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


5-12-2005

Winters v. Devecka
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4639




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Recommended Citation
"Winters v. Devecka" (2005). 2005 Decisions. Paper 1201.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1201


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DPS-193                                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                     NO. 04-4639
                                  ________________

                                STEPHEN J. WINTERS,
                                           Appellant

                                              v.

                               JOSEPH M. DEVECKA
                      ____________________________________

                    On Appeal From the United States District Court
                        For the Middle District of Pennsylvania
                              (D.C. Civ. No. 04-cv-01802)
                        District Judge: Honorable Yvette Kane
                    _______________________________________


           Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
                                     April 7, 2005
             Before: ROTH, BARRY AND SMITH, CIRCUIT JUDGES

                                 (Filed: May 12, 2005)


                              _______________________

                                      OPINION
                              _______________________

PER CURIAM.

      Stephen Winters, currently an inmate at the State Correctional Institution in

Waynesburg, Pennsylvania, filed a complaint pursuant to 42 U.S.C. § 1983 against Joseph

Devecka, a private attorney who represented Winters in his state criminal proceedings
relating to, inter alia, charges of cocaine possession. Winters sought damages and release

from confinement for alleged constitutional violations with regard to Devecka’s

representation.

       The Magistrate Judge found that because Devecka is not a state actor, Winters’

constitutional claims necessarily fail. See Polk County v. Dodson, 

, 325

(1981). Alternatively, the Magistrate Judge found that because success on Winters’

claims would necessarily imply the invalidity of his criminal conviction in state court, his

claims are premature. See Heck v. Humphrey, 

(1994). Therefore, the

Magistrate Judge recommended dismissing Winters’ complaint. Winters objected,

contending, inter alia, that the Magistrate Judge was “biased” and sought to fix this case,

and should have recused himself. The District Court agreed with the Magistrate Judge

that because Devecka is not a state actor, Winters’ § 1983 complaint fails to state a claim

upon which relief can be granted. In addition, the court found that Winters’ contention

that the Magistrate Judge should have recused himself lacks merit. Accordingly, the

District Court overruled Winters’ objections, adopted the Report and Recommendation,

and dismissed the complaint.

       Winters timely filed this appeal. We have jurisdiction pursuant to 28 U.S.C. §

1291. Winters has been granted leave to proceed in forma pauperis on appeal. When an

appellant proceeds in forma pauperis, this Court must dismiss the appeal if it is

“frivolous.” 28 U.S.C. § 1915(e)(2)(B)(i). A frivolous appeal has no arguable basis in

law or fact. Neitzke v. Williams, 

, 325 (1989). After a review of the record,
we will dismiss this appeal as frivolous.

       Winters cannot show that Devecka acted under the color of state law or that

Devecka’s actions are fairly attributable to the state. See 

(holding that a public defender does not act under the color of state law within the

meaning of § 1983 when functioning as counsel to a defendant in a criminal proceeding).

Therefore, the District Court properly dismissed Winters’ complaint for failure to state a

claim upon which relief can be granted.

       In sum, because Winters’ appeal lacks arguable merit, we will dismiss this appeal

pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).