MILLER v. BROWNING

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

STAMAR RICHARD MILLER, :

Plaintiff, :

:

v. : CIVIL ACTION NO. 23-CV-1712

:

ESQ. DEAN BROWNING, :

Defendant. :

MEMORANDUM

YOUNGE, J. JUNE 2, 2023

Staymar Richard Miller, a convicted prisoner housed at George W. Hill Correctional

Facility, filed this civil rights action pursuant to 42 U.S.C. § 1983. Named as Defendant is Deon

Browning, Esq., an attorney appointed to represent Miller in his criminal case in Delaware

County.1 Miller also seeks leave to proceed in forma pauperis. For the following reasons, the

Court will grant Miller leave to proceed in forma pauperis and dismiss his Complaint with

prejudice.

I. FACTUAL ALLEGATIONS2

Miller alleges that Browning provided ineffective assistance of counsel and violated his

Sixth Amendment rights. (Compl. at 2.) He asserts that Browning was appointed to be his

counsel on December 22, 2021 in accordance with the terms of the “Delaware County Indigent

Defense Plan.” (Id. at 3.) Miller claims he had little communication with Browning and that this

1 Browning’s first name is spelled incorrectly on the docket. In the accompanying Order,

the Clerk of Court will be directed to correct the spelling.

2 Unless otherwise provided, the factual allegations set forth in this Memorandum are

taken from Miller’s Complaint (ECF No. 1). The Court adopts the pagination assigned to the

Complaint by the CM/ECF docketing system.

caused him to contemplate proceeding pro se in his criminal case with Browning acting only as

stand-by counsel. (Id.) He ultimately decided not to pursue that option and went to trial

represented by Browning. (Id.) He requested Browning subpoena two officers from the Chester

Police Department but Browning never did so. (Id.) When Miller questioned him, Browning

“got upset and insulted [Miller] stating because it [is] a civil matter you [expletive deleted].”

(Id.) Miller alleges that he observed Browning gambling using his cell phone during trial

proceedings and, when Miller confronted him about it, he insulted him again and told him to shut

up and “you’re getting found guilty.” (Id.) Browning allegedly kept referring to the prosecutor

as his colleague before the jury and admitted to the jury that Miller was incarcerated. (Id.)

Browning allegedly offered no defense in his opening and closing arguments. (Id. at 3-4.) As

relief on his claim, Miller seeks money damages, a new trial on his criminal charges, and that

Browning be suspended from the practice of law. (Id. at 4.)

A review of public records indicates that Defendant Browning was appointed by the

Delaware County Court of Common Pleas to represent Miller in criminal proceedings that

resulted in Miller being convicted by a jury of involuntary deviate sexual intercourse, sexual

assault, burglary and related offenses on March 22, 2023. See Commonwealth v. Miller, CP-23-

CR-0000459-2021 (C.P. Delaware). Prior to his trial, Miller filed a pro se motion for new

counsel on April 27, 2022. Id. That motion, however, was withdrawn. Id.

II. STANDARD OF REVIEW

The Court grants Miller leave to proceed in forma pauperis. Accordingly, 28 U.S.C. §

1915(e)(2)(B)(ii) requires the Court to dismiss the Complaint if it fails to state a claim. The

Court must determine whether the Complaint contains “sufficient factual matter, accepted as

true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quotations omitted). ‘“At this early stage of the litigation,’ ‘[the Court will] accept the

facts alleged in [the pro se] complaint as true,’ ‘draw[] all reasonable inferences in [the

plaintiff’s] favor,’ and ‘ask only whether [that] complaint, liberally construed, . . . contains facts

sufficient to state a plausible [] claim.’” Shorter v. United States, 12 F.4th 366, 374 (3d Cir.

2021) (quoting Perez v. Fenoglio, 792 F.3d 768, 774, 782 (7th Cir. 2015)). Conclusory

allegations do not suffice. Iqbal, 556 U.S. at 678. Because Miller is proceeding pro se, the

Court construes the allegations of the Complaint liberally. Vogt v. Wetzel, 8 F.4th 182, 185 (3d

Cir. 2021). However, ‘“pro se litigants still must allege sufficient facts in their complaints to

support a claim.’” Id. (quoting Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir.

