Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-7-2008

Hagins v. Spina
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3166




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"Hagins v. Spina" (2008). 2008 Decisions. Paper 1470.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1470


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ALD-142                                                          NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 07-3166
                                      ___________

                                   SEAN L. HAGINS,
                                                            Appellant

                                            v.

                           FRANK SPINA II, Frank Spina II
                Attorney being sued in his individual and official capacity
                      ____________________________________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                              (D.C. Civil No. 07-cv-01625)
                      District Judge: Honorable Gene E.K. Pratter
                      ____________________________________

         Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
        or Summary Action Pursuant to Third Circuit L.A.R. 27.4 and I.O.P. 10.6
                                   February 28, 2008

         Before: SLOVITER, FISHER and HARDIMAN, CIRCUIT JUDGES.

                                 (Filed: March 7, 2008)
                                        _________

                                        OPINION
                                        _________

PER CURIAM

       Sean L. Hagins, an inmate at the Federal Detention Center in Philadelphia, appeals

from an order of the United States District Court for the Eastern District of Pennsylvania
granting the defendant’s motion to dismiss. For the following reasons, we will dismiss

Hagins’s appeal.

       On January 16, 2007, Hagins, proceeding pro se, filed a civil rights complaint,

under 42 U.S.C. § 1983, in the District Court. In the complaint, Hagins alleged that he

had retained Frank Spina, an attorney, to represent him in a criminal case for a fee of

$5,000. Spina, however, according to Hagins, quit the case after Hagins’s initial

appearance in court. Due to this turn of events, Hagins sought a return of $4,000 of his

initial payment to Spina. Spina filed a motion to dismiss the case which the District Court

granted on July 2, 2007. The District Court held that Hagins had failed to state a claim,

under Federal Rule of Civil Procedure 12(b)(6), against Spina because Spina’s

representation of Hagins did not constitute an act under color of state law. Moreover, the

District Court noted that even if Hagins’s complaint were construed as raising an issue of

Pennsylvania law, it failed to meet the necessary threshold amount in controversy

requirement to invoke the District Court’s diversity jurisdiction. See 28 U.S.C. § 1332.

This timely appeal followed.

       We have jurisdiction under 28 U.S.C. § 1291. “In reviewing the grant of a motion

to dismiss for failure to state a cause of action, we apply the same standard as did the

district court, accepting the allegations of the complaint as true and construing those

allegations, in a light most favorable to the plaintiff. [] This standard does not vary where

the action is brought pursuant to 42 U.S.C. § 1983.” Dykes v. Se. Pa. Transp. Auth., 68



                                              

, 1566 n.1 (3d Cir. 1995) (citation omitted). An appellant may prosecute his

appeal without prepayment of the fees under 28 U.S.C. § 1915(a)(1), but we must dismiss

the appeal if we determine that it “lacks an arguable basis either in law or in fact.” See

Neitzke v. Williams, 

, 325 (1989); see also 28 U.S.C. § 1915(e)(2)(B)(i).

       We agree with the District Court’s analysis. A viable § 1983 claim must be based

on a right secured by the Constitution and laws of the United States. Further, “[t]o make

a prima facie case under § 1983, the plaintiff must demonstrate that a person acting under

color of law deprived him of a federal right.” Berg v. County of Allegheny, 

, 268 (3d Cir. 2000) (citing Groman v. Twp. of Manalapan, 

, 633 (3d Cir.

1995)). Under the circumstances related by his complaint, Hagins cannot show the

deprivation of a constitutional right through state action. As the District Court noted,

Spina’s representation of Hagins does not render Spina a “person acting under color of

state law” under § 1983. See Polk v. County of Dodson, 

, 325 (1981) (a

private attorney, even if appointed and paid for by the state, is not acting under color of

state law when performing his function as counsel). Further, Spina’s actions denied

Hagins the benefit of no identifiable constitutional right.

       Given our preceding discussion, we agree with the District Court that there was no

need to provide Hagins an opportunity to further amend his complaint because any such

amendment would have proved futile. See Grayson v. Mayview State Hosp., 

, 108 (3d Cir. 2002) (noting that amendment “must be permitted . . . unless it would



                                              3
be inequitable or futile”); see also Shane v. Fauver, 

, 115-16 (3d Cir. 2000).

The complaint is devoid of any facts from which one could infer a violation of § 1983,

and we cannot conceive of any viable federal claim that Hagins could possibly have

brought.

       Because Hagins failed to make sufficient allegations to establish a violation of

federal law, his appeal lacks arguable legal merit. Accordingly, it will be dismissed under

28 U.S.C. § 1915(e)(2)(B)(i).




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