WETZEL

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

SAMUEL B. RANDOLPH, IV, )

)

Plaintiff, )

) Civil Action No. 2:19-790

v. )

) Judge Mark R. Hornak

JOHN WETZEL, et al., ) Magistrate Judge Patricia L. Dodge

)

Defendants. )

REPORT AND RECOMMENDATION

I. Recommendation

Before the Court is the Motion to Dismiss (ECF 117) filed by Defendant Harry Cancelmi,

the former Public Defender of Greene County, under Rule 12(b)(6). It is respectfully recommended

that the Court grant this motion and dismiss with prejudice all claims Plaintiff Samuel B.

Randolph, IV brought against Defendant Cancelmi in the Third Amended Complaint (ECF 115).

Unfortunately, Defendant Cancelmi recently passed away. Also pending before the Court

is Plaintiff’s Motion to Substitute in his place Pamela Cancelmi, the Administratrix of his Estate,

under Rule 25(a)(1) (ECF 178). It is respectfully recommended that the Court deny this motion as

moot because none of the claims Plaintiff brings against Defendant Cancelmi survive the motion

to dismiss he filed before his passing.

II. Report

A. Relevant Procedural History

Plaintiff filed this lawsuit in 2019 in the United States District Court for the Eastern District

of Pennsylvania. At the time, he was proceeding pro se and was a state prisoner in the custody of

the Pennsylvania Department of Corrections (“DOC”), which was housing him at SCI Phoenix.

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In Plaintiff’s original complaint he named over fifty defendants and raised claims that

challenged the conditions of his confinement at SCI Phoenix and at SCI Greene (where the DOC

had previously housed him). The Eastern District Court held that the joinder of the claims

pertaining to the two correctional institutions was improper. Accordingly, it issued a memorandum

and order in which it severed the claims related to SCI Greene from those related to SCI Phoenix,

directed its Clerk of Court to open a new lawsuit with respect to the SCI Greene claims, and

transferred that new lawsuit to this Court where venue for the SCI Greene claims would be proper.

(ECF 1.)

After this civil action was opened in this Court, Plaintiff sought and was granted leave to

file an amended complaint. The First Amended Complaint (ECF 25) named around twenty-eight

defendants (not including John/Jane Doe defendants), and brought eighteen causes of action, most

of which challenged Plaintiff’s conditions of confinement at SCI Greene and asserted wrongdoing

on the part of DOC Secretary John E. Wetzel, SCI Greene officials, employees, and medical

personnel. Among other things, Plaintiff asserted that on several occasions when he was at SCI

Greene, he was unnecessarily force fed and subjected to the excessive use of force and was

retaliated against because he complained about the conditions of his confinement at SCI Greene.

Defendant Cancelmi, who at the time was the Public Defender of Greene County, is one of

the named defendants. Plaintiff’s allegations against him are based solely on Defendant

Cancelmi’s representation of Plaintiff during injunction proceedings initiated by the DOC in April

2017 in the Court of Common Pleas of Greene County (the “state court”). In that proceeding, the

DOC sought a court order to permit medical staff at SCI Greene to examine Plaintiff and provide

him with hydration and nutrition by means of a nasogastric tube. In the First Amended Complaint,

Plaintiff brought claims against Defendant Cancelmi under 42 U.S.C. § 1983, asserting that he

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violated Plaintiff’s rights because he was “operating under a conflict of interest” at the injunction

proceedings and had entered into a “backdoor agreement and stipulation” with the DOC to violate

Plaintiff’s rights in order to obtain an injunction permitting that he be force fed. (ECF 25, ¶¶ 214-

16.) Plaintiff also brought a § 1983 claim ostensibly against all defendants, alleging that they

conspired to retaliate against by intentionally separating him from his food in order to manufacture

a hunger strike against him and then torture him by force feeding him unnecessarily. (Id., ¶ 210.)

