WESTMORELAND

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JER’BRELL WESTMORELAND, :

Plaintiff, :

:

v. : CIVIL ACTION NO. 26-CV-2641

:

STEPHEN GROSH, :

Defendant. :

MEMORANDUM

GALLAGHER, J. JUNE 12, 2026

Pro Se Plaintiff Jer’Brell Westmoreland, a pretrial detainee currently in custody at

Lancaster County Prison, brings this civil action pursuant to 42 U.S.C. § 1983 against his

defense attorney, Stephen Grosh. He also seeks leave to proceed in forma pauperis. For the

following reasons, the Court will grant Westmoreland leave to proceed in forma pauperis and

dismiss his Complaint on statutory screening pursuant to 28 U.S.C. § 1915.

I. FACTUAL ALLEGATIONS1

Westmoreland is currently awaiting trial in the Lancaster County Court of Common Pleas

on charges of homicide, attempted homicide, and criminal conspiracy. See Commonwealth v.

Westmoreland, CP-36-CR-0002424-2023 (C.P. Lancaster). He asserts that on March 24, 2026,

he met with his court-appointed attorney, Defendant Stephen Grosh, and informed him that he

intended to proceed pro se due to their “irreconcilable differences and other issues.” (Compl. at

1 The facts set forth in this Memorandum are taken from Westmoreland’s Complaint

(ECF No. 1). The Court adopts the pagination assigned to the Complaint by the CM/ECF

docketing system. Additionally, the Court includes facts reflected in publicly available state

court records, of which this Court may take judicial notice. See Buck v. Hampton Twp. Sch.

Dist., 452 F.3d 256, 260 (3d Cir. 2006).

7.) Grosh responded, “you sound stupid Nigger, I’ll continue to represent you, you have no

options.” (Id.) When Westmoreland protested, Grosh continued, “you have no rights, and

[Judge] Reinaker [is] not going to let you represent yourself, I’m going to make sure of it.” (Id.)

On March 26, 2026, Westmoreland and Grosh met again, and Grosh repeated his

intention to prevent Westmoreland from proceeding pro se, stating that he would engage in “ex

parte communications” with the judge to “direct and assist in the deprivation of

[Westmoreland’s] rights” and told Westmoreland “there’s nothing [you] can do about it.” (Id. at

6.) Westmoreland alleges that Grosh then left their meeting and spoke with the judge as part of a

conspiracy to deprive Westmoreland of his Sixth Amendment right to represent himself. (Id.)

At the subsequent Grazier2 hearing, the judge gave Westmoreland little opportunity to explain

his request to proceed pro se and simply informed him that he would be required to proceed with

Grosh as his counsel. (Id.) The Judge told Westmoreland to file a PCRA petition if he had any

concerns. (Id.) Westmoreland did not have an opportunity to tell the judge about the incident in

which Grosh called him a racial slur. (Id.)

As a result of the events alleged, Westmoreland states that he has experienced mental

suffering, depression, racing thoughts, painful flashbacks, anxiety, “continued deprivation of

freedom,” and trauma. (Id. at 8.) He asserts a Sixth Amendment right to counsel claim and

Fourteenth Amendment equal protection and due process claims under the U.S. Constitution.

(Id. at 5.) He also asserts a right to counsel claim under Section I, Article 9 of the Pennsylvania

constitution. (Id.) Westmoreland seeks injunctive relief only, specifically an order directing

Defendant Grosh to “immediately refrain from representing [him] as an attorney and not to ever

contact [Westmoreland] for any reason whatsoever[.]” (Id. at 8.)

2 Commonwealth v. Grazier, 570 A.2d 1054 (Pa. 1990).

II. STANDARD OF REVIEW

The Court will grant Westmoreland leave to proceed in forma pauperis because it

appears that he is incapable of paying the fees to commence this civil action.3 Accordingly, 28

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

Whether a complaint fails to state a claim under § 1915(e)(2)(B)(ii) is governed by the same

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

Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999), 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)

(quoting Bell Atl. Corp. v. Twombly, 560 U.S. 544, 556 (2007)). 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 Westmoreland’s favor, and ask only whether the complaint contains

facts sufficient to state a plausible claim. See 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, 204

(3d Cir. 2024). Conclusory allegations do not suffice. Iqbal, 556 U.S. at 678.

Because Westmoreland is proceeding pro se, the Court construes his allegations liberally.

