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


9-9-2008

Robert R. Porter v. Harry J. Cancelmi, J
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2433




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DLD-273                                                       NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                      NO. 08-2433
                                      ___________

                                 ROBERT R. PORTER,

                                                            Appellant

                                            v.

                    HARRY J. CANCELMI, JR., Esq., Individually
                    and in his Official Capacity as a Private Attorney
                      ____________________________________

                    On Appeal From the United States District Court
                       For the Western District of Pennsylvania
                             (D.C. Civ. No. 04-cv-01736)
                      District Judge: Honorable Nora B. Fischer
                    _______________________________________

Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B) or Possible Summary
               Action Under Third Circuit L.A.R. 27.4 and I.O.P. 10.6
                                  August 14, 2008

          Before:   BARRY, CHAGARES and GREENBERG, Circuit Judges

                           Opinion Filed: September 9, 2008
                                      _________

                                        OPINION
                                       _________

PER CURIAM

      Robert R. Porter appeals pro se from the orders of the District Court dismissing his

complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) and denying his motion for
reconsideration. For the following reasons, we will summarily affirm.

                                              I.

       Porter is a Pennsylvania state prisoner, and Harry J. Cancelmi is the public

defender who represented him during his criminal proceeding. Before filing the

complaint at issue here, Porter had filed another complaint against Cancelmi, alleging that

he had retained Cancelmi to file two lawsuits against prison officials but that Cancelmi

failed to do so in purported violation of his constitutional rights. The District Court

granted Porter leave to proceed in forma pauperis, then dismissed his complaint pursuant

to § 1915(e)(2)(B)(i) on the grounds that Cancelmi had not acted “under color of state

law” as necessary for liability under 42 U.S.C. § 1983. We dismissed Porter’s resultant

appeal as legally frivolous for the same reason. See Porter v. Cancelmi, C.A. No. 04-

1700, 112 Fed. Appx. 867 (3d Cir. 2004).

       Seventeen days later, Porter filed the complaint at issue here. Porter again names

Cancelmi as the sole defendant and again accuses him of having failed to file the two

lawsuits described in his first complaint. This time, however, Porter alleges that

Cancelmi “accept[ed] a sum of money” from the prison officials he wanted to sue, and

that Cancelmi had thus “converted” his lawsuits for personal profit. The case was

assigned to a Magistrate Judge, who recommended dismissing the complaint under §

1915(e)(2)(B)(i) as malicious or § 1915(e)(2)(B)(ii) for failure to state a claim on the

grounds that it is barred by res judicata. By order entered December 4, 2006, the District



                                              2
Court adopted the Magistrate Judge’s recommendation and dismissed the complaint.1

Porter filed a timely motion under Rule 59(e) of the Federal Rules of Civil Procedure,

which the District Court denied by order entered April 22, 2008. Porter appeals.

                                              II.

       We have jurisdiction under 28 U.S.C. § 1291, and exercise plenary review over the

District Court’s legal determinations. See Lubrizol Corp. v. Exxon Corp., 929 F.2d 960,

962 (3d Cir. 1991). Summary action is warranted when no substantial question is

presented on appeal. See 3d Cir. L.A.R. 27.4 and I.O.P. 10.6. Essentially for the reasons

explained by the Magistrate Judge, we do not believe that there is any question but that

Porter’s second complaint is barred by res judicata. As the Magistrate Judge properly

explained, res judicata bars a second suit where “there has been (1) a final judgment on

the merits in a prior suit involving (2) the same parties or their privies and (3) a

subsequent suit based on the same cause of action.” Lubrizol Corp., 929 F.2d at 963.

Only the third element warrants discussion here.2



  1
   The District Court did not specify whether it dismissed this complaint as malicious
under § 1915(e)(2)(B)(i), for failure to state a claim under § 1915(e)(2)(B)(ii), or both.
Because dismissal was warranted for the second reason, we need not discuss the first.
  2
    Regarding the first element, the Magistrate Judge reasoned that a dismissal of an in
forma pauperis complaint for failure to state a claim under § 1915(e)(2)(B)(ii) constitutes
a final judgment on the merits. That reasoning is clearly correct where, as here, the
second suit also is brought in forma pauperis. See Denton v. Hernandez, 504 U.S. 25, 34
(1992); Cieszkowska v. Gray Line New York, 295 F.3d 204, 205-06 (2d Cir. 2002) (per
curiam). We need not decide whether the dismissal of Porter’s first complaint would bar
any paid complaint he might file in the future. See id.

                                               3
       Porter argues that this element is not present because his allegations of conspiracy

in the second complaint have changed the capacity in which he sues Cancelmi.

Presumably, Porter means that Cancelmi may now be deemed to have acted under color

of state law, thus giving Porter a § 1983 cause of action against Cancelmi that he did not

have before. “Cause of action” for purposes of res judicata, however, does not turn on

the legal viability of a claim. Instead, “cause of action” is a broad, transactional concept

that focuses on the “essential similarity” of the two claims. Churchill v. Star Enters., 183

F.3d 184, 194 (3d Cir. 1999). It does not allow a plaintiff in a second suit to assert

“different legal theories to seek redress . . . from a single course of wrongful conduct.”

Id. at 195. That is all Porter has done here. His claim remains that he has been injured by

Cancelmi’s failure to file two lawsuits on his behalf, and Cancelmi remains the only

defendant. The conspiracy allegations in Porter’s second complaint merely purport to

explain Cancelmi’s motive, and do not give him a separate “cause of action” for res

judicata purposes.3

       Accordingly, we will summarily affirm the judgment of the District Court.

Porter’s motion for the appointment of counsel is denied.




  3
   In addition, Porter is collaterally estopped from relitigating the issue of whether
Cancelmi acted under color of state law because Porter actually litigated and lost that
same issue in his first suit, which was finally decided against him on that basis. See
Peloro v. United States, 488 F.3d 163, 174 (3d Cir. 2007).

                                              4
