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


2-19-2009

Mark Fisher v. Roan Confer, Jr.
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3297




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DLD-91                                                          NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 08-3297


                                   MARK B. FISHER,
                                             Appellant
                                         v.

                                 ROAN J. CONFER, JR.




                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                              (D.C. Civil No. 08-cv-00778)
                        District Judge: Honorable Malcolm Muir


         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
                                         February 5, 2009

                 Before: BARRY, AMBRO and SMITH, Circuit Judges

                            (Opinion filed:February 19, 2009)




                                        OPINION


PER CURIAM

       Appellant Mark B. Fisher, a Pennsylvania state prisoner, filed an in forma pauperis

civil rights complaint under 42 U.S.C. § 1983 in United States District Court for the
Middle District of Pennsylvania, in which he alleged that his privately retained defense

attorney, Roan J. Confer, Jr., violated his constitutional rights. Fisher alleged that Confer

conspired with Lycoming County investigating officer Thomas Ungard, Jr., to bring about

Fisher’s conviction on drug charges. He alleged in the complaint that Ungard had been

indicted by the state Attorney General and dismissed from a drug task force.

         In an order filed on April 29, 2008, the District Court dismissed the complaint

without prejudice under 28 U.S.C. § 1915(e)(2)(B).1 The District Court explained that a

federal civil rights action under § 1983 may only be maintained against a defendant who

acts under color of state law, West v. Atkins, 487 U.S. 42, 48 (1988), and a privately

retained attorney is not a “state actor” for purposes of § 1983 when performing the

traditional functions of defense counsel in a criminal proceeding, Polk County v. Dodson,

454 U.S. 312 (1981). Noting that liability would attach if a private party conspired with a

state actor, Dennis v. Sparks, 449 U.S. 24, 27-28, the District Court held that Fisher’s

vague allegations of a conspiracy between defense counsel and the police were frivolous.

Fisher was given thirty (30) days to amend his complaint or suffer dismissal.



   1
       Section 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 – ... (B) the action or appeal – (i) is frivolous or malicious;
                (ii) fails to state a claim on which relief may be granted; or (iii) seeks
                monetary relief against a defendant who is immune from such relief.

28 U.S.C. § 1915(e)(2)(B).

                                                2
       Fisher filed one item within thirty days as required by the District Court’s order,

an item titled “Motion for Amendment Supplemental Pleading for all Discovery in

Orphans’ Court ... in the Matter of Delores R. Fisher, etc.” He filed one other item on the

thirty-first day (May 30, 2008), a 10-page motion to amend the complaint (Docket Entry

No. 9), as well as numerous exhibits from matters pertaining to his state court

prosecution. On June 2, 2008, the District Court dismissed the case under 28 U.S.C. §

1915(e)(2)(B), concluding that Fisher’s timely submission apparently concerning an

estates matter would not suffice as an amendment to cure the defects in his original

complaint.

       Fisher then filed a “Motion for Objection of Order, etc.,” in which he called the

court’s attention to his 10-page motion to amend the complaint, and asked the court to

give it consideration as an attempt to comply with the original order granting him

permission to amend. See Docket Entry 12. He also resubmitted the motion to amend the

complaint. See Docket Entry No. 13. In an order filed on June 13, 2008, the District

Court stood by its original decision that the action could not be maintained under § 1983.

The court stated that the most recent submissions were rambling and incomprehensible,

and not in compliance with Federal Rule of Civil Procedure 8. For example, Fisher had

failed to specify the particular conduct of each defendant named, including the date or

dates of the alleged constitutional violations, and he still had not set forth a claim upon

which relief may be granted. The court also faulted Fisher for not filing an amended



                                              3
complaint by the thirty-day deadline, and filing instead an irrelevant item concerning an

estates matter. The two submissions were ordered stricken from the record.

       Fisher tried one last time to amend his complaint, and submitted one more motion,

explaining generally that a conspiracy existed among his defense counsel, the

investigating police officers, and an assistant district attorney, the purpose of which was

to secure his conviction by means of entrapment. See Docket Entry No. 16. In this

motion, Fisher claimed that one of the investigating officers “drugged” the Coke and

cheeseburgers given to him in the police interrogation room, which caused him to give a

videotaped confession. The motion also contained an explanation of sorts of the estates

matter, which happened to involve his mother.

       On July 14, 2008, the District Court ordered that this item be stricken from the

record. Once again, the court noted that the deadline for amending the complaint had

passed, but the court also reiterated its previous reasons for dismissing Fisher’s case

under 28 U.S.C. § 1915(e)(2)(B). The court pointed out that leave to amend had been

granted, but Fisher was unable to submit an amendment adequate to survive dismissal

under the in forma pauperis statute. Fisher was advised to file his notice of appeal, and he

did so on July 30, 2008.

       Our Clerk granted Fisher leave to appeal in forma pauperis and advised him that

his appeal was subject to summary dismissal under 28 U.S.C. § 1915(e)(2)(B) or

summary affirmance under Third Cir. LAR 27.4 and I.O.P. 10.6. He was invited to



                                              4
submit argument in writing, but he has not done so.

       We will dismiss the appeal as frivolous. We have jurisdiction under 28 U.S.C. §

1291. An appellant may prosecute his appeal without prepayment of the fees, 28 U.S.C. §

1915(a)(1), but the in forma pauperis statute provides that the Court shall dismiss the

appeal at any time if the Court determines that it is frivolous, 28 U.S.C. §

1915(e)(2)(B)(i). An appeal is frivolous when it lacks an arguable basis either in law or

fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). As the District Court noted,

Fisher’s defense attorney is not a state actor for § 1983 purposes, Polk County, 454 U.S.

312, but, if a private defense attorney “is a willful participant in joint action with the State

or its agents,” that person is acting under color of state law for purposes of § 1983,

Dennis, 449 U.S. 27-28.

       However, the in forma pauperis statute gives courts “the unusual power to pierce

the veil of the complaint’s factual allegations,” Denton v. Hernandez, 504 U.S. 25, 32

(1992) (quoting Neitzke, 490 U.S. at 327), and dismiss those complaints with factual

contentions that are clearly baseless, id. We have carefully reviewed Fisher’s 10-page

“Motion For Amendment Supplemental Pleading,” which he appears to have intended as

an amended complaint, and we conclude, as did the District Court, that the amendment

did not cure the defects in the original complaint. The original complaint was subject to

dismissal for the reasons given by the District Court, and thus this appeal is frivolous.

       For the foregoing reasons, we will dismiss the appeal as frivolous pursuant to 28



                                               5
U.S.C. § 1915(e)(2)(B)(i). Appellant’s motion for appointment of counsel is denied as

moot.




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