See 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)). The Court will “apply the relevant legal principle even when

the complaint has failed to name it.” Id. (quoting Mala, 704 F.3d at 245). However, “pro se

litigants still must allege sufficient facts in their complaints to support a claim.” Id. (quoting

Mala, 704 F.3d at 245). An unrepresented litigant “cannot flout procedural rules — they must

3 Because Westmoreland is incarcerated, he will be obligated to pay the filing fee in

installments in accordance with the Prison Litigation Reform Act. See 28 U.S.C. § 1915(b).

abide by the same rules that apply to all other litigants.” Mala, 704 F.3d at 245; see also Doe v.

Allegheny Cnty. Hous. Auth., No. 23-1105, 2024 WL 379959, at *3 (3d Cir. Feb. 1, 2024) (per

curiam) (“While a court must liberally construe the allegations and ‘apply the applicable law,

irrespective of whether the pro se litigant mentioned it be name,’ Higgins v. Beyer, 293 F.3d 683,

688 (3d Cir. 2002), this does not require the court to act as an advocate to identify any possible

claim that the facts alleged could potentially support.”).

Furthermore, the Court must dismiss the Complaint if it lacks subject matter jurisdiction.

Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter

jurisdiction, the court must dismiss the action.”); see also Grp. Against Smog and Pollution, Inc.

v. Shenango, Inc., 810 F.3d 116, 122 n.6 (3d Cir. 2016) (explaining that “an objection to subject

matter jurisdiction may be raised at any time [and] a court may raise jurisdictional issues sua

sponte”). A plaintiff commencing an action in federal court bears the burden of establishing

federal jurisdiction. See Lincoln Benefit Life Co. v. AEI Life, LLC, 800 F.3d 99, 105 (3d Cir.

2015) (“The burden of establishing federal jurisdiction rests with the party asserting its

existence.”) (citing DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 n.3 (2006)).

“Jurisdictional [issues] . . . may be raised at any time and courts have a duty to consider them sua

sponte.” Wilkins v. United States, 598 U.S. 152, 157 (2023) (internal quotations omitted). In

assessing the Second Amended Complaint, the Court is mindful of its obligation to liberally

construe a pro se litigant’s pleadings. See Higgs v. Att’y Gen., 655 F.3d 333, 339 (3d Cir. 2011).

III. DISCUSSION

A. Federal Claims

Westmoreland asserts constitutional claims against Grosh under the Sixth and Fourteenth

Amendments. The vehicle by which federal constitutional claims may be brought in federal

court is 42 U.S.C. § 1983. “Section 1983 provides a civil remedy for the ‘deprivation of any

rights, privileges, or immunities secured by the Constitution and laws.’” Halsey v. Pfeiffer, 750

F.3d 273, 290 (3d Cir. 2014) (quoting 42 U.S.C. § 1983); see also Elmore v. Cleary, 399 F.3d

279, 281 (3d Cir. 2005) (explaining § 1983 “is not itself a source of substantive rights, but

[rather] a method for vindicating federal rights elsewhere conferred.” (quoting Baker v.

McCollan, 443 U.S. 137, 145 n. 3 (1979))). To state a claim under § 1983, a plaintiff must

demonstrate “that the defendants, acting under color of law, violated the plaintiff’s federal

constitutional or statutory rights, and thereby caused the complained of injury.” Karns v.

Shanahan, 879 F.3d 504, 520 (3d Cir. 2018) (quoting Elmore, 399 F.3d at 281); see also Halsey,

750 F.3d at 290 (“To state a claim under section 1983, a plaintiff must demonstrate that ‘some

person has deprived him of a federal right ... [and] that the person who has deprived him of that

right acted under color of state or territorial law.’” (quoting Gomez v. Toledo, 446 U.S. 635, 640

(1980))).

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) (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 County

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.”).

Westmoreland states that Grosh “violated [his] constitutional rights by acting under color

of his authority as a Court-appointed attorney operating within and for the Commonwealth.”

(Compl. at 5.) However, Grosh’s status as a court-appointed attorney does not by itself make

him a state actor subject to suit under § 1983. See Angelico, 184 F.3d at 277. Nor does

Westmoreland allege another basis to deem Grosh a state actor. He asserts that Grosh conspired

with Judge Reinaker to deny him the right to proceed pro se in his own defense. (Compl. at 6.)

“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)).

