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


6-19-2006

DeAngelo v. Brady
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5325




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Recommended Citation
"DeAngelo v. Brady" (2006). 2006 Decisions. Paper 878.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/878


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                                                          NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT

                                  NO. 05-5325
                               ________________

                     JAMES CHRISTOPHER DEANGELO,

                                         Appellant
                                         v.

                  ATTORNEY GENERAL M. JANE BRADY;
                CYNTHIA R. KELSEY, Deputy Attorney General;
                 SUPERIOR CT JUDGE RICHARD R. COOCH;
                 DANIEL R. MILLER, Deputy Attorney General;
                   KEVIN J. O'CONNELL; JOHN J. DUFFY;
                          PATRICK J. REDMOND
                  ____________________________________

                 On Appeal From the United States District Court
                            For the District of Delaware
                            (D.C. Civ. No. 04-cv-00254)
                  District Judge: Honorable Joseph J. Farnan, Jr.
                 _______________________________________

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


         Before: BARRY, SMITH AND NYGAARD, CIRCUIT JUDGES

                              (Filed: June 19, 2006)

                           _______________________

                                   OPINION
                           _______________________

PER CURIAM

    James Christopher DeAngelo, pro se, appeals an order of the United States District
Court for the District of Delaware dismissing his civil rights Complaint as frivolous

pursuant to 28 U.S.C. § 1915(e)(2)(B).

       DeAngelo filed a civil rights complaint claiming that the Attorney General and his

Deputies abused process and maliciously prosecuted him in order to obtain a conviction

on a weapons offense that was barred by the applicable statute of limitations. He alleges

that the trial judge violated his due process and equal protection rights by allowing the

time-barred prosecution to proceed. He asserted that defense counsel conspired with the

Attorney General, his deputies, and the trial judge to convict him of the time-barred

weapons offense. He sought damages.

       The District Court dismissed the complaint sua sponte as frivolous. The District

Court held that the Attorney General and Deputy Attorneys General were absolutely

immune from suit for monetary damages because their alleged actions were within the

scope of the function of “initiating a prosecution and presenting the State’s case” under

Imbler v. Pachtman, 424 U.S. 409, 431 (1976). The District Court determined that trial

Judge Cooch enjoyed absolute judicial immunity from suit because none of the

allegations indicated that the judge acted outside the scope of his judicial authority or in

the absence of all jurisdiction. As for the allegations against criminal defense counsel, the

District Court ruled that these defendants were not “state actors” for § 1983 purposes

under Polk County v. Dodson, 454 U.S. 312, 317 n. 4 (1991) (holding that a public

defender is not a state actor for § 1983 purposes “when performing the traditional

functions of counsel to a criminal defendant”). Thus, defendants were not liable under §

                                              2
1983. DeAngelo timely appealed.

       We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. DeAngelo has been

granted leave to proceed in forma pauperis on appeal. We must accept as true the factual

allegations in the complaint and all reasonable inferences that can be drawn from them.

Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996). As discussed further below, we will

dismiss this appeal pursuant to § 1915(e)(2)(B)(i). See Allah v. Seiverling, 229 F.3d 220,

223 (3d Cir. 2000).

       We find that DeAngelo’s complaint failed to state a claim substantially for the

same reasons set forth in the District Court’s Opinion.1 State action is a prerequisite to

liability under 42 U.S.C. § 1983. “[T]he deprivation must be caused by the exercise of

some right or privilege created by the State . . . or by a person who may fairly be said to

be a state actor.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). This

requirement means that the defendant must have exercised power “possessed by virtue of

state law and made possible only because the wrongdoer is clothed with authority of state

law.” West v. Atkins, 487 U.S. 42, 49 (1988) (quoting U.S. v. Classic, 313 U.S. 299

(1941)). It is well established that defense attorneys, no matter whether they are privately

retained, court-appointed, or employed as public defenders, do not act under color of state

law. See Polk County v. Dodson, 454 U.S. 312, 318 (1981). Here, as in Polk County, the

allegations pertain to defense counsel’s performance of traditional attorney functions vis-


       1
         We agree with the District Court’s reasoning and conclusion with respect to
absolute judicial and prosecutorial immunity and will not discuss it further.

                                              3
a-vis DeAngelo as a criminal defendant, and thus, the defendants are not “state actors” for

§ 1983 purposes.

       DeAngelo also alleged a conspiracy among defense counsel, the judge, and the

Attorney General and his Deputies. Defense counsel could be liable under § 1983 if they

conspired with state officials to deprive Deangelo of his constitutional rights. See Tower

v. Glover, 467 U.S. 914 (1984). However, “[i]t is a longstanding rule in the Third Circuit

that a mere general allegation . . . or averment of conspiracy or collusion without alleging

the facts which constituted such conspiracy or collusion is a conclusion of law and is

insufficient [to state a claim].” Young v. Kann, 926 F.2d 1396, 1405 n. 16 (3d. Cir.

1991). Here, we conclude that the allegations in the complaint and all reasonable

inferences drawn therefrom fail to state a conspiracy claim. Notably, DeAngelo’s

conspiracy claims lack supporting allegations of an agreement among defense counsel,

the judge, and the Attorney General and his Deputies, as well as the basis for alleging

participation with regard to each individual. Nor can we reasonably infer from the

allegations that the defendants had the requisite intent to deprive DeAngelo of a

constitutional right.

       DeAngelo’s complaint does not state a claim upon which relief can be granted

under § 1983. This Court is required to dismiss an in forma pauperis appeal under 28

U.S.C. § 1915(e)(2)(B)(I) where none of the legal points is arguable on its merits. See

Neitzke v. Williams, 490 U.S. 319, 325 (1989). DeAngelo has no arguable legal basis

upon which to appeal the District Court’s order. His appeal, therefore, will be dismissed

                                             4
pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). The State Appellees’ motion for summary

affirmance and the Appellant’s motion for stay of the briefing schedule are denied as

moot.




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