and immediate’ . . . .” City of Los

Angeles v. Lyons, 461 U.S. 95, 101-02 (1983) (citations omitted).

              Standing upon a past injury exists only if it is still accompanied by present

adverse effects; i.e., the injury sustained from the challenged conduct is still ongoing. See

O’Shea v. Littleton, 414 U.S. 488, 495-96 (1974) (finding no standing where county

judge previously made discriminatory rulings against members of a class, but none was


   1
     We have appellate jurisdiction pursuant to 28 U.S.C. § 1291 and exercise de novo
review. See Pryor v. Nat’l Collegiate Athletic Ass’n, 288 F.3d 548, 559 (3d Cir. 2002).

                                              3
threatened with a future discriminatory ruling). Durham does not argue that he faces a

repeat of the injury. Even if he did present the argument, the possibility that Durham will

come before the same court on a matter requiring the appointment of counsel is too

speculative and conjectural for the purposes of Article III standing.

                                      B. City of Erie

              A municipality may be liable under § 1983 if the Plaintiff proves that a

policy or custom employed by the city resulted in a constitutional violation. See Monell

v. Dep’t of Soc. Servs., 436 U.S. 658, 694-95 (1978). Durham’s complaint includes

nothing more than a conclusory allegation that Erie has established an official policy or

custom to deprive defendants of their right to counsel. He provides only one incident as

an example, his own. See City of Oklahoma City v. Tuttle, 471 U.S. 808, 822-24 (1985)

(holding one incident not usually sufficient). Moreover, the complaint fails to allege the

existence of any actually enacted policy or explain how city custom could influence a

judicial determination. Durham fails to assert any facts that place the Defendant on

notice of the basic elements of his cause of action. See Langford v. City of Atlantic City,

235 F.3d 845, 847 (3d Cir. 2000). The claim was properly dismissed.




                                             4
                                       C. Kallenbach

              Generally, a public defender is not a state actor for the purposes of § 1983.

See Polk County v. Dodson, 454 U.S. 312, 325 (1981). However, defense counsel may

be sued under § 1983 if he conspires with a state actor, irrespective of whether the co-

conspiratorial state actor is himself immune from suit. See Tower v. Glover, 467 U.S.

914, 916 (1984); Dennis v. Sparks, 449 U.S. 24, 27-28 (1980).

              Durham’s complaint sets forth the following claim:

              Kevin Kallenbach, conspired with Defendants [sic] Connelly to deny
              Plaintiff his constitutional right to counsel when he failed to appraise the
              court of his lack of communication, irreconcilable conflict with Plaintiff,
              and the information shared between he and assistant prosecutor Christopher
              McElynn concerning the extortion of Plaintiffs’s family by the prosecutrix
              in the criminal case.

              Compl. at 6-7. The District Court held that under a fact-specific pleading

requirement, Durham failed to show that Kallenbach conspired with any of the other court

actors. Although the District Court incorrectly applied a fact-specific pleading standard,

see Alston v. Parker, 363 F.3d 229, 233 (3d Cir. 2004) (abrogating our cases applying a

fact-specific pleading requirement to civil rights cases), Durham still fails to sufficiently

allege a claim under Rule 8(a)’s more lenient notice-pleading standard. See id., 363 F.3d

at 233 (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513 (2002).

              Under the notice-pleading standard, a complaint must include more than

“conclusory allegations of concerted action . . . .” Abbott v. Latshaw, 164 F.3d 141, 148

(3d Cir. 1998). It must also contain at least some facts which could, if proven, permit a


                                              5
reasonable inference of a conspiracy to be drawn. See Evancho v. Fisher, 423 F.3d 347,

353 (3d Cir. 2005); Langford, 235 F.3d at 847.

              The primary problem with Durham’s conspiracy allegations is that he

initially wrote to Kallenbach stating that he no longer wished to be represented by him.

Kallenbach then submitted a motion to withdraw, which Durham signed. He does not

allege, nor do the facts support, an inference that Kallenbach planned to withdraw on his

own volition or with the aid of either Judge Connelly or McElynn. Additionally, Durham

fails to allege any particular conversation or conduct that would establish a conspiracy

between Kallenbach and Judge Connelly. To the contrary, Durham argues that

Kallenbach failed to communicate with Judge Connelly. While this may be troubling, it

is not sufficient to infer a conspiracy.

              We also note that, while not addressed by the District Court, Durham

attempts to allege that Kallenbach conspired with McElynn. McElynn is certainly a state

actor. See, e.g., Reitz v. County of Bucks, 125 F.3d 139, 147-48 (3d Cir. 1997)

(involving allegations of a private third-party acting in concert with county prosecutor).

Although Durham’s complaint alleges that Kallenbach and McElynn were aware of,

discussed, and withheld specific exculpating information, he does not assert, nor does any

portion of the record reflect, that this was intentionally orchestrated conduct.

              For the foregoing reasons, Durham fails to state a claim upon which relief

can be granted. Accordingly, we will affirm the District Court’s judgment.



                                              6
