Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-21-2009

Lafayette Brown v. David Martin, Jr.
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3946




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Recommended Citation
"Lafayette Brown v. David Martin, Jr." (2009). 2009 Decisions. Paper 1508.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1508


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DLD-136                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 08-3946


                                LAFAYETTE BROWN,
                                             Appellant

                                           v.

                                DAVID C. MARTIN, Jr.


                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                        (D.C. Civil Action No. 2:08-cv-01120)
                    District Judge: Honorable Terrence F. McVerry


                  Submitted for Possible Summary Action Pursuant to
                       Third Circuit LAR 27.4 and I.O.P. 10.6
                                    March 19, 2009

                 Before: BARRY, AMBRO and SMITH, Circuit Judges

                             (Opinion filed April 21, 2009)


                                       OPINION


PER CURIAM

      Appellant Lafayette Brown appeals from a District Court order dismissing his

complaint pursuant to 28 U.S.C. § 1915(e). Because Brown’s appeal does not present a

substantial question, we will summarily affirm the judgment of the District Court. See 3d
Cir. L.A.R. 27.4; I.O.P. 10.6.

       Brown, proceeding pro se, initiated a civil rights action against Appellee David C.

Martin. Brown apparently suffered multiple serious injuries as a result of an accident that

took place in 1977, while he was employed by the City of Pittsburgh. Although his

allegations are unclear, Brown appears to argue that Martin, an attorney who represented

him in a workers’ compensation matter in 1995, violated Brown’s civil rights by

accepting bribes and by wrongfully retaining a portion of Brown’s monthly workers’

compensation check.

       The District Court referred the matter to a Magistrate Judge, who granted Brown

permission to proceed in forma pauperis. The Magistrate Judge also filed a Report and

Recommendation recommending that Brown’s complaint be dismissed pursuant to 28

U.S.C. § 1915(e)(2)(B)(ii). The Magistrate Judge stated that she was unable to identify

any basis for federal jurisdiction.

       Brown objected to the Report and Recommendation.1 On September 15, 2008,

after conducting a de novo review, the District Court adopted the Magistrate Judge’s

Report and Recommendation and dismissed the Complaint pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(ii). Brown filed a timely appeal.

        We exercise plenary review over the District Court’s dismissal under

§ 1915(e)(2)(B). See Allah v. Seiverling, 

, 223 (3d Cir. 2000). Upon


   1
     Although Brown filed his objections in a related action, the District Court considered
the objections as if they were also addressed to this action.

                                             2
review, we conclude that the District Court properly dismissed Brown’s complaint.

       The only arguable federal claim presented by Brown’s complaint would arise

under 42 U.S.C. § 1983. “To state a claim under § 1983, a plaintiff must allege the

violation of a right secured by the Constitution and laws of the United States, and must

show that the alleged deprivation was committed by a person acting under color of state

law.” West v. Atkins, 

, 48 (1988). Brown failed to successfully raise a

§ 1983 claim.

       At most, it appears that Brown’s allegations would support state law causes of

action. See, e.g., Baker v. McCollan, 

, 146 (1979) (tort claims must be

pursued in state courts under traditional state law principles, not under § 1983). Although

Brown cites to the First and Fourteenth Amendments, Brown fails to set forth any facts

supporting a constitutional deprivation. Further, Brown does not allege that Martin is a

state actor, see Harvey v. Plains Twp. Police Dep’t, 

, 189 (3d Cir. 2005), and

the fact that Martin acted as Brown’s legal counsel does not render Martin a “person

acting under color of state law” for purposes of § 1983. See Polk v. County of Dodson,

, 325 (1981) (an attorney does not act under color of state law when

performing his function as counsel). Thus, Brown failed to state a claim on which relief

may be granted, and the District Court properly dismissed his complaint pursuant to 28

U.S.C. § 1915(e)(2)(B)(ii).




                                             3
Brown’s appeal does not present a substantial question. We will therefore summarily

affirm the judgment of the District Court. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.




                                             4