The opinion of the court was delivered by: JOSE LINARES, District Judge
Plaintiff, Arthur Kitchen, currently incarcerated at the Union
County Jail, Elizabeth, New Jersey, seeks to bring this action
in forma pauperis without prepayment of fees pursuant to
28 U.S.C. § 1915. Based on Plaintiff's affidavit of indigence, the
Court will grant his application to proceed in forma
pauperis pursuant to 28 U.S.C. § 1915(a) and order the Clerk of
the Court to file the complaint.
At this time, the Court must review the complaint pursuant to
28 U.S.C. §§ 1915(e)(2) and 1915A to determine whether it should
be dismissed as frivolous or malicious, for failure to state a
claim upon which relief may be granted, or because it seeks monetary relief from a defendant who is immune from such
relief. For the following reasons, Plaintiff's claims will be
dismissed for failure to state a claim upon which relief may be
granted, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and
Plaintiff seeks to sue two private attorneys for ineffective
assistance of counsel, and for violating his due process rights.
He alleges that on December 24, 2002, the Superior Court of New
Jersey, Appellate Division, "decided State v. Arthur Kitchen
ineffective assistance of counsel on both trial and appellate
level. My constitutional right was violated." Plaintiff states
that he does not know the docket number of the Appellate Division
case.*fn1 Plaintiff also seeks to sue Devon Brown,
Commissioner of the Department of Corrections for illegally
detaining him and placing him in harm by incarcerating him.
Plaintiff asks for monetary damages for the years he was
In 1996, Congress enacted the Prison Litigation Reform Act
("PLRA"), Title VIII of the Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub.L. No. 104-134, 110 Stat. 1321
(April 26, 1996). Congress's purpose in enacting the PLRA was
"primarily to curtail claims brought by prisoners under
42 U.S.C. § 1983 and the Federal Tort Claims Act . . . many of which are
routinely dismissed as legally frivolous." Santana v. United
States, 98 F.3d 752, 755 (3d Cir. 1996). A crucial part of the
congressional plan for curtailing meritless prisoner suits is the
requirement, embodied in 28 U.S.C. § 1915A(b), that a court must
dismiss, at the earliest practicable time, any prisoner actions
that are frivolous or malicious, fail to state a claim, or seek
monetary relief from immune defendants. "A pro se complaint may
be dismissed for failure to state a claim only if it appears
`beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief.'"
Milhouse v. Carlson, 652 F.2d 371, 373 (3d Cir. 1981) (quoting
Haines v. Kerner, 404 U.S. 519, 520 (1972)).
In determining the sufficiency of a complaint, the Court must
be mindful to construe it liberally in favor of the plaintiff.
See Haines v. Kerner, 404 U.S. 519 (1972); United States v.
Day, 969 F.2d 39, 42 (3d Cir. 1992). The Court should "accept as
true all of the allegations in the complaint and reasonable
inferences that can be drawn therefrom, and view them in the
light most favorable to the plaintiff." Morse v. Lower Merion
School Dist., 132 F.3d 902, 906 (3d Cir. 1997). The Court need not, however, lend credit to a pro se plaintiff's "bald
assertions" or "legal conclusions." Id.
A plaintiff may have a federal cause of action under
42 U.S.C. § 1983 for alleged violations of his constitutional rights.
Section 1983 provides in relevant part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory . . . subjects, or causes to be
subjected, any citizen of the United States or other
person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable
to the party injured in an action at law, suit in
equity, or other proper proceeding for redress.
Thus, to establish a violation of 42 U.S.C. § 1983, a plaintiff
must demonstrate that the challenged conduct was committed by a
person acting under color of state law and that the conduct
deprived him of rights, privileges, or immunities secured by the
Constitution or laws of the United States. See Parratt v.
Taylor, 451 U.S. 527
, 535 (1981), overruled in part on other
grounds by Daniels v. Williams, 474 U.S. 327
(1986); Adickes v.
S.H. Kress & Co., 398 U.S. 144
, 152 (1970); Piecknick v.
Pennsylvania, 36 F.3d 1250
, 1255-56 (3d Cir. 1994).
Here, Plaintiff seeks to sue defendants Alan I. Smith, Esq.,
and Charles B. Andre, Esq., private attorneys, for violations of
his constitutional rights. However, Plaintiff pleads no facts to
suggest that counsel were state actors. "[A] lawyer representing a client is not, by virtue of being an officer of the court, a
state actor `under color of state law' within the meaning of §
1983." Polk County v. Dodson, 454 U.S. 312, 318 (1981); see
also Steward v. Meeker, 459 F.2d 669 (3d Cir. 1972)
(privately-retained counsel does not act under color of state law
when representing client); Thomas v. Howard, 455 F.2d 228 (3d
Cir. 1972) (court-appointed pool attorney does not act under
color of state law). Therefore, these claims and defendants will
be dismissed from this action.
Further, Plaintiff seeks to sue the Commissioner of the
Department of Corrections, Devon Brown, for illegally detaining
him. However, "[a] defendant in a civil rights action must have
personal involvement in the alleged wrongs, liability cannot be
predicated solely on the operation of respondeat superior.
Personal involvement can be shown through allegations of personal
direction or of actual knowledge and acquiescence." Rode v.
Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (citations
omitted). Accord ...