The DOC Defendants filed a motion for judgment on the pleadings under Rule 12(c) with

respect to certain claims asserted against them in the First Amended Complaint, and the Medical

Defendants and Defendant Cancelmi filed separate motions to dismiss under to Rule 12(b)(6). The

Court ultimately granted in part the DOC Defendants’ motion, and granted in full the motions filed

by the Medical Defendants and Defendant Cancelmi. (ECF 85, 90.) The claims asserted against

Defendant Cancelmi were dismissed without prejudice because Plaintiff failed to assert sufficient

facts to show that Defendant Cancelmi was acting “under color of state law” in his role as

Plaintiff’s attorney, which is a necessary component of a § 1983 claim.

Plaintiff was granted leave to file another amended complaint to attempt to replead those

claims asserted that were not dismissed with prejudice. (Id.; ECF 92.) He then filed the Second

Amended Complaint, which the Court struck because he failed to follow instructions for filing it.

(ECF 105.) Plaintiff, who at the time was still proceeding pro se, then filed the Third Amended

Complaint (ECF 115), which is the operative pleading. It consists of 93 pages with over 270

paragraphs, names approximately 27 defendants (not including John/Jane Doe defendants), and

asserts seven causes of action against one or more of the defendants. Only two claims are relevant

at this time. They are Count IV, a § 1983 claim of retaliation (id. at 65-71), and Count VII, a § 1983

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claim of conspiracy (id. at 81-90). These claims are brought against Defendant Cancelmi and most,

if not all, of the other defendants.

Plaintiff was later granted federal habeas relief, Randolph v. Sec’y Pennsylvania Dep’t of

Corr., 5 F.4th 362, 366 (3d Cir. 2021), and released from DOC custody. The Court then granted

Plaintiff’s request to stay this case because he was hospitalized and awaiting surgery. (ECF 127,

128.) Plaintiff later retained private counsel, who entered their appearance on his behalf, and the

stay in this case was lifted.1 (ECF 134, 137.) The DOC and Medical Defendants have filed their

respective answers (ECF 116, 125, 169) to the Third Amended Complaint2 and they and Plaintiff

are currently engaged in discovery.

Defendant Cancelmi has filed the pending Motion to Dismiss (ECF 117), which Plaintiff

opposes and which is fully briefed (ECF 118, 149, 151.) After Defendant Cancelmi’s recent death,

Plaintiff filed the pending Motion to Substitute in his place Pamela Cancelmi, the Administratrix

of his estate, under Rule 25(a)(1). (ECF 178.)

B. Standard of Review

At the pleading stage, Rule 8 requires a “short plain statement” of facts, not legal

conclusions, “showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Federal Rule

of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, for

“failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). The Supreme

Court held that, pertaining to Rule 12(b)(6)’s standard of review, a complaint must include factual

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

1 This case was also stayed for a period of time when Wellpath Holdings, Inc., the employer of some of the defendants,

was in bankruptcy proceedings. (ECF 153, 157.)

2 Plaintiff’s counsel opted not to move for leave to file a counseled amended complaint and decided to proceed with

the complaint filed pro se by their client.

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662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[W]ithout some

factual allegation in the complaint, a claimant cannot satisfy the requirement that he or she provide

not only ‘fair notice’ but also the ‘grounds’ on which the claim rests.” Phillips v. County of

Allegheny, 515 F.3d 224, 232 (3d Cir. 2008).

In determining whether a plaintiff has met this standard, a court must reject legal

conclusions unsupported by factual allegations, “[t]hreadbare recitals of the elements of a cause of

action, supported by mere conclusory statements”; “labels and conclusions”; and “‘naked

assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (citations omitted).

Mere “possibilities” of misconduct are insufficient. Id. at 679.

The Court of Appeals has summarized this inquiry as follows:

To determine the sufficiency of a complaint, a court must take three steps. First, the

court must “tak[e] note of the elements a plaintiff must plead to state a claim.”

Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1947, 173 L.Ed.2d 868 (2009).

