Antwan L. Richardson v. Joseph F. Hartye

BLD-026 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 21-2429
___________
ANTWAN L. RICHARDSON,
Appellant
v.
JOSEPH F. HARTYE; BRADLEY A. WINNICK; JOHN R. CANAVAN; DAUPHIN
COUNTY PUBLIC DEFENDERS OFFICE; DAUPHIN COUNTY DISTRICT
ATTORNEYS OFFICE; JUDGE DEBORAH E. CURCILLO; FRANCIS T. CHARDO
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 1-19-cv-02132)
District Judge: Honorable Christopher C. Conner
____________________________________
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
November 10, 2021
Before: MCKEE, GREENAWAY, JR., and PORTER, Circuit Judges
(Opinion filed: December 1, 2021)
_________
OPINION*
_________
PER CURIAM
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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Appellant Antwan Richardson, an inmate proceeding pro se and in forma pauperis,
appeals from the District Court’s dismissal of his civil rights complaint. For the reasons
that follow, we will summarily affirm the District Court’s judgment.
I.
In December 2019, Richardson filed a complaint against numerous defendants
involved in his state court criminal proceedings, including his public defender, the district
attorney, several police officers, and the trial judge. A United States Magistrate Judge
screened Richardson’s complaint pursuant to 28 U.S.C. § 1915(e), dismissed the
complaint for failure to state a claim, and granted Richardson leave to file an amended
complaint. Richardson then filed an amended complaint, omitting the police officer
defendants. Neither complaint identified a precise cause of action but the Magistrate
Judge liberally construed Richardson to have alleged 42 U.S.C. § 1983 claims stemming
from his criminal prosecution and conviction. Specifically, Richardson alleged
constitutional violations based on claims of 1) malicious prosecution; 2) an improper
competency evaluation; 3) improper delay in being brought to trial; 4) selective
prosecution; and 5) ineffective assistance of counsel. Richardson seeks damages and
equitable relief.
The Magistrate Judge screened the amended complaint pursuant to 28 U.S.C. §
1915(e)(2)(B) and recommended dismissal of the complaint without further leave to
amend. The District Court adopted the Magistrate Judge’s report over Richardson’s
objections and dismissed the amended complaint. Richardson appealed.

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II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We exercise
plenary review over the District Court’s sua sponte dismissal of Richardson’s claims
under § 1915(e)(2). See Dooley v. Wetzel, 957 F.3d 366, 373 (3d Cir. 2020). To avoid
dismissal for failure to state a claim, a civil complaint must set out “sufficient factual
matter” to show that its claims are facially plausible. See Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). Construing Richardson’s complaint liberally, see Erickson v. Pardus,
551 U.S. 89, 94 (2007) (per curiam), we accept all factual allegations in the complaint as
true and view those facts in the light most favorable to Richardson, Fleisher v. Standard
Ins. Co., 679 F.3d 116, 120 (3d Cir. 2012). We may summarily affirm if the appeal fails
to present a substantial question. See Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir.
2011) (per curiam); 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
III.
We agree with the District Court’s dismissal of Richardson’s claims for
substantially the reasons stated in the Magistrate Judge’s Report and Recommendation.
First, Richardson’s claims against Judge Curcillo are barred by absolute immunity. See
Stump v. Sparkman, 435 U.S. 349, 355-57 (1978) (explaining that judges are not civilly
liable for judicial acts); Azubuko v. Royal, 443 F.3d 302, 303 (3d Cir. 2006) (per curiam)
(“A judicial officer in the performance of his duties has absolute immunity from suit and
will not be liable for his judicial acts.”). Although Richardson disagreed with Judge
Curcillo’s decisions concerning the timeliness of his trial and his competency evaluation,

