Todd Dorn v. Omar Aguilar , 645 F. App'x 114 ( 2016 )

CLD-182 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 15-3471
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TODD D. DORN,
Appellant
v.
OMAR AGUILAR, ESQ.; ATLANTIC COUNTY
PUBLIC DEFENDERS OFFICE
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On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civ. No. 1-15-cv-06011)
District Judge: Honorable Noel L. Hillman
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Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or
Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
March 17, 2016
Before: FISHER, JORDAN and VANASKIE, Circuit Judges
(Opinion filed: March 30, 2016)
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OPINION*
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PER CURIAM
Todd D. Dorn appeals from an order of the District Court dismissing his complaint
with prejudice and denying him leave to amend. For the reasons that follow, we will
dismiss the appeal as frivolous.
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Dorn, an inmate at South Woods State Prison in Burlington, New Jersey, filed an
in forma pauperis civil rights action, 42 U.S.C. § 1983, against his public defender, Omar
Aguilar, Esquire, and the Atlantic County Public Defender’s Office. Dorn alleged that
Aguilar mishandled drug conspiracy charges against him, causing him to be incarcerated
and separated from his children, in violation of his Sixth Amendment right to effective
assistance of counsel. Dorm sought money damages. The District Court granted Dorn
leave to proceed in forma pauperis but dismissed his complaint with prejudice for failure
to state a claim on which relief may be granted, 28 U.S.C. § 1915(e)(2)(B)(ii). The Court
reasoned that public defenders are not persons subject to suit under § 1983.
Dorn appeals. Our Clerk granted him leave to appeal in forma pauperis and
advised him that the appeal was subject to summary dismissal under 28 U.S.C. §
1915(e)(2)(B) or summary action under Third Cir. LAR 27.4 and I.O.P. 10.6. He was
invited to submit argument in writing. Dorn filed a pro se brief, which was received by
the Clerk for the Court’s information only (because a briefing schedule has not issued).
We have treated the brief as argument in support of the appeal.
We will dismiss the appeal as frivolous. We have jurisdiction under 28 U.S.C. §
1291. An appellant may prosecute his appeal without prepayment of the fees, 28 U.S.C.
§ 1915(a)(1), but the in forma pauperis statute provides that the Court shall dismiss the
appeal at any time if the Court determines that it is frivolous, 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). A federal civil rights action under §
1983 may only be maintained against a defendant who acts under color of state law.
West v. Atkins, 487 U.S. 42, 48 (1988). As explained by the District Court, Dorn did not
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state a claim for relief against his public defender and the public defender’s office
because neither is a state actor for purposes of § 1983. “[A] public defender does not act
under color of state law when performing a lawyer’s traditional functions as counsel to a
defendant in a criminal proceeding.” Polk County v. Dodson, 454 U.S. 312, 325 (1981).
Dorn argues in his pro se brief that the District Court should have granted him leave to
amend in order to state a claim of legal malpractice against Aguilar for violating the
Rules of Professional Conduct, but such an amendment would have been futile, see
Grayson v. Mayview State Hospital, 293 F.3d 103, 108, 111 (3d Cir. 2002), for the
reason stated above and because a violation of New Jersey’s Rules of Professional
Conduct does not implicate “a right secured by the Constitution and laws of the United
States,” West, 487 U.S. at 48. See also Polk, 454 U.S. at 325.
For the foregoing reasons, we will dismiss the appeal as frivolous pursuant to 28
U.S.C. § 1915(e)(2)(B)(i).
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