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


2-18-2009

Peter G. Repoli Jr. v. William Cuoco, Esq.
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1540




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                                                  NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                            ___________

                                 No. 08-1540
                                 ___________

                           PETER G. REPOLI, JR.,
                                                      Appellant

                                       v.

              WILLIAM CUOCO, ESQ.; GEORGE SHIRE, ESQ.;
               REGINA LYNCH; BRENDA WILLIAMS, ESQ.;
               JOANN OLIVER, ESQ.; MICHAEL MARUCCI
                 ____________________________________

               On Appeal from the United States District Court
                        for the District of New Jersey
                    (D.C. Civil Action No. 08-cv-00115)
                District Judge: Honorable Stanley R. Chesler
                ____________________________________

               Submitted Pursuant to Third Circuit LAR 34.1(a)
                             February 17, 2009

     Before: SCIRICA, Chief Judge, CHAGARES and WEIS, Circuit Judges

                        Opinion filed: February 18, 2009

                            __________________

                                 OPINION
                            __________________

PER CURIAM.

         Appellant Peter G. Repoli appeals a January 16, 2008, District Court order

                                       1
dismissing his complaint with prejudice pursuant to 28 U.S.C. § 1915(e)(2) for failure to

state a claim upon which relief may be granted, and a February 11, 2008, order denying

reconsideration and leave to amend. For the reasons that follow, we will affirm.

                                       I. Background

              According to his complaint, Repoli is a paralegal employed by a legal aid

organization specializing in criminal law. In November 2007, he accompanied a woman

to court to assist her in an effort to reduce her fiancé’s bail in exchange for a payment of

$250 that he “held in trust” for her. Before the fiancé’s hearing, Repoli encountered

Appellees, attorneys employed by the New Jersey Public Defender’s Office, who were

representing the fiancé. Repoli provided Appellees with a “statement of facts” he had

prepared in advance, which he intended for their use in representing the fiancé. He then

sat with the woman to explain the court proceedings to her.

              Appellees allegedly sought to speak to the woman alone, at which time they

instructed her to stop communicating with Repoli, informing her that he is a criminal and

should not be trusted. When Repoli attempted to intervene, Appellees allegedly told him

“we don’t like you, we don’t want you here,” and ordered him to return the woman’s

money to her. Two officers who are not party to this action then entered the courtroom

and had Repoli removed to the Essex County Sheriff’s Office.1



   1
     Repoli raises additional factual allegations concerning his treatment while held at the
Sheriff’s Office, including threats of bodily harm. However, Repoli does not allege that
any Appellee played a role in the events relating to his removal and detention.

                                              2
              Proceeding pro se, Repoli filed a civil rights action against Appellees

pursuant to 42 U.S.C. § 1983,2 seeking, inter alia, compensatory and punitive damages.

He also applied to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915. The

District Court granted him IFP status, and in an order entered January 16, 2008, dismissed

Repoli’s complaint with prejudice pursuant to 28 U.S.C. § 1915(e)(2) for failure to state a

claim upon which relief may be granted. Repoli moved for “re-argument or

clarification.” Treating it primarily as a request for reconsideration and leave to amend,

the District Court denied Repoli’s motion. Repoli then pursued a timely appeal to this

Court.

                                       II. Analysis

              To state a claim under 42 U.S.C. § 1983, Repoli was required to show: “(1)

that the conduct complained of was committed by a person acting under color of state

law; and (2) that the conduct deprived a person of rights, privileges, or immunities

secured by the Constitution or laws of the United States.” Robb v. City of Philadelphia,

733 F.2d 286, 290-91 (3d Cir. 1984) (citing Parratt v. Taylor, 451 U.S. 527, 535 (1981)).

We exercise plenary review over the District Court’s dismissal of Repoli’s complaint

pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim. See Tourscher v.



   2
     In his notice of appeal, Repoli also invokes 28 U.S.C. § 1985, which prohibits
certain conspiracies to violate civil rights. See 42 U.S.C. § 1985(1)-(3). However,
Repoli’s complaint does not reference § 1985, and Repoli failed to allege conduct
covered by § 1985, including any fact from which a conspiratorial agreement between
Appellees could be inferred.

                                             3
McCullough, 184 F.3d 236, 240 (3d Cir. 1999).

              Relying on the Supreme Court’s decision in Polk County v. Dodson, 424

U.S. 312, 325 (1981), the District Court explained that “public defenders do not act under

color of state law.” The District Court reasoned that, under Dodson, “[b]ecause clients

cannot sue counsel representing them as pubic defenders under § 1983, a paralegal (such

as Plaintiff) . . . clearly has no ability to bring such a § 1983 claim against public

defenders for their actions in the course of representing other clients.” Thus, because all

Appellees are public defenders, the District Court held that Repoli’s complaint must be

dismissed.

