                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-7-2006

Forbes v. McCrystal
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4938




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006

Recommended Citation
"Forbes v. McCrystal" (2006). 2006 Decisions. Paper 1627.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1627


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
HPS-27 (January 2006)                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       NO. 05-4938
                                      ____________

                                   FELIX D. FORBES

                                            vs.

                            MICHAEL J. McCRYSTAL, ESQ.

                       ____________________________________

                     On Appeal From the United States District Court
                        For the Eastern District of Pennsylvania
                              (D.C. Civ. No. 05-cv-04565)
                       District Judge: Honorable Louis H. Pollak
                     _______________________________________

           Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
                                   January 27, 2006

      Before: CHIEF JUDGE SCIRICA, WEIS AND GARTH, CIRCUIT JUDGES

                                (Filed: February 7, 2006)
                               _______________________

                                       OPINION
                               _______________________

PER CURIAM.

              Felix Forbes appeals from the District Court’s order dismissing his

complaint for failing to state a claim on which relief can be granted. Because we

determine that the appeal is lacking in arguable legal merit, we will dismiss it under 28

                                             1
U.S.C. § 1915(e)(2)(B).

              Forbes, who is currently incarcerated at Berks County Prison, filed a pro se

complaint pursuant to 42 U.S.C. § 1983, in the District Court for the Eastern District of

Pennsylvania. Forbes filed this suit against Michael McCrystal, his former attorney.

Forbes alleges that McCrystal had agreed to represent him in an unspecified legal matter,

in exchange for $1,000. According to Forbes’ filings, McCrystal accepted payment, but,

because Forbes is an immigrant facing removal, never performed the agreed upon

services. On October 6, 2005, the District Court granted Forbes’ motion to proceed in

forma pauperis. That same day, the District Court dismissed the complaint for failure to

state a claim on which relief can be granted, noting that McCrystal, as a private attorney,

is not a state actor for the purposes of § 1983.

              Forbes timely filed a notice of appeal. We have appellate jurisdiction

pursuant to 28 U.S.C. § 1291. Having granted Forbes leave to proceed in forma pauperis

on appeal, we must now determine whether his appeal should be dismissed pursuant to 28

U.S.C. § 1915(e)(2)(B). An appeal may be dismissed under § 1915(e)(2)(B) if it has no

arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989).

              To prevail in this § 1983 action, Forbes must show that McCrystal acted

under color of state law and deprived him of a constitutional right. See Lugar v.

Edmondson Oil, Co., 457 U.S. 922, 930 (1982). Forbes argues that McCrystal’s status as

an officer of the court is sufficient to make him a state actor for the purposes of § 1983.

However, private attorneys are not state actors on the basis of their position as officers of

                                              2
the court. Angelico v. Lehigh Valley Hosp., Inc., 184 F.3d 268, 276 (3d Cir. 1999); see

also Polk County v. Dotson, 454 U.S. 312, 318 (1981). Forbes provides no other reason,

and we cannot find another in the record, why McCrystal’s conduct could be fairly

attributable to the state. See Edmondson, 490 U.S. at 937. Accepting Forbes’ claims as

true, as well as all reasonable inferences that can be drawn therefrom, we find that Forbes

alleges a breach of contract or an act of fraud perpetrated by a private party, but not a

deprivation of civil rights cognizable under § 1983.

              In sum, we readily conclude that the District Court correctly dismissed

Forbes’ complaint for a failure to state a claim on which relief can be granted. Because

his appeal also lacks merit, we will dismiss it under § 1915(e)(2)(B).




                                              3