Second, the court should identify allegations that, “because they are no more than

conclusions, are not entitled to the assumption of truth.” Id. at 1950. Third, “whe[n]

there are well-pleaded factual allegations, a court should assume their veracity and

then determine whether they plausibly give rise to an entitlement for relief.” Id.

This means that our inquiry is normally broken into three parts: (1) identifying the

elements of the claim, (2) reviewing the complaint to strike conclusory allegations,

and then (3) looking at the well-pleaded components of the complaint and

evaluating whether all of the elements identified in part one of the inquiry are

sufficiently alleged.

Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).

In assessing a motion to dismiss, courts may generally only consider the allegations that

are set forth in the complaint. See, e.g., In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410,

1426 (3d Cir. 1997). However, courts may also consider matters of public record, undisputedly

authentic documents attached to a motion to dismiss, and integral documents that form the basis

of a claim. Id.; Delaware Nation v. Pennsylvania, 446 F.3d 410, 413 n.3 (3d Cir. 2006). As both

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Defendant Cancelmi and Plaintiff have asked the Court to take judicial notice of the docket and

documents that were filed in the state court injunction proceeding, it is appropriate for the Court

to consider them in evaluating this motion to dismiss.

C. Relevant Facts Asserted In the Third Amended Complaint

On April 21, 2017, Defendants Smith, Nicolson, and John Doe Attorney sought an

immediate injunction in the state court permitting the DOC to force feed Plaintiff. (ECF 115, ¶ 69.)

Plaintiff asserts in the Third Amended Complaint that they falsely alleged that he was on a hunger

strike, “greatly exaggerated [his] true condition,” and lied to the state court “to secure the

injunction, so that they could ‘legally’ torture [him] by force feeding him unnecessarily (id., ¶¶ 69-

70.)

A temporary injunction was put into effect and the state court appointed Defendant

Cancelmi to represent Plaintiff during the injunction proceedings. (Id., ¶ 80.) On April 24, 2017,

the state court held a hearing at which Plaintiff testified that he was not on a hunger strike and that

those who sought the injunction were retaliating against him. (Id., ¶¶ 72-77.) Plaintiff asserts

Defendant Cancelmi did not sufficiently represent him because he was operating under a conflict

of interest. According to Plaintiff, Defendant Cancelmi “readily agreed to conspire to violate [his]

rights” by entering into a stipulation that allowed the DOC “to circumvent and escape [its] burden”

to establish that force feeding Plaintiff was necessary. (Id.)

Plaintiff has produced part of the transcript of the August 24, 2017, hearing, which was

held via video. (ECF 149-1). At one point, the state court judge, Defendant Cancelmi, and DOC

counsel held an “in chambers” conference outside the presence of Plaintiff. (Id. at 4-5.) During

this conference, Defendant Cancelmi stated that it was his understanding that Plaintiff was “taking

nutrition…taking food” at the present time. (Id. at 4-7.) The attorney for the DOC confirmed that

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Plaintiff was currently eating and drinking, but said that because he sometimes refuses to do so the

DOC was “considering” seeking a permanent injunction allowing it to force feed Plaintiff “in the

event of an immediate and necessary need, in the future.” (Id. at 8.)

In response, Mr. Cancelmi stated: “I don’t know that there needs to be any injunction at

the moment if [Plaintiff is] eating, but I wouldn’t want the case to be closed because… the

Department of Corrections, if [Plaintiff] starts doing what he was doing, they should be able to

come right back in with a motion to get that…temporary injunction Order immediately back in

place—and we’d litigate it. That would be my view. I’m not sure [Plaintiff] agrees with that.” (Id.

at 8-9.)

Defendant Cancelmi then moved to dismiss the temporary injunction “without prejudice to

the Commonwealth, but with the understanding of our stipulation that the Commonwealth can

immediately request that and it would be reinstated until such time as the Court could….hold a

hearing, and I don’t think that needs to go by the temporary rules of seventy-two hours or forty-

eight hours for a hearing because it’s—we’re already in the continuation of this litigation.” (Id. at

11; see also id. at 18-19.) Defendant Cancelmi further proposed that during the next six months,

and by motion, the state court could immediately reinstate the temporary injunction until a hearing

was held. (Id. at 11-12, 16-10.)

