TILLMAN v. MALLIS

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

BOBBY LEE TILLMAN, JR., :

Plaintiff, :

:

v. : CIVIL ACTION NO. 25-CV-2597

:

PAUL MALLIS, :

Defendant. :

MEMORANDUM

Pappert, J. JULY 21, 2025

Incarcerated pro se plaintiff Bobby Lee Tillman commenced this civil action by

filing a complaint against Paul Mallis, seeking relief pursuant to 42 U.S.C. § 1983 for

alleged violations of his constitutional rights. (ECF No. 1.) For the following reasons,

the Court dismisses the Complaint for failure to state a claim.

I1

Tillman was arrested on criminal charges on May 29, 2024, and tried in the

Montgomery County Court of Common Pleas in May 2025. See Commonwealth v.

Tillman, CP-46-CR-0004821-2024 (C.P. Montgomery). A jury found Tillman guilty of

some charges and not guilty of others, and he now awaits sentencing on August 4, 2025,

on the offenses of which he was convicted. (Id.) Mallis is his lawyer in that case. (Id.)

Tillman filed this lawsuit against Mallis in May 2025. (Compl. at 2.) Tillman

claims that, between May 30, 2024, and April 22, 2025, he was denied “the right to have

proper representation to prove [his] innocence,” and that his attorney “is conspiring

1 The factual allegations are taken from the Complaint (ECF No. 1) and public dockets,

which may be considered by the Court in determining whether Tillman has stated a viable

claim. See Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006). The Court

adopts the sequential pagination supplied by the CM/ECF docketing system.

with the prosecutor to insure [that he is] convicted and not given a fair trial.” (Id. at 5.)

He appears to contend that his lawyer was operating “[i]n the capacity of an attorney

for the State of Pa.” and that the assistant district attorney was working “[i]n the

capacity as a prosecutor for the State of Pa., County of Mont[gomery].” Tillman alleges

violations of his constitutional rights under the Fifth, Sixth, and Fourteenth

Amendments. (Id. at 4.) As a result, he has allegedly suffered “mental anguish and

emotional distress” and asks the Court to ensure he receives “a fair, unbiased hearing”

and appointment of new counsel. (Id. at 5.)

II

Although Tillman paid the filing fee in full, the Court has the authority to screen

his Complaint pursuant to 28 U.S.C. § 1915A. See Shane v. Fauver, 213 F.3d 113, 116

n.2 (3d Cir. 2000) (recognizing that the district courts have the authority to screen a

prisoner complaint pursuant to § 1915A(b)(1) even if the prisoner is not proceeding in

forma pauperis). Section 1915A requires that the Court “review, before docketing, if

feasible or, in any event, as soon as practicable after docketing, a complaint in a civil

action in which a prisoner seeks redress from a governmental entity or officer or

employee of a governmental entity.” 28 U.S.C. § 1915A(a). In doing so, the Court must

dismiss a complaint or any portion thereof that “is frivolous, malicious, or fails to state

a claim upon which relief may be granted,” id. § 1915A(b)(1), or that “seeks monetary

relief from a defendant who is immune from such relief,” id. § 1915A(b)(2).

Whether a complaint fails to state a claim is governed by the same standard

applicable to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6), which

requires the Court to 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 the screening stage, the

Court accepts the facts alleged in the pro se complaint as true, draws all reasonable

inferences in the plaintiff’s favor, and considers whether the complaint, liberally

construed, contains facts sufficient to state a plausible claim. Shorter v. United States,

12 F.4th 366, 374 (3d Cir. 2021), abrogation on other grounds recognized by Fisher v.

Hollingsworth, 115 F.4th 197 (3d Cir. 2024). Conclusory allegations do not suffice.

Iqbal, 556 U.S. at 678. Because Tillman is proceeding pro se, the Court construes his

allegations liberally. Vogt v. Wetzel, 8 F.4th 182, 185 (3d Cir. 2021) (citing Mala v.