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he did not allege that the judge acted in the absence of jurisdiction. See Figueroa v.
Blackburn, 208 F.3d 435, 443-44 (3d Cir. 2000) (explaining that “[a] judge will not be
deprived of immunity because the action he took is in error, was done maliciously, or was
in excess of his authority; rather, he will be subject to liability only when he has acted in
the clear absence of all jurisdiction”). Because there is no question that Judge Curcillo
acted within his jurisdiction, Richardson’s claims are barred. See id. (“[g]enerally, . . .
where a court has some subject matter jurisdiction, there is sufficient jurisdiction for
immunity purposes”) (citations and internal quotation marks omitted). Additionally, the
Magistrate Judge correctly concluded that Richadson’s claim against Judge Curcillo for
injunctive relief was also barred. See Azubuko, 443 F.3d at 303-04 (injunctive relief
against a judicial officer not available under § 1983 unless a declaratory decree was
violated or declaratory relief is unavailable).
Next, Richardson’s claims against prosecutors Canavan, Chardo, and the Dauphin
County District Attorney’s Office are also barred by absolute immunity. See Buckley v.
Fitzsimmons, 509 U.S. 259, 273 (1993) (“[A]cts undertaken by a prosecutor in preparing
for the initiation of judicial proceedings or for trial, and which occur in the course of his
role as an advocate for the State, are entitled to the protections of absolute immunity.”).
Richardson’s allegations indicate that both prosecutors acted entirely within the scope of
their respective positions as they sought to bring him to trial and participated in the
competency evaluation process. See Van de Kamp v. Goldstein, 555 U.S. 335, 343-44
(2009) (applying absolute immunity where the prosecutor’s administrative obligation was

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“directly connected with the conduct of a trial”); see also Williams v. Consovoy, 453
F.3d 173, 178 (3d Cir. 2006) (competency evaluation is “function integral to the judicial
process”).
Richardson’s claim of malicious prosecution also fails. To prove a malicious
prosecution claim under § 1983, a plaintiff must meet a number of elements, including
that the “criminal proceeding ended in his favor.” Allen v. N.J. State Police, 974 F.3d
497, 502 (3d Cir. 2020). As this Court has explained, favorable termination requires a
showing that a conviction has been “disposed of in a way that indicates the innocence of
the accused.” Kossler v. Crisanti, 564 F.3d 181, 187 (3d Cir. 2009). Because
Richardson’s conviction has not been overturned or otherwise favorably terminated, he
cannot allege the elements required for malicious prosecution.
Richardson also alleges that the prosecution violated his right to equal protection
by prosecuting him for kidnapping while declining to prosecute the person he kidnapped.
The Magistrate Judge correctly interpreted Richardson’s claim as an allegation of
selective prosecution, a form of discriminatory law enforcement that violates the Equal
Protection Clause of the Fourteenth Amendment. See Yick Wo v. Hopkins, 118 U.S. 356
(1886). Two factors must be proved: first, that persons similarly situated were not
prosecuted; second, “that the decision to prosecute was made based on an unjustifiable
standard, such as race, religion or some other arbitrary factor.” United States v.
Schoolcraft, 879 F.2d 64, 68 (3d Cir. 1989) (per curiam). As explained by the Magistrate

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Judge, Richardson has failed to allege the basis for either factor and therefore has failed
to state a claim of selective prosecution.
Additionally, Richardson’s claims against defense counsel, including Hartye,
Winnick, and the Dauphin County Public Defender’s Office, fail under § 1983 because
the defendants are not state actors. Public defenders do not act under color of state law
for purposes of § 1983 when they “perform[] a lawyer’s traditional functions as counsel
to a defendant in a criminal proceeding.” See Polk County v. Dodson, 454 U.S. 312, 325
(1981). Although defense attorneys may act “under color of” state law when they
conspire with state officials to deprive a person of his or her federal rights, see Tower v.
Glover, 467 U.S. 914, 923 (1984), a plaintiff pleading unconstitutional conspiracy “must
assert facts from which a conspiratorial agreement can be inferred,” Great W. Mining &
Min. Co. v. Fox Rothschild LLP, 615 F.3d 159, 178 (3d Cir. 2010). Richardson’s bare
assertion that defense counsel conspired with the prosecution concerning his competency
evaluation failed to plausibly allege any conspiracy.
Finally, considering the foregoing, the District Court did not abuse its discretion or
otherwise err in dismissing the complaint without leave to amend after determining that
further amendment would have been futile. See Grayson v. Mayview State Hosp., 293
F.3d 103, 108 (3d Cir. 2002).

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Because this appeal does not present a substantial question, we will affirm the
judgment of the District Court. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.1
1 Richardson’s motion for appointment of counsel is denied in light of our disposition.
See Tabron v. Grace, 6 F.3d 147, 155-56 (3d Cir. 1993).

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