Nicholas Radocesky; Faith Frazier; Nicholas R. Radocesky; Daughter Radocesky v. Robert Munley

BLD-105 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 06-3633
________________
NICHOLAS RADOCESKY; FAITH FRAZIER;
NICHOLAS R. RADOCESKY; DAUGHTER RADOCESKY
v.
ROBERT MUNLEY; CARMEN MINORA; AMY PHILLIPS;
ANDREW JARBOLA, D.A. Lackawanna County;
CHARLES WITACONIS, Assistant Public Defender;
MICHAEL BARRASSE, Lackawanna County Judge;
UNKNOWN CITY SOLICITOR
Nicholas N. Radocesky,
Appellant
____________________________________
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civ. No. 06-cv-00553)
District Judge: Honorable James M. Munley
__________________________
Submitted Under 28 U.S.C. § 1915(e)(2)(B)
January 25, 2007
Before: McKee, Fuentes and Roth, Circuit Judges
(Filed: June 29, 2007 )
_________________
OPINION
_________________

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PER CURIAM
Appellant Nicholas Radocesky filed an in forma pauperis civil rights action in
United States District Court for the Middle District of Pennsylvania against several judges
of the Lackawanna County Court of Common Pleas, members of the District Attorney’s
Office, and members of the Public Defender’s Office, alleging that these individuals took
advantage of him in convincing him to plead guilty to a misdemeanor possession of a
controlled substance charge. Originally, his bail was revoked when he did not plead
guilty to a Delivery charge in accordance with the terms of the plea agreement. His
public defender then worked out a new agreement that would result in his release if he
would plead guilty to a misdemeanor possession charge. He did so, and two other
misdemeanor counts were dismissed as a result of the plea. Radocesky is neurologically
disabled and suffers from organic brain syndrome, apparently as a result of a serious
automobile accident. In an amendment to the complaint, he indicated that he was seeking
compensatory and punitive money damages for the sake of his family and to secure their
future
In an order entered on June 29, 2006, the District Court dismissed the complaint
under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which
relief may be granted. The court reasoned that judges are immunized from a suit for
damages for acts done in the performance of their judicial duties. Stump v. Sparkman,
435 U.S. 349, 356-57 (1978). The decision whether or not to initiate or prosecute a case

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Radocesky also sought the court’s assistance in bringing two unidentified inmates to1
justice for sexually assaulting him. The court noted for his benefit that it had no authority
to bring charges against the inmates.
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is completely discretionary with prosecutors and also is absolutely immunized from a suit
for damages. Imbler v. Pachtman, 424 U.S. 409 (1976). Finally, no liability attaches
under 42 U.S.C. § 1983 for representation of a criminal defendant, because a public
defender does not act under color of law in representing his or her client. Polk County v.
Dodson, 454 U.S. 312 (1981). Radocesky filed a timely motion for reconsideration,1
contending that he had alleged a number of “declaratory decree violations” which would
not be immunized from suit.
Radocesky appeals. His motion to appeal in forma pauperis was granted by our
Clerk and he was notified that his appeal would be considered under 28 U.S.C. §
1915(e)(2)(B).
We will dismiss the appeal under 28 U.S.C. § 1915(e)(2)(B)(i). An appeal is
frivolous when it lacks an arguable basis either in law or fact. Neitzke v. Williams, 490
U.S. 319, 325 (1989). Under Rule 12(b)(6), dismissal of a complaint is proper only if it is
clear that no relief could be granted under any set of facts that could be proved consistent
with the allegations. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). It is clear here that no
relief could be granted under any set of facts that could be proved consistent with the
allegations. The District Court properly dismissed the amended complaint on the basis of
immunities and the absence of state action. This action does not involve a demand for

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Thomas Gilholy, the Superintendent of the Lackawanna County jail, also was named2
as a defendant in the original complaint, and the Pennsylvania Board of Probation and
Parole, and/or certain of its officials, were named in an amendment. There are no
allegations directed at these defendants and they were thus entitled to dismissal under
Rule 12(b)(6) as well.
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prospective relief to which the District Court’s immunities analysis might not apply. In
addition, Heck v. Humphrey, 512 U.S. 477 (1994), bars the action because the conviction
has never been invalidated.2
We will dismiss the appeal as frivolous.

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