2013))).

III. DISCUSSION

Miller asserts claims for civil rights violations against Browning pursuant to § 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, 487 U.S. 42, 48 (1988).

Any constitutional claim against Browning based on his role as defense counsel in Miller’s

criminal case is not plausible and must be dismissed because an attorney performing the

traditional functions of counsel – whether privately retained, court-appointed, or a public

defender – is not a person acting under color of state law for purposes of § 1983. See Gannaway

v. Stroumbakis, 842 F. App’x 725, 730 (3d Cir. 2021) (per curiam) (noting that “[a] privately

retained attorney clearly does not act under color of state law, and . . . that ‘no color of state law

attache[s] to the functions of court-appointed counsel.’”) (citation omitted); see also Polk Cnty.

v. Dodson, 454 U.S. 312, 325 (1981) (“[A] public defender does not act under color of state law

when performing a lawyer’s traditional functions as counsel to a defendant in a criminal

proceeding.”); Clark v. Punshon, 516 F. App’x 97, 99 (3d Cir. 2013) (per curiam) (noting that a

court-appointed attorney is not a state actor for purposes of § 1983). “Attorneys performing their

traditional functions will not be considered state actors solely on the basis of their position as

officers of the court.” Angelico v. Lehigh Valley Hosp., Inc., 184 F.3d 268, 277 (3d Cir. 1999);

see also Webb v. Chapman, 852 F. App’x 659, 660 (3d Cir. 2021) (per curiam) (“[A]ttorneys

representing individuals in criminal proceedings generally are not state actors for purposes of §

1983.”); Singh v. Freehold Police Dep’t, No. 21-10451, 2022 WL 1470528, at *2 (D.N.J. May

10, 2022) (“Plaintiff[’s] dissatisfaction with the representation provided by Mr. Moschella does

not provide a basis for a civil rights claim against him.”).

For this reason, Miller’s claim against Browning for money damages will therefore be

dismissed with prejudice as any attempt to amend the claim would be futile. See Grayson v.

Mayview State Hosp., 293 F.3d 103, 108, 110 (3d Cir. 2002) (holding that district courts should

dismiss complaints under the PLRA with leave to amend “unless amendment would be

inequitable or futile”).3

3 To the extent that Miller seeks as relief on his claim against Browning that he receive a

new trial on the charges for which he was convicted, that claim is not plausible for the additional

reason that such relief is not available for a § 1983 claim. See Preiser v. Rodriguez, 411 U.S.

475, 500 (1973) (“[W]hen a state prisoner is challenging the very fact or duration of his physical

imprisonment, and the relief he seeks is a determination that he is entitled to immediate release

or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas

corpus.”); Jaffery v. Atl. Cnty. Prosecutor’s Office, 695 F. App’x 38, 41-42 (3d Cir. 2017) (per

curiam) (“[T]o the extent Jaffery seeks dismissal of the charges against him as a result of

constitutional violations, such relief is only available through a writ of habeas corpus.”); Duran

v. Weeks, 399 F. App’x 756, 759 (3d Cir. 2010) (per curiam) (“[T]o the extent that Duran is

seeking dismissal of the charges against him as a result of constitutional violations, he is

essentially asking for relief only available through habeas corpus.”). This means that Miller

cannot pursue his request for a new trial in a civil rights action such as this one regardless of who

he has named as a defendant, but rather must file a habeas corpus petition if he seeks release on

the basis that his confinement is unconstitutional. See generally 28 U.S.C. § 2241.

BY THE COURT:

/s/ John Milton Younge

JOHN MILTON YOUNGE, J.

To the extent that Miller seeks as relief on his claim that Browning’s law license be

suspended or that he be disbarred from the practice of law, the Court has no authority to grant

such relief. See, e.g., Gintner v. O’Neill, No. 21-755, 2022 WL 4446368, at *1 n.1 (W.D. Wis.

Sept. 23, 2022) (stating that “the court is unaware of any authority that would allow it to grant”

as relief in a § 1983 case that the defendant attorney be disbarred).