                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-23-2008

Mike Perez v. John Griffin
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2979




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CLD-55                                                      NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 08-2979
                                     ___________

                                    MIKE PEREZ,
                                                      Appellant

                                           v.

                                JOHN J. GRIFFIN;
                         LAW OFFICE OF JOHN J. GRIFFIN
                      ____________________________________

                     Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                              (D.C. Civil No. 06-cv-01468)
                   District Judge: Honorable Christopher C. Conner
                     ____________________________________

         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
                                  December 11, 2008

    Before: RENDELL, HARDIMAN and VAN ANTWERPEN, Circuit Judges.

                              (Filed: December 23, 2008)


                                      _________

                              OPINION OF THE COURT
                                    _________

PER CURIAM

     Mike Perez, an inmate at the Federal Correctional Institution, Fort Dix, New
Jersey, filed a pro se complaint in the Middle District of Pennsylvania against attorney

John J. Griffin and the Law Office of John J. Griffin (“Appellees”), alleging malpractice,

fraud, breach of contract, and violation of Perez’ civil rights under 42 U.S.C. § 1983.

Specifically, Perez claimed that he retained Griffin to bring a lawsuit against prison

officials for inadequate medical care 1 , that Griffin failed to do so, and that Griffin

deliberately withheld Perez’s files to ensure the dismissal of Perez’s suit against prison

officials and to deprive Perez of meaningful access to the court. Appellees moved to

dismiss the complaint, contending that (1) the malpractice, fraud, and breach of contract

claims were barred by Perez’ failure to file the certificate of merit required by Rule

1042.3 of the Pennsylvania Rules of Civil Procedure and (2) the § 1983 claim must be

dismissed because Appellees are not state actors and cannot be held responsible for the

alleged violations of constitutional rights. On June 9, 2008, the District Court construed

Appellees’ filing as a motion for judgment on the pleadings, granted the motion, and

separately entered judgment against Perez on all counts. For the following reasons, we

will affirm.

       Our review of an order granting a motion for a judgment on the pleadings under

Rule 12(c) of the Federal Rules of Civil Procedure is plenary. Mele v. Fed. Reserve Bank


       1
         This Court vacated the District Court’s judgment for the defendants in Perez’
action for inadequate medical treatment. Perez v. United States, 271 F. App’x 240 (3d
Cir. 2008). Upon remand, the District Court again granted summary judgment in favor of
the defendants; Perez’ appeal from that judgment is pending. Perez v. United States, C.A.
No. 08-2807.

                                                2
of N.Y., 359 F.3d 251, 253 (3d Cir. 2004). The facts, and any inferences drawn from

them, are viewed in the light most favorable to the nonmoving party and the motion

should not be granted “unless the moving party has established that there is no material

issue of fact to resolve, and that it is entitled to judgment as a matter of law.” Id. Taking

all of Perez’ allegations as true, we agree with the District Court that his failure to comply

with Rule 1042.3 of the Pennsylvania Rules of Civil Procedure is fatal to the claims of

malpractice, fraud, and breach of contract. Similarly, the lack of state action is fatal to his

civil rights claim under 42 U.S.C. § 1983.

       Turning first to the malpractice claim, Rule 1042.3 requires an “attorney for the

plaintiff, or the plaintiff if not represented” who brings an action based on “an allegation

that a licensed professional deviated from an acceptable professional standard” to file a

certificate of merit within sixty days of the filing of the complaint. The certificate must

attest to the colorable merit of the claim by including one of the following statements: (1)

that “an appropriate licensed professional” has supplied a written statement that there is a

reasonable probability that the defendant’s conduct fell outside acceptable professional

standards; (2) that the claim against the defendant is based solely on allegations against

other professionals for whom the defendant is responsible; or (3) that expert testimony is

unnecessary for prosecution of the claim. Pa. R. Civ. P. 1042.3(a). The rule allows for a

sixty-day extension of the period for filing a certificate of merit for “good cause shown.”

Pa. R. Civ. P. 1042.3(d).