However, “to 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). Westmoreland does not assert facts to support his conspiracy claim. He states

that, after meeting with Westmoreland, Grosh “walked out [of] the inmate holding cell, [met]

with Judge (un-named) party, proceeded to participate in ex parte communication conspiring to

deprive plaintiff of his Sixth Amendment right to self-representation and to accomplish the threat

previously made to plaintiff.” (Compl. at 6.) Other than the conclusory assertion that Grosh and

the judge “participate[d] in ex parte communication to deprive plaintiff of his Sixth Amendment

right” there are no factual allegations as to what Grosh and the judge discussed or any facts

indicating that the judge shared in Grosh’s alleged intention to deprive Westmoreland of his

Sixth Amendment rights. Without more, Westmoreland fails to allege the existence of a

conspiracy between Grosh and the judge that would make him a state actor. 4 See Capogrosso v.

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

Muchmore, 904 F.2d 1475, 1480-81 (10th Cir. 1990))). Accordingly, his constitutional claims

against Grosh are not plausible and will be dismissed.

B. State Law Claims

Because the Court has dismissed his federal claims, the Court will not exercise

supplemental jurisdiction under 28 U.S.C. § 1367(c) over any state law claims. Accordingly, the

only independent basis for jurisdiction over any such claims is 28 U.S.C. § 1332(a), which grants

a district court jurisdiction over a case in which “the matter in controversy exceeds the sum or

value of $75,000, exclusive of interest and costs, and is between . . . citizens of different States.”

4 Moreover, the only relief Westmoreland seeks in this case, that this Court remove Grosh

as his court-appointed counsel, is unavailable pursuant to Younger v. Harris, 401 U.S. 37 (1971),

which “established a principle of abstention when federal adjudication would disrupt an ongoing

state criminal proceeding.” Yang v. Tsui, 416 F.3d 199, 202 (3d Cir. 2005) (discussing Younger).

Younger abstention “is premised on the notion of comity, a principle of deference and ‘proper

respect’ for state governmental functions in our federal system.” Evans v. Court of Common

Pleas, Delaware Cnty., Pa., 959 F.2d 1227, 1234 (3d Cir. 1992). Comity concerns are especially

heightened when the ongoing state governmental function is a criminal proceeding, as in

Westmoreland’s case. Id.

Section 1332(a) requires “‘complete diversity between all plaintiffs and all defendants,’

even though only minimal diversity is constitutionally required. This means that, unless there is

some other basis for jurisdiction, ‘no plaintiff [may] be a citizen of the same state as any

defendant.’” Lincoln Benefit Life Co., 800 F.3d at 104 (quoting Lincoln Prop. Co. v. Roche, 546

U.S. 81, 89 (2005) and Zambelli Fireworks Mfg. Co. v. Wood, 592 F.3d 412, 419 (3d Cir. 2010)

(internal footnotes omitted)). An individual is a citizen of the state where he is domiciled,

meaning the state where he is physically present and intends to remain. See Washington v.

Hovensa LLC, 652 F.3d 340, 344 (3d Cir. 2011). “[T]he domicile of a prisoner before his

imprisonment presumptively remains his domicile during his imprisonment.” Pierro v. Kugel,

386 F. App’x 308, 309 (3d Cir. 2010). It is the plaintiff's burden to establish diversity of

citizenship, see Gibbs v. Buck, 307 U.S. 66, 72 (1939); Quaker State Dyeing & Finishing Co.,

Inc. v. ITT Terryphone Corp., 461 F.2d 1140, 1143 (3d Cir. 1972) (stating that, in diversity

cases, the plaintiff must demonstrate complete diversity between the parties and that the amount

in controversy requirement has been met); Jackson v. Rosen, C.A. No. 20-2842, 2020 WL

3498131, at *8 (E.D. Pa. June 26, 2020).

Westmoreland does not allege the citizenship of the parties. Rather, he provides only

Pennsylvania addresses for himself and Defendant Grosh, which suggests that both may be

Pennsylvania citizens. (Compl. at 2.) Accordingly, Westmoreland has not sufficiently alleged

that the parties are diverse for purposes of establishing the Court’s jurisdiction over any state law

claims he intends to pursue.

IV. CONCLUSION

For the foregoing reasons, the Court will grant Westmoreland leave to proceed in forma

pauperis and dismiss his Complaint. His federal claims against Stephn Grosh will be dismissed

with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). His state law claims will be dismissed

without prejudice for lack of subject matter jurisdiction. Westmoreland will not be granted leave

to file an amended complaint because to do so would be futile. See Grayson v. Mayview State

Hosp., 293 F.3d 103, 111 (3d Cir. 2002). An appropriate Order follows.

BY THE COURT:

/s/ John M. Gallagher

JOHN M. GALLAGHER, J.