Filed: Feb. 19, 2009
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit 2-19-2009 Mark Fisher v. Roan Confer, Jr. Precedential or Non-Precedential: Non-Precedential Docket No. 08-3297 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "Mark Fisher v. Roan Confer, Jr." (2009). 2009 Decisions. Paper 1851. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1851 This decision is brought to you for free and open acces
Summary: Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit 2-19-2009 Mark Fisher v. Roan Confer, Jr. Precedential or Non-Precedential: Non-Precedential Docket No. 08-3297 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "Mark Fisher v. Roan Confer, Jr." (2009). 2009 Decisions. Paper 1851. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1851 This decision is brought to you for free and open access..
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Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
2-19-2009
Mark Fisher v. Roan Confer, Jr.
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-3297
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009
Recommended Citation
"Mark Fisher v. Roan Confer, Jr." (2009). 2009 Decisions. Paper 1851.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1851
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 2009 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
DLD-91 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-3297
MARK B. FISHER,
Appellant
v.
ROAN J. CONFER, JR.
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 08-cv-00778)
District Judge: Honorable Malcolm Muir
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
February 5, 2009
Before: BARRY, AMBRO and SMITH, Circuit Judges
(Opinion filed:February 19, 2009)
OPINION
PER CURIAM
Appellant Mark B. Fisher, a Pennsylvania state prisoner, filed an in forma pauperis
civil rights complaint under 42 U.S.C. § 1983 in United States District Court for the
Middle District of Pennsylvania, in which he alleged that his privately retained defense
attorney, Roan J. Confer, Jr., violated his constitutional rights. Fisher alleged that Confer
conspired with Lycoming County investigating officer Thomas Ungard, Jr., to bring about
Fisher’s conviction on drug charges. He alleged in the complaint that Ungard had been
indicted by the state Attorney General and dismissed from a drug task force.
In an order filed on April 29, 2008, the District Court dismissed the complaint
without prejudice under 28 U.S.C. § 1915(e)(2)(B).1 The District Court explained that a
federal civil rights action under § 1983 may only be maintained against a defendant who
acts under color of state law, West v. Atkins, 487 U.S. 42, 48 (1988), and a privately
retained attorney is not a “state actor” for purposes of § 1983 when performing the
traditional functions of defense counsel in a criminal proceeding, Polk County v. Dodson,
454 U.S. 312 (1981). Noting that liability would attach if a private party conspired with a
state actor, Dennis v. Sparks,
449 U.S. 24, 27-28, the District Court held that Fisher’s
vague allegations of a conspiracy between defense counsel and the police were frivolous.
Fisher was given thirty (30) days to amend his complaint or suffer dismissal.
1
Section 1915(e)(2) provides:
(2) Notwithstanding any filing fee, or any portion thereof, that may have
been paid, the court shall dismiss the case at any time if the court
determines that – ... (B) the action or appeal – (i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or (iii) seeks
monetary relief against a defendant who is immune from such relief.
28 U.S.C. § 1915(e)(2)(B).
2
Fisher filed one item within thirty days as required by the District Court’s order,
an item titled “Motion for Amendment Supplemental Pleading for all Discovery in
Orphans’ Court ... in the Matter of Delores R. Fisher, etc.” He filed one other item on the
thirty-first day (May 30, 2008), a 10-page motion to amend the complaint (Docket Entry
No. 9), as well as numerous exhibits from matters pertaining to his state court
prosecution. On June 2, 2008, the District Court dismissed the case under 28 U.S.C. §
1915(e)(2)(B), concluding that Fisher’s timely submission apparently concerning an
estates matter would not suffice as an amendment to cure the defects in his original
complaint.
Fisher then filed a “Motion for Objection of Order, etc.,” in which he called the
court’s attention to his 10-page motion to amend the complaint, and asked the court to
give it consideration as an attempt to comply with the original order granting him
permission to amend. See Docket Entry 12. He also resubmitted the motion to amend the
complaint. See Docket Entry No. 13. In an order filed on June 13, 2008, the District
Court stood by its original decision that the action could not be maintained under § 1983.
The court stated that the most recent submissions were rambling and incomprehensible,
and not in compliance with Federal Rule of Civil Procedure 8. For example, Fisher had
failed to specify the particular conduct of each defendant named, including the date or
dates of the alleged constitutional violations, and he still had not set forth a claim upon
which relief may be granted. The court also faulted Fisher for not filing an amended
3
complaint by the thirty-day deadline, and filing instead an irrelevant item concerning an
estates matter. The two submissions were ordered stricken from the record.
Fisher tried one last time to amend his complaint, and submitted one more motion,
explaining generally that a conspiracy existed among his defense counsel, the
investigating police officers, and an assistant district attorney, the purpose of which was
to secure his conviction by means of entrapment. See Docket Entry No. 16. In this
motion, Fisher claimed that one of the investigating officers “drugged” the Coke and
cheeseburgers given to him in the police interrogation room, which caused him to give a
videotaped confession. The motion also contained an explanation of sorts of the estates
matter, which happened to involve his mother.
On July 14, 2008, the District Court ordered that this item be stricken from the
record. Once again, the court noted that the deadline for amending the complaint had
passed, but the court also reiterated its previous reasons for dismissing Fisher’s case
under 28 U.S.C. § 1915(e)(2)(B). The court pointed out that leave to amend had been
granted, but Fisher was unable to submit an amendment adequate to survive dismissal
under the in forma pauperis statute. Fisher was advised to file his notice of appeal, and he
did so on July 30, 2008.
Our Clerk granted Fisher leave to appeal in forma pauperis and advised him that
his appeal was subject to summary dismissal under 28 U.S.C. § 1915(e)(2)(B) or
summary affirmance under Third Cir. LAR 27.4 and I.O.P. 10.6. He was invited to
4
submit argument in writing, but he has not done so.
We will dismiss the appeal as frivolous. We have jurisdiction under 28 U.S.C. §
1291. An appellant may prosecute his appeal without prepayment of the fees, 28 U.S.C. §
1915(a)(1), but the in forma pauperis statute provides that the Court shall dismiss the
appeal at any time if the Court determines that it is frivolous, 28 U.S.C. §
1915(e)(2)(B)(i). An appeal is frivolous when it lacks an arguable basis either in law or
fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). As the District Court noted,
Fisher’s defense attorney is not a state actor for § 1983 purposes, Polk County,
454 U.S.
312, but, if a private defense attorney “is a willful participant in joint action with the State
or its agents,” that person is acting under color of state law for purposes of § 1983,
Dennis,
449 U.S. 27-28.
However, the in forma pauperis statute gives courts “the unusual power to pierce
the veil of the complaint’s factual allegations,” Denton v. Hernandez, 504 U.S. 25, 32
(1992) (quoting
Neitzke, 490 U.S. at 327), and dismiss those complaints with factual
contentions that are clearly baseless,
id. We have carefully reviewed Fisher’s 10-page
“Motion For Amendment Supplemental Pleading,” which he appears to have intended as
an amended complaint, and we conclude, as did the District Court, that the amendment
did not cure the defects in the original complaint. The original complaint was subject to
dismissal for the reasons given by the District Court, and thus this appeal is frivolous.
For the foregoing reasons, we will dismiss the appeal as frivolous pursuant to 28
5
U.S.C. § 1915(e)(2)(B)(i). Appellant’s motion for appointment of counsel is denied as
moot.
6