The DOC and the state court found Defendant Cancelmi’s proposed stipulation to be

satisfactory, and Plaintiff was brought into the proceeding and it was explained to him. (Id. at 18-

19.) Plaintiff objected. (Id. at 19-20). The state court and Defendant Cancelmi explained the

stipulation to him further, and Defendant Cancelmi stated that he would visit Plaintiff at SCI

Greene as soon as possible. (Id. at 19-21.) The state court then adjourned the hearing. (Id.)

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On May 5, 2017, the state court granted another motion filed by the DOC, permitting it to

force feed Plaintiff. (ECF 115, ¶ 82.) Plaintiff alleges that the DOC’s application once again

contained false information and greatly exaggerated his condition and was part of the continuing

conspiracy on the part of SCI Greene staff and medical personnel to unnecessarily force feed him

to torture and retaliate against him. (Id.) He alleges throughout the Third Amended Complaint that

he was injured and tortured during the feedings.

Plaintiff claims that Defendant Cancelmi is liable to him under § 1983 because he

conspired with the other defendants to retaliate against him for filing other lawsuits and grievances

against the DOC, its staff, and medical personnel. (Id., ¶¶ 227, 257-74.) In support of these claims,

Plaintiff alleges that at the April 24, 2017, hearing Defendant Cancelmi, “knowingly entered into

an agreement via stipulation, that deliberately violated” Plaintiff’s constitutional rights “by

agreeing to force feed [him] unnecessarily[.]” (Id., ¶ 177.) He further alleges that Defendant

Cancelmi conspired with the other defendants “by illegally entering into an agreement and

‘stipulation,’ which Plaintiff never authorized or agreed to, and had zero knowledge of.” (Id.)

D. Discussion

Section 1983 “provides a cause of action against state actors who violate an individual’s

rights under federal law.” Filarsky v. Delia, 566 U.S. 377, 380 (2012) (emphasis added). “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) (emphasis added).

Defendant Cancelmi argues that the Third Amended Complaint fails to state a § 1983 claim

against him because he was not acting “under color of state law” in his role as Plaintiff’s attorney.

He is correct. Public defenders, like private attorneys, typically are not considered to have acted

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“under color of state law” for the purposes of a § 1983 claim. Polk County v. Dobson, 454 U.S.

312, 325 (1981) (a lawyer, including a public defender, is not, by virtue of being an officer of the

court, a state actor “under color of state law” within the meaning of § 1983); Angelico v. Lehigh

Valley Hosp., Inc., 184 F.3d 268, 277 (3d Cir. 1999) (“Attorneys performing their traditional

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

court.”); Brown v. Joseph, 463 F.2d 1046, 148 (3d Cir. 1972) (a public defender’s “client is not

the Commonwealth of Pennsylvania, whose legislative processes created his office; nor the people

of [the] County, who appoint him to office and pay his salary. His client is a private individual,

who, by reason of indigency, is unable to retain and compensate other counsel. Essentially he is

state-paid private counsel, assigned the responsibility of protecting the interests and defending the

rights of a client. It is settled in this circuit that a private attorney is not a state officer so as to bring

his actions within the purview of § 1983.”); see, e.g., Anthony v. Burns, No. 1:20-cv-164, 2021

WL 1670131, *2 (W.D. Pa. Apr. 8, 2021) (“an attorney acting on behalf of his client is not a state

actor for the purposes of a § 1983 claim.”), report and recommendation adopted, 2021 WL

1662835 (W.D. Pa. Apr. 28, 2021)).

As the Court explained when it decided the motion to dismiss Defendant Cancelmi filed in

response to the First Amended Complaint, “a private party acting in a conspiracy with state

officials may be liable as a state actor.” Smith v. Wambaugh, 29 F. Supp. 2d 222, 226 (M.D. Pa.