              Repoli contends that Dodson does not apply because Appellees did not act

as his counsel during the events in question. Indeed, Repoli’s complaint is unique

because § 1983 claims against public defenders are typically pursued by clients of the

public defenders, rather than third parties to that relationship. Nevertheless, we agree

with the District Court’s reasoning that Dodson extends to Repoli’s case.

              Repoli’s invocation of state authority is limited to his allegation that

Appellees are employees of the New Jersey Public Defenders Office. In Dodson, the

Supreme Court firmly rejected the notion that a public defender is a state actor solely

because he or she is an employee of the state. Dodson, 454 U.S. at 321. Rather, to satisfy

the “color of state law” element, Repoli was required to allege that Appellees were not

merely performing lawyers’ traditional functions, see id. at 325, but instead were



                                               4
attempting to exercise some sort of official authority over him. See, e.g., Wyatt v. Cole,

504 U.S. 158, 161 (1992) (The “purpose of § 1983 is to deter state actors from using the

badge of their authority to deprive individuals of their federally guaranteed rights and to

provide relief to victims if such deterrence fails.”).

              Repoli failed to raise such an allegation. The complaint shows that Repoli

was aware that Appellees were acting as defense counsel to the fiancé, not as state

officials. Indeed, Repoli attempted to provide assistance to Appellees in their preparation

of the fiancé’s legal defense. As defense counsel to the fiancé, Appellees were acting as

private attorneys opposing the state. See Dodson, 454 U.S. at 318. We have long held

that “[w]hen counsel is retained by a defendant to represent him in a criminal case he acts

in no sense as an officer of the state. For while he is an officer of the court his allegiance

is to his client whose interests are ordinarily diametrically opposed to those of the state.”

United States ex rel. Darcy v. Handy, 203 F.2d 407, 426 (3d Cir. 1953).

              Action taken “under color of state law” must be fairly attributable to the

state. See Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351 (1974). Even

construing Repoli’s pro se complaint liberally, Alston v. Parker, 363 F.3d 229, 234 (3d

Cir. 2004), Appellees’ complained-of actions cannot be fairly attributed to the state.

Thus, we conclude that the District Court properly dismissed Repoli’s claims.3 See 28



   3
     Although we need not reach the issue, we note that Repoli also failed to allege a
violation of the constitution or federal law to satisfy the second element of his § 1983
claim.

                                               5
U.S.C. § 1915(e)(2)(B)(ii).

              Repoli then moved for “re-argument/clarification.” The District Court

construed this motion as primarily seeking reconsideration and leave to amend. A motion

for reconsideration may be granted to correct manifest errors of law, see Harsco Corp. v.

Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985), and leave to amend a pleading “shall be

freely given when justice so requires,” see Fed. R. Civ. P. 15(a). We examine the District

Court’s denial of Repoli’s motion for abuse of discretion. See Alston v. Parker, 363 F.3d

229, 233 (3d Cir. 2004); Lake v. Arnold, 232 F.3d 360, 373 (3d Cir. 2000).

              Granting a plaintiff leave to amend is not necessary where amendment

would be futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 111 (3d Cir. 2002);

Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000). The District Court did not abuse

its discretion in concluding that amendment would be futile in this case, and that

reconsideration and leave to amend should be denied.4 We therefore will affirm the

District Court’s February 11, 2008, order.

              Finally, Repoli contends that the District Court engaged in improper ex

parte communications with Appellees. We find no support in the record for such a claim.



   4
     Repoli’s motion also sought reargument, appointment of counsel, and clarification of
the District Court’s January 16, 2008, order. The District Court denied the request for
reargument because it issued its order pursuant to Fed. R. Civ. P. 78(b), which permits the
court to decide motions on briefs. The District Court denied Repoli’s request for counsel
as moot. While the District Court did not expressly state that it granted Repoli’s request
for clarification, the February 11, 2008, order provided clarification of the grounds for its
January 16, 2008, order. We find no abuse of discretion in any of these actions

                                              6
                                     III. Conclusion

             Because Repoli failed to state a claim under 42 U.S.C. § 1983, and because

he cannot amend his complaint to do so, we conclude that the District Court properly

dismissed the complaint with prejudice pursuant to 28 U.S.C. § 1915(e) and denied

reconsideration. We therefore will affirm the District Court orders entered January 16,

2008, and February 11, 2008.




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