Filed: Mar. 22, 2006
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 3-22-2006 Durham v. Erie Precedential or Non-Precedential: Non-Precedential Docket No. 05-4018 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "Durham v. Erie" (2006). 2006 Decisions. Paper 1398. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1398 This decision is brought to you for free and open access by the Opinions of the United St
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 3-22-2006 Durham v. Erie Precedential or Non-Precedential: Non-Precedential Docket No. 05-4018 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "Durham v. Erie" (2006). 2006 Decisions. Paper 1398. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1398 This decision is brought to you for free and open access by the Opinions of the United Sta..
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Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
3-22-2006
Durham v. Erie
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-4018
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"Durham v. Erie" (2006). 2006 Decisions. Paper 1398.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1398
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 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
NO: 05-4018
_______________
WARREN DURHAM, JR.,
Appellant
vs.
CITY AND COUNTY OF ERIE; ERIE COUNTY COURT; JUDGE SHAD
CONNELLY, in his capacity as Judge; JUDGE FRED P. ANTHONY, in his capacity as
Judge; KEVIN KALLENBACH, individually, in his capacity as Public Defender
_______________
Appeal From the United States District Court
For the Western District of Pennsylvania
(D.C. Civ. No. 04-cv-00198E)
District Judge: Honorable Sean J. McLaughlin
__________________
Submitted Under Third Circuit L.A.R. 34.1(a)
MARCH 13, 2006
Before: FISHER, ALDISERT AND WEIS, Circuit Judges.
Filed March 22, 2006
_______________________
OPINION
_______________________
PER CURIAM.
On May 27, 2004, we reversed the District Court’s denial of Appellant
Warren Durham’s petition for habeas corpus. See Durham v. Vaughn, No. 03-1809 (3d
Cir. May 27, 2004). As a result, Durham was retried, acquitted on all charges, and
released after serving approximately eight-and-a-half years in a Pennsylvania prison. He
brought this action pursuant to 42 U.S.C. § 1983 against his former defense attorney,
Kallenbach; Judges Anthony and Connelly; the Erie County Court of Common Pleas; and
the City of Erie. For the reasons that follow we will affirm the District Court’s order.
I.
The facts of this case are well detailed in prior opinions, thus we only
briefly recite them here. In 1996, Kallenbach was appointed to represent Durham on
charges of rape and other related crimes. Durham became suspicious that Kallenbach was
working “too closely” with the Prosecutor and moved for the appointment of new
counsel. A colloquy was held before Judge Connelly. Connelly denied Durham’s
request, and gave him the choice of either proceeding pro se or going ahead with
Kallenbach. Durham chose neither. Judge Connelly found that Durham’s refusal to be
represented by Kallenbach amounted to an express desire to proceed pro se, and entered
an order accordingly. At trial before Judge Anthony, Durham again complained that he
did not want to proceed pro se. Judge Connelly’s order precluded the appointment of a
new public defender, so the trial simply went forward and Durham refused to put on a
defense.
We eventually directed the District Court to grant Durham’s habeas
petition, finding that Judge Connelly forced Durham to represent himself in violation of
his right to counsel. Id. at *17. Durham was released from prison and brought the instant
suit under § 1983. Specifically, he seeks monetary, declaratory, and injunctive relief
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against the City of Erie and the Erie County Court for establishing a custom or policy of
denying the right to counsel without due process; against Judges Anthony and Connelly
for establishing the same custom or policy and being “deliberately indifferent” to his right
to counsel; and against Kallenbach for conspiring with Judge Connelly to deprive him of
his right to counsel. The Defendants moved to dismiss the complaint and District Court
granted the motions. Durham appealed.1
II.
A .Erie County Court, Judge Anthony, and Judge Connelly
On appeal Durham abandons any argument that he seeks monetary damages
against the judicial Defendants. Rather, he argues that his complaint seeks solely
declaratory and injunctive relief and that “the District Court had the power to grant it.”
We disagree. Durham can establish standing if “he has sustained or is immediately in
danger of sustaining some direct injury’ as a result of the challenged official conduct and
the injury or threat of injury must be both ‘real and immediate’ . . . .” City of Los
Angeles v. Lyons, 461 U.S. 95, 101-02 (1983) (citations omitted).
Standing upon a past injury exists only if it is still accompanied by present
adverse effects; i.e., the injury sustained from the challenged conduct is still ongoing. See
O’Shea v. Littleton, 414 U.S. 488, 495-96 (1974) (finding no standing where county
judge previously made discriminatory rulings against members of a class, but none was
1
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291 and exercise de novo
review. See Pryor v. Nat’l Collegiate Athletic Ass’n, 288 F.3d 548, 559 (3d Cir. 2002).