                                              3
       Rule 1042.3 is a substantive state law that federal district courts must apply. Cf.

Chamberlain v. Giampapa, 201 F.3d 154, 158-61 (3d Cir. 2000) (holding that a New

Jersey statute similar to Rule 1042.3 should be applied as a substantive state law under

the choice of law doctrine from Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938));

Bresnahan v. Schenker, 498 F. Supp. 2d 758, 762 (E.D. Pa. 2007) (noting that Rule

1042.3 “has been repeatedly held to be controlling substantive law” under the Erie

doctrine). By its explicit terms, the rule applies to both represented plaintiffs and pro se

plaintiffs, like Perez. If a plaintiff does not comply with Rule 1042.3, the claims will be

dismissed and a judgment of non pros entered upon a motion by the defendant. Pa. R.

Civ. P. 1042.6. However, the failure to comply with Rule 1042.3 is not fatal to claims of

professional liability if the plaintiff can show a “reasonable excuse” for the

noncompliance. Womer v. Hilliker, 908 A.2d 269, 279-80 (Pa. 2006).

       In the present case, Perez neither filed a certificate of merit nor requested an

extension of time to do so.2 Nor did he present a reasonable excuse for failing to do so.

Perez stated that he did not file a certificate of merit because he did not believe one was

required. However, a pro se litigant’s ignorance of or mistaken assumptions about the




       2
         We agree with the District Court that the declaration Perez filed with his
opposition to the motion to dismiss is not equivalent to a certificate of merit because it
merely reiterates the allegations in the complaint and does not contain a statement
regarding the colorable merit of his claims as required by Rule 1042.3.

                                              4
requirements of Rule 1042.3 cannot serve as a reasonable excuse. Hoover v. Davila, 862

A.2d 591, 595-96 (Pa. Super. Ct. 2004).

       Perez also argued that his action against Griffin was one primarily for fraud and

breach of contract, which do not require the certificate of merit needed for professional

liability actions. We agree with the able analysis of the District Court that Perez’ fraud

and breach of contract claims are based upon an alleged breach of duties Griffin owed

Perez in the course of legal representation – i.e., the alleged failures to prosecute the

inadequate medical care lawsuit and return Perez’ legal file – and that Perez may not

avoid the filing of a certificate of merit by labeling professional liability claims as

something else. See, e.g., Varner v. Classic Cmtys. Corp., 890 A.2d 1068, 1074 (Pa.

Super. Ct. 2006) (explaining that “it is the substance of the complaint rather than its

form” that controls whether a claim is for professional liability and whether a certificate

of merit is required). In fact, Perez conceded in his brief in opposition that his claims

against Griffin are based solely on a breach of professional duties: “[t]here is no doubt

that the defendants[’] conduct involves a professional legal malpractice violation.”

Therefore, Perez’ failure to file a certificate of merit is fatal to his claims of malpractice,

breach of contract, and fraud, and the District Court appropriately granted judgment on

the pleadings against him.

       Perez also claimed that Griffin violated his civil rights under 42 U.S.C. § 1983. To

prevail on his § 1983 claim, Perez must show that Griffin, while acting under color of



                                               5
state law, deprived him of a constitutional or statutory right. Kaucher v. County of

Bucks, 455 F.3d 418, 423 (3d Cir. 2006). Perez’ complaint alleges only private

transactions between attorney and client with no claim that Griffin acted on behalf of the

state or that his actions can be fairly attributed to the state. Private attorneys performing

their traditional functions are not considered to act under color of state law for purposes

of § 1983. See Angelico v. Lehigh Valley Hosp., Inc., 184 F.3d 268, 277 (3d Cir. 1999);

see also Polk County v. Dodson, 454 U.S. 312, 318 (1981). Because Perez has not

demonstrated that Griffin was a state actor, his § 1983 claim fails.

       In sum, we conclude that the District Court correctly entered judgment on the

pleadings in favor of Appellees and against Perez on all claims and we will affirm.3




       3
          Perez filed “formal objections” to Griffin serving as counsel for the Law Offices
of John J. Griffin because of a “conflic[t] of interest that will impede the proper
prosecution of this case.” We construe that document as a motion to disqualify Griffin
and, in light of our summary disposition of the appeal, we deny it.

                                              6
