Robert R. Porter v. Harry J. Cancelmi, J , 318 F. App'x 48 ( 2008 )

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Precedential or Non-Precedential: Non-Precedential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
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"Robert R. Porter v. Harry J. Cancelmi, J" (2008). 2008 Decisions. Paper 549.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/549
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 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
DLD-273 NOT PRECEDENTIAL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