Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-8-2005

Harmon v. Secretary State DE
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2801




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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                     NO. 04-2801
                                  ________________

                               CHRISTIAN HARMON,

                                                  Appellant

                                           v.

  STATE OF DELAWARE SECRETARY OF STATE; HENLEY GRAVES, Judge,
Individually and in his capacity as Judge in the Superior Court of the State of Delaware,
Sussex County; MICHAEL FARNAN, Individually and in his capacity as an Attorney at
Law; MERRITT BURKE III, Asst Public Defender, Individually and in his capacity as a
Public Defender for the State of Delaware, Sussex County; ATTORNEY GENERAL OF
                             THE STATE OF DELAWARE

                      ___________________________________
                    On Appeal From the United States District Court
                               For the District of Delaware
                              (D.C. Civ. No. 03-cv-00759)
                      District Judge: Honorable Gregory M. Sleet
                    _______________________________________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 December 21, 2004

                 Before: ALITO, SMITH and ROSENN, Circuit Judges

                               (Filed: November 8, 2005)

                              _______________________

                                     OPINION
                              _______________________
PER CURIAM

       In 1999, Christian Harmon was arrested in Delaware on drug-related charges.

During his criminal proceedings, Harmon was apparently represented by several

attorneys, including Michael Farnan and Sussex County Public Defender Merritt Burke

III. On June 15, 1999, Harmon pled guilty to possession with intent to deliver marijuana

before Superior Court Judge Henley Graves, and entered the Delaware Superior Court

Drug Diversion Program.1

       In July 2003, Harmon filed the underlying complaint pursuant to 42 U.S.C. § 1983

in the United States District Court for the District of Delaware regarding his 1999

criminal proceedings. In his complaint, Harmon alleged that Farnan violated his rights to

due process, equal protection, and the effective assistance of counsel by engaging in the

unauthorized practice of law.2 Harmon also alleged that Burke violated his right to the

effective assistance of counsel by failing to question witnesses or provide their statements

to the prosecution. Finally, Harmon alleged that Judge Graves violated his rights to due

process and equal protection by allowing Farnan to engage in the unauthorized practice of

law. Harmon sought compensatory and punitive damages, as well as a declaratory

judgment that his 1999 conviction is invalid. On May 21, 2004, the District Court sua



       1
         It is not clear from the record how long Harmon was to participate in the
diversion program, or whether he successfully completed it.
       2
         Harmon seems to allege that Farnan is an attorney, but that he has not been
properly admitted to the Delaware bar.

                                             2
sponte dismissed Harmon’s complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). This timely

appeal followed.

       To state a viable § 1983 claim, a plaintiff must allege facts showing a deprivation

of a constitutional right, privilege or immunity by a person acting under color of state

law.3 See Daniels v. Williams, 

, 330 (1986). 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, 

, 318 (1991). Accordingly, because Farnan and Burke were not

“state actors,” the District Court properly dismissed Harmon’s § 1983 damages claims

against them.

       Likewise, it is a well-established principle that a judge is absolutely immune from

suit for damages under § 1983 when he acts in a judicial capacity. “A judge will not be




       3
          In an argument made for the first time on appeal, Harmon contends that the
defendants conspired to deprive him of his constitutional rights. Because this issue was
not raised before the District Court, it has been waived and we decline to address it on the
merits. We do note, however, that if this issue were properly before us, it would fail.
Allegations of conspiracy may form the basis of a § 1983 claim. “However, a plaintiff
must allege specific facts showing an agreement and concerted action amongst the
defendants. ‘Conclusory allegations of conspiracy are insufficient to state a valid § 1983
claim.’” Tonkovich v. Kansas Bd. Of Regents, 

, 533 (10th Cir.1998)
(quoting Hunt v. Bennett, 

, 1266 (10th Cir. 1994)). Thus, to state a
conspiracy-based § 1983 claim, a plaintiff must allege the specific conduct violating his
or her rights, the time and place of that conduct, and the identity of the responsible
officials. See Oatess v. Sobolevitch, 

, 431 n. 8 (3d Cir. 1990). Harmon has
failed to allege such facts, or any facts for that matter, to substantiate an allegation of
conspiracy.

                                             3
deprived of immunity because the action he took was in error, was done maliciously, or

was in excess of his authority; rather, he will be subject to liability only when he has acted

in the ‘clear absence of all jurisdiction.’” Stump v. Sparkman, 

, 356-57

(1978) (citation omitted). Here, Harmon’s complaint consists entirely of allegations

regarding the actions taken by Judge Graves in his judicial capacity while presiding over

Harmon’s 1999 criminal proceedings. Harmon makes no allegations that would support a

determination that Judge Graves acted in the complete absence of all jurisdiction.

Accordingly, the District Court properly dismissed Harmon’s damages claim against

Judge Graves.

       Finally, we agree with the District Court’s determination that, to the extent

Harmon seeks to challenge the fact or duration of his conviction or sentence, his sole

remedy is a federal petition for writ of habeas corpus. See Preiser v. Rodriguez, 

, 488-90 (1973). See also Heck v. Humphrey, 

, 487 (1994); Edwards v.

Balisok, 

, 648 (1997).

       Accordingly, for the foregoing reasons we will affirm the District Court’s May 21,

2004 order dismissing Harmon’s complaint. The motion by Harmon to strike the

appellees’ supplemental appendix is denied.




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