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


3-26-2009

Valentino Amaro v. Wentworth Vedder
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-4130




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Recommended Citation
"Valentino Amaro v. Wentworth Vedder" (2009). 2009 Decisions. Paper 1670.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1670


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BLD-113                                                       NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 08-4130
                                     ___________

                               VALENTINO AMARO,
                                             Appellant

                                          v.

               WENTWORTH D. VEDDER; RICHARD HERNANDEZ
                   ____________________________________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                             (D.C. Civil No. 08-cv-03368)
                     District Judge: Honorable Gene E.K. Pratter
                     ____________________________________

        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 26, 2009

              Before: McKEE, FISHER and CHAGARES, Circuit Judges

                                (Filed: March 26, 2009)
                                      __________

                                      OPINION
                                     __________

PER CURIAM

      Appellant Valentino Amaro appeals from the District Court’s order dismissing his

complaint. We will dismiss the appeal under 28 U.S.C. § 1915 (e)(2)(B).
      In 2008, Amaro filed a civil action under 42 U.S.C. § 1983 alleging that Vedder,

Amaro’s criminal defense attorney, violated his constitutional rights when representing

him. Amaro also alleged that Hernandez, acting on behalf of the Disciplinary Board of

the Supreme Court of Pennsylvania, violated his constitutional rights when he dismissed

Amaro’s formal complaint regarding Vedder’s representation. Amaro sought declaratory

and monetary relief from the District Court.

      Amaro timely filed this appeal. We have jurisdiction pursuant to 28 U.S.C.

§ 1291. Because Amarao is proceeding in forma pauperis, we must dismiss the appeal if

it is frivolous. 28 U.S.C. § 1915(e)(2)(B)(i). Neitzke v. Williams, 490 U.S. 319, 325

(1989).

      As the District Court points out, Vedder is not a state actor acting under color of

state law. The Supreme Court has held that an attorney, whether appointed by the state or

privately retained, “does not act under color of state law when performing a lawyer’s

traditional functions as counsel to a defendant in a criminal proceeding.” Polk County v.

Dodson, 454 U.S. 312, 318-319 (1981); see also Angelico v. Lehigh Valley Hosp., Inc.,

184 F.3d 268, 277 (1999). Therefore, Amaro cannot bring an actionable § 1983 claim

against Vedder.

      Amaro also fails to allege how Hernandez violated his constitutional rights in

dismissing the formal complaint Amaro filed with the Disciplinary Board of the Supreme




                                               2
Court of Pennsylvania. Therefore, we agree with the District Court that Amaro does not

provide a basis for relief under 42 U.S.C. § 1983.

       As the appeal lacks any arguable legal merit, we will dismiss it under 28 U.S.C.

§ 1915 (e)(2)(B)(i). The motion for appointment of counsel is denied.




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