Crown Bay Marina, Inc., 704 F.3d 239, 244-45 (3d Cir. 2013)).

III

Tillman sues pursuant to 42 U.S.C. § 1983, the vehicle by which federal

constitutional claims may be brought in federal court. “Section 1983 does not, by its

own terms, create substantive rights; it provides only remedies for deprivations of

rights established elsewhere in the Constitution or federal laws.” Kneipp v. Tedder, 95

F.3d 1199, 1204 (3d Cir. 1996). “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).

Tillman premises his constitutional claims on a vague accusation that his

attorney “conspired” with the state prosecutor to ensure his conviction. However, these

claims are not only factually threadbare but fatally flawed because they are asserted

against a party who is not a state actor. Groman v. Twp. of Manalapan, 47 F.3d 628,

638 (3d Cir. 1995) (explaining that state action is a “threshold issue” for § 1983 claims).

An attorney performing the traditional functions of counsel—whether privately

retained, court-appointed, or a public defender—is not a state actor 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). That is because “[a]ttorneys 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.”).

Although “[a] private party ‘who corruptly conspire[s]’ with a state official will be

considered a state actor under § 1983,” Kitko v. Young, 575 F. App’x 21, 26 (3d Cir.

2014) (per curiam) (quoting Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615

F.3d 159, 175-76 (3d Cir. 2010)), the mere mention of “conspiracy” is not sufficient to

plead one. “[T]o properly plead an unconstitutional conspiracy, a plaintiff must assert

facts from which a conspiratorial agreement can be inferred.” Great W. Mining &

Mineral Co., 615 F.3d at 178. “[A] bare assertion of conspiracy will not suffice.” Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). “A conspiracy cannot be found from

allegations of judicial error, ex parte communications (the manner of occurrence and

substance of which are not alleged) or adverse rulings absent specific facts

demonstrating an agreement to commit the alleged improper actions.” Capogrosso v.

The Supreme Court of New Jersey, 588 F.3d 180, 185 (3d Cir. 2009) (per curiam)

(quoting Crabtree v. Muchmore, 904 F.2d 1475, 1480-81 (10th Cir. 1990)). Tillman

alleges no facts to support conclusory assertion that his lawyer and the prosecution

conspired to ensure he was found guilty. In fact, the public dockets show Tillman was

tried by a jury and acquitted on some charges. Tillman, CP-46-CR-0004821-2024.

Given the inadequate support for Tillman’s assertion of a conspiracy, his attorney

cannot be considered a state actor on that basis, and the Court will dismiss all claims

against Mallis pursuant to 28 U.S.C. § 1915A(b)(1).2 See e.g., Pittman v. Martin, 569 F.

App’x 89, 91-92 (3d Cir. 2014) (per curiam) (explaining that “conclusory allegations of

conspiracy” were insufficient to justify treating public defenders as state actors).

IV

For the reasons stated, the Court will dismiss Tillman’s Complaint. However,

nothing in this Memorandum should be construed to prevent Tillman from raising his

constitutional arguments in his state criminal case, which is the proper forum for

Tillman to challenge the validity of the criminal charges asserted against him and

provide him an opportunity to present his constitutional defenses.3 See also Rushing v.

Pennsylvania, 637 F. App’x 55, 58 n.4 (3d Cir. 2016) (per curiam) (“The District Court’s

2 Moreover, Tillman’s prayer for relief consists solely of an improper request for injunctive

relief. (See Compl. at 5 (requesting that the Court “[g]rant [him] the right to have a fair,

unbiased hearing and appointment [of] new counsel.”)). The Court may not intervene in

Tillman’s ongoing state proceedings. See Younger v. Harris, 401 U.S. 37, 43-44 (1971).

3 The Court expresses no opinion on the merits of those arguments.

dismissal of his § 1983 complaint should not constitute a bar to any collateral attacks

by Rushing against his state proceedings.”).

An appropriate Order follows.

BY THE COURT:

/s/ Gerald J. Pappert

Gerald J. Pappert, J.