3
threatened with a future discriminatory ruling). Durham does not argue that he faces a
repeat of the injury. Even if he did present the argument, the possibility that Durham will
come before the same court on a matter requiring the appointment of counsel is too
speculative and conjectural for the purposes of Article III standing.
B. City of Erie
A municipality may be liable under § 1983 if the Plaintiff proves that a
policy or custom employed by the city resulted in a constitutional violation. See Monell
v. Dep’t of Soc. Servs., 436 U.S. 658, 694-95 (1978). Durham’s complaint includes
nothing more than a conclusory allegation that Erie has established an official policy or
custom to deprive defendants of their right to counsel. He provides only one incident as
an example, his own. See City of Oklahoma City v. Tuttle,
471 U.S. 808, 822-24 (1985)
(holding one incident not usually sufficient). Moreover, the complaint fails to allege the
existence of any actually enacted policy or explain how city custom could influence a
judicial determination. Durham fails to assert any facts that place the Defendant on
notice of the basic elements of his cause of action. See Langford v. City of Atlantic City,
235 F.3d 845, 847 (3d Cir. 2000). The claim was properly dismissed.
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C. Kallenbach
Generally, a public defender is not a state actor for the purposes of § 1983.
See Polk County v. Dodson, 454 U.S. 312, 325 (1981). However, defense counsel may
be sued under § 1983 if he conspires with a state actor, irrespective of whether the co-
conspiratorial state actor is himself immune from suit. See Tower v. Glover,
467 U.S.
914, 916 (1984); Dennis v. Sparks,
449 U.S. 24, 27-28 (1980).
Durham’s complaint sets forth the following claim:
Kevin Kallenbach, conspired with Defendants [sic] Connelly to deny
Plaintiff his constitutional right to counsel when he failed to appraise the
court of his lack of communication, irreconcilable conflict with Plaintiff,
and the information shared between he and assistant prosecutor Christopher
McElynn concerning the extortion of Plaintiffs’s family by the prosecutrix
in the criminal case.
Compl. at 6-7. The District Court held that under a fact-specific pleading
requirement, Durham failed to show that Kallenbach conspired with any of the other court
actors. Although the District Court incorrectly applied a fact-specific pleading standard,
see Alston v. Parker, 363 F.3d 229, 233 (3d Cir. 2004) (abrogating our cases applying a
fact-specific pleading requirement to civil rights cases), Durham still fails to sufficiently
allege a claim under Rule 8(a)’s more lenient notice-pleading standard. See
id., 363 F.3d
at 233 (quoting Swierkiewicz v. Sorema N.A.,
534 U.S. 506, 513 (2002).
Under the notice-pleading standard, a complaint must include more than
“conclusory allegations of concerted action . . . .” Abbott v. Latshaw, 164 F.3d 141, 148
(3d Cir. 1998). It must also contain at least some facts which could, if proven, permit a
5
reasonable inference of a conspiracy to be drawn. See Evancho v. Fisher, 423 F.3d 347,
353 (3d Cir. 2005);
Langford, 235 F.3d at 847.
The primary problem with Durham’s conspiracy allegations is that he
initially wrote to Kallenbach stating that he no longer wished to be represented by him.
Kallenbach then submitted a motion to withdraw, which Durham signed. He does not
allege, nor do the facts support, an inference that Kallenbach planned to withdraw on his
own volition or with the aid of either Judge Connelly or McElynn. Additionally, Durham
fails to allege any particular conversation or conduct that would establish a conspiracy
between Kallenbach and Judge Connelly. To the contrary, Durham argues that
Kallenbach failed to communicate with Judge Connelly. While this may be troubling, it
is not sufficient to infer a conspiracy.
We also note that, while not addressed by the District Court, Durham
attempts to allege that Kallenbach conspired with McElynn. McElynn is certainly a state
actor. See, e.g., Reitz v. County of Bucks, 125 F.3d 139, 147-48 (3d Cir. 1997)
(involving allegations of a private third-party acting in concert with county prosecutor).
Although Durham’s complaint alleges that Kallenbach and McElynn were aware of,
discussed, and withheld specific exculpating information, he does not assert, nor does any
portion of the record reflect, that this was intentionally orchestrated conduct.
For the foregoing reasons, Durham fails to state a claim upon which relief
can be granted. Accordingly, we will affirm the District Court’s judgment.
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