                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-29-2007

Radocesky v. Munley
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3633




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Recommended Citation
"Radocesky v. Munley" (2007). 2007 Decisions. Paper 856.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/856


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BLD-105                                          NOT PRECEDENTIAL

                 UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT

                               NO. 06-3633
                            ________________

              NICHOLAS RADOCESKY; FAITH FRAZIER;
          NICHOLAS R. RADOCESKY; DAUGHTER RADOCESKY

                                     v.

          ROBERT MUNLEY; CARMEN MINORA; AMY PHILLIPS;
              ANDREW JARBOLA, D.A. Lackawanna County;
            CHARLES WITACONIS, Assistant Public Defender;
             MICHAEL BARRASSE, Lackawanna County Judge;
                    UNKNOWN CITY SOLICITOR

                                         Nicholas N. Radocesky,
                                                       Appellant
                 ____________________________________

               On Appeal From the United States District Court
                  For the Middle District of Pennsylvania
                        (D.C. Civ. No. 06-cv-00553)
                District Judge: Honorable James M. Munley
                       __________________________

                 Submitted Under 28 U.S.C. § 1915(e)(2)(B)
                             January 25, 2007

               Before: McKee, Fuentes and Roth, Circuit Judges


                           (Filed: June 29, 2007 )

                            _________________

                                OPINION
                            _________________
PER CURIAM

         Appellant Nicholas Radocesky filed an in forma pauperis civil rights action in

United States District Court for the Middle District of Pennsylvania against several judges

of the Lackawanna County Court of Common Pleas, members of the District Attorney’s

Office, and members of the Public Defender’s Office, alleging that these individuals took

advantage of him in convincing him to plead guilty to a misdemeanor possession of a

controlled substance charge. Originally, his bail was revoked when he did not plead

guilty to a Delivery charge in accordance with the terms of the plea agreement. His

public defender then worked out a new agreement that would result in his release if he

would plead guilty to a misdemeanor possession charge. He did so, and two other

misdemeanor counts were dismissed as a result of the plea. Radocesky is neurologically

disabled and suffers from organic brain syndrome, apparently as a result of a serious

automobile accident. In an amendment to the complaint, he indicated that he was seeking

compensatory and punitive money damages for the sake of his family and to secure their

future

         In an order entered on June 29, 2006, the District Court dismissed the complaint

under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which

relief may be granted. The court reasoned that judges are immunized from a suit for

damages for acts done in the performance of their judicial duties. Stump v. Sparkman,

435 U.S. 349, 356-57 (1978). The decision whether or not to initiate or prosecute a case



                                              2
is completely discretionary with prosecutors and also is absolutely immunized from a suit

for damages. Imbler v. Pachtman, 424 U.S. 409 (1976). Finally, no liability attaches

under 42 U.S.C. § 1983 for representation of a criminal defendant, because a public

defender does not act under color of law in representing his or her client. Polk County v.

Dodson, 454 U.S. 312 (1981).1 Radocesky filed a timely motion for reconsideration,

contending that he had alleged a number of “declaratory decree violations” which would

not be immunized from suit.

       Radocesky appeals. His motion to appeal in forma pauperis was granted by our

Clerk and he was notified that his appeal would be considered under 28 U.S.C. §

1915(e)(2)(B).

       We will dismiss the appeal under 28 U.S.C. § 1915(e)(2)(B)(i). An appeal is

frivolous when it lacks an arguable basis either in law or fact. Neitzke v. Williams, 490

U.S. 319, 325 (1989). Under Rule 12(b)(6), dismissal of a complaint is proper only if it is

clear that no relief could be granted under any set of facts that could be proved consistent

with the allegations. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). It is clear here that no

relief could be granted under any set of facts that could be proved consistent with the

allegations. The District Court properly dismissed the amended complaint on the basis of

immunities and the absence of state action. This action does not involve a demand for



   1
     Radocesky also sought the court’s assistance in bringing two unidentified inmates to
justice for sexually assaulting him. The court noted for his benefit that it had no authority
to bring charges against the inmates.

                                              3
prospective relief to which the District Court’s immunities analysis might not apply. In

addition, Heck v. Humphrey, 512 U.S. 477 (1994), bars the action because the conviction

has never been invalidated.2

       We will dismiss the appeal as frivolous.




   2
     Thomas Gilholy, the Superintendent of the Lackawanna County jail, also was named
as a defendant in the original complaint, and the Pennsylvania Board of Probation and
Parole, and/or certain of its officials, were named in an amendment. There are no
allegations directed at these defendants and they were thus entitled to dismissal under
Rule 12(b)(6) as well.

                                       4