1998) (citation omitted); see, e.g., Melo v. Hafer, 912 F.2d 628, 638 (3d Cir. 1990) (“[P]rivate

parties acting in a conspiracy with a state official to deprive others of constitutional rights are also

acting ‘under color’ of state law.”); Dennis v. Sparks, 449 U.S. 24, 27-28 (1980) (“Private persons,

jointly engaged with state officials in the challenged action, are acting see [sic] ‘under color’ of

law for purposes of § 1983 actions.”). “To prevail on a conspiracy claim under § 1983, a plaintiff

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must prove that persons acting under color of state law reached an understanding to deprive him

of his constitutional rights. This requires that the state actors took concerted action based on an

agreement to deprive the plaintiff of his constitutional rights, and that there was an actual

underlying constitutional violation of the plaintiff’s rights.” Harvard v. Cesnalis, 973 F.3d 190,

207 (3d Cir. 2020) (internal quotations and citation omitted).

Plaintiff repeats throughout the Third Amended Complaint that all defendants, including

Defendant Cancelmi, engaged in a conspiracy to violate his rights and harm him. His conclusory

legal statements and speculative allegations are not relevant when evaluating a motion to dismiss,

however. See, e.g., Iqbal, 556 U.S. at 678-79; Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11

(3d Cir. 2009). None of the allegations set forth in the Third Amended Complaint sufficiently

plead that Defendant Cancelmi was acting “under color of state law” as required to state a § 1983

claim against him. See, e.g., Talley v. Varner, 786 F. App’x 326, 329 (3d Cir. 2019) (citing Young

v. Kann, 926 F.2d 1396, 1405 n.16 (3d Cir. 1991)) (“mere general allegation...[or] averment of

conspiracy or collusion without alleging the facts which constituted such conspiracy or collusion

is a conclusion of law and is insufficient [to state a claim]” (alterations in original) (quoting

Kalmanovitz v. G. Heileman Brewing Co., 595 F. Supp. 1385, 1400 (D. Del. 1984)).

Plaintiff, who produced the transcript of the April 24, 2017 hearing, argues that it provides

the factual basis behind his allegations that Defendant Cancelmi conspired with other defendants.

(ECF 149-1.) Nothing in the transcript supports Plaintiff’s contention that he can maintain

retaliation and conspiracy claims under § 1983 against Defendant Cancelmi, however. In fact, the

transcript undercuts Plaintiff’s allegations and reveals no improper conduct on the part of

Defendant Cancelmi.

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Based on the foregoing, Plaintiff has failed to plausibly allege that Defendant Cancelmi

acted “under color state law.” Thus, Plaintiff has not stated any viable § 1983 claim against

Defendant Cancelmi and therefore the Court should grant the Motion to Dismiss (ECF 117). At

this stage of the litigation and under the circumstances presented here, it would be futile to grant

Plaintiff further leave to attempt to cure his pleading deficiencies by filing another amended

complaint. As a result, the dismissal of the claims Plaintiff brought against Defendant Cancelmi

in the Third Amended Complaint should be with prejudice. And, for that reason, the Court should

also deny as moot Plaintiff’s Motion to Substitute Defendant Cancelmi with Pamela Cancelmi, the

Administratrix of his estate (ECF 178).

III. Conclusion

It is respectfully recommended that the Court grant Defendant Cancelmi’s Motion

(ECF 117), dismiss all claims asserted against him in the Third Amended Complaint with

prejudice, and terminate him as a defendant in this case. It is further recommended that the Court

deny as moot Plaintiff’s Motion to Substitute in Defendant Cancelmi’s place Pamela Cancelmi,

the Administratrix of his estate (ECF 178).

Under the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of

the Local Civil Rules, the parties are allowed 14 days from the date of this Order to file objections

to this Report and Recommendation. Failure to do so will waive the right to appeal. Brightwell v.

Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011).

Dated: February 26, 2026

/s/ Patricia L. Dodge

PATRICIA L. DODGE

United States Magistrate Judge

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