HLD-126 (April 2010) NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 09-4466
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PURNELL R. NELSON,
Appellant
v.
DAUPHIN COUNTY PUBLIC DEFENDER;
COMMONWEALTH OF PENNSYLVANIA;
KENNETH A. RAPP
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 09-cv-02066)
District Judge: Honorable William W. Caldwell
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Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
April 30, 2010
Before: SCIRICA, WEIS and GARTH, Circuit Judges
(Opinion filed: May 24, 2010)
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OPINION
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PER CURIAM.
Purnell R. Nelson appeals from the order of the United States District Court
for the Middle District of Pennsylvania dismissing his civil rights action filed pursuant to
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42 U.S.C. § 1983. Nelson, an inmate of the Dauphin County Prison, named as defendants
Kenneth A. Rapp, the Dauphin County Public Defender; the office of the Dauphin
County Public Defender; and the Commonwealth of Pennsylvania. Nelson alleged that
his constitutional rights were violated by the Public Defender when he failed to notify
him that a Dauphin County warrant was issued for his arrest. Nelson explained that he
was arrested in May 2009 for a parole violation and was placed in the Dauphin County
Prison. While he was housed there, in June 2009, an arrest warrant was issued for an
outstanding capias, but the Public Defender failed to notify him. Upon Nelson’s release
in July 2009, he was arrested on the capias, was searched, and had a marijuana joint
seized. He was then detained at the Dauphin County Prison. He noted that he filed a
motion to dismiss based on an illegal search and seizure, lack of probable cause for arrest,
and the arresting officer’s failure to act in accordance with the law and provide him with
Miranda warnings. Nelson alleged that he suffered mental anguish and psychological
damage as a result of the Public Defender’s malpractice and incompetence. Further, he
asserted that the Public Defender acted outside the scope of his duties by failing to notify
Nelson of his pending case before he was arrested on the warrant, and that the Public
Defender’s unethical misconduct violated his constitutional rights under the First, Fourth,
Eighth, and Fourteenth Amendments. As relief, Nelson sought $1 million in
compensatory damages and the same amount in punitive damages.
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Nelson was granted in forma pauperis status in District Court. The District
Court dismissed the complaint under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a
claim upon which relief may be granted. This appeal followed.
We have jurisdiction pursuant to 28 U.S.C. § 1291. Upon consideration of
the record, we will affirm. As noted by the District Court, criminal defense attorneys,
including public defenders, do not act “under color of state law” and are not liable under
section 1983 when performing traditional functions as defense counsel. See Polk County
v. Dodson, 454 U.S. 312, 325 (1981). Despite Nelson’s assertion that the Public
Defender acted outside of the scope of his duties, his allegations concern functions that
Nelson expected the Public Defender to perform as defense counsel. Nelson’s allegations
against defendant Rapp fail to state a claim under section 1983. Further, we agree with
the District Court’s conclusion that the complaint fails to state a claim against the office
of the Public Defender and the Commonwealth of Pennsylvania. The complaint makes
no allegations against these two defendants. To the extent that the office of the Public
Defender was named as a defendant only in relation to Nelson’s allegations against
Rapp, the claims must fail. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.
1986) (“defendant in a civil rights action must have a personal involvement in the alleged
wrongs; liability cannot be predicated solely on the operation of respondeat superior.”)
We also agree with the District Court’s conclusion that no claim can be made against the
Commonwealth of Pennsylvania, because it is not a “person” subject to suit under section
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1983. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989) (“We hold that
neither a State nor its officials acting in their official capacities are ‘persons’ under §
1983.”).
Accordingly, for essentially the same reasons as those set forth by the
District Court in its memorandum, we will affirm. Nelson’s motion for appointment of
counsel is denied.
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