Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-28-2007

Ojserkis v. Aprile
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1727




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Recommended Citation
"Ojserkis v. Aprile" (2007). 2007 Decisions. Paper 528.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/528


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AMENDED CLD-308                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 07-1727
                                   ________________

                                MAURICE J. OJSERKIS,

                                             Appellant

                                              v.

      DOMINIC J. APRILE; BATHGATE WEGENER & WOLF; LAWRENCE
   E. BATHGATE; PETER H. WEGENER; WILLIAM J. WOLFE; DOROTHY F.
   MCCROSSON; TAHT, STANTON & MCCROSSON, P.C.; DANIEL J. YOUNG
                  ____________________________________

                     On Appeal From the United States District Court
                               For the District of New Jersey
                               (D.C. Civ. No. 06-cv-05089 )
                      District Judge: Honorable Renee Marie Bumb
                     _______________________________________

 Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B) or Summary Action
                    Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                    July 19, 2007

          Before:    RENDELL, SMITH AND JORDAN, CIRCUIT JUDGES.

                                 (Filed August 28, 2007)
                               _______________________

                                       OPINION
                               _______________________

PER CURIAM

       Maurice Ojserkis appeals from the order of the United States District Court for the

District of New Jersey dismissing his civil rights complaint pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(ii) for failure to state a claim upon which relief may be granted.
       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Because

Ojserkis has been granted in forma pauperis status pursuant to 28 U.S.C. § 1915, we

review this appeal for possible dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B). We will

dismiss an appeal if it has no arguable basis in law or fact. Neitzke v. Williams, 

, 325 (1989).

       Ojserkis filed a complaint pursuant to 42 U.S.C. § 1983, alleging that five of the

Appellees, four private attorneys and a law firm, entered into a tainted retainer agreement

with him. Ojserkis alleges that as a result of the aforementioned Appellees’ conflict of

interest and negligence, he was subject to an unwanted arbitration hearing with the

remaining Appellees, who are also private attorneys and a law firm. The District Court

dismissed Ojserkis’s complaint pursuant § 1915(e)(2)(B)(ii) without an opportunity to

amend.

       We have held when a complaint is dismissed for failure to state a claim upon

which relief may be granted, a plaintiff should be granted the opportunity to amend his

complaint unless amendment would be futile. Shane v. Fauver, 

, 116 (3d

Cir. 2000). Here, the District Court concluded that any amendment to Ojserkis’s

complaint would have been futile because Appellees were private attorneys and private

law firms, and, thus, were not acting under the color of state law as is required by § 1983.

We agree. “[A] lawyer representing a client is not, by virtue of being an officer of the

court, a state actor ‘under color of state law’ within the meaning of § 1983." Polk County



                                             2
v. Dodson, 

, 318 (1981). Because the Appellees are not state actors,

Ojserkis has failed to state a claim under § 1983. No amendment can cure this defect.

      For the foregoing reasons, we will dismiss this appeal pursuant to 28 U.S.C.

§ 1915(e)(2)(B). Ojserkis’s motion for appointment of counsel is denied.




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