Valentino Amaro v. Wentworth D. Vedder

BLD-113 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 08-4130
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VALENTINO AMARO,
Appellant
v.
WENTWORTH D. VEDDER; RICHARD HERNANDEZ
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 08-cv-03368)
District Judge: Honorable Gene E.K. Pratter
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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
February 26, 2009
Before: McKEE, FISHER and CHAGARES, Circuit Judges
(Filed: March 26, 2009)
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OPINION
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PER CURIAM
Appellant Valentino Amaro appeals from the District Court’s order dismissing his
complaint. We will dismiss the appeal under 28 U.S.C. § 1915 (e)(2)(B).

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In 2008, Amaro filed a civil action under 42 U.S.C. § 1983 alleging that Vedder,
Amaro’s criminal defense attorney, violated his constitutional rights when representing
him. Amaro also alleged that Hernandez, acting on behalf of the Disciplinary Board of
the Supreme Court of Pennsylvania, violated his constitutional rights when he dismissed
Amaro’s formal complaint regarding Vedder’s representation. Amaro sought declaratory
and monetary relief from the District Court.
Amaro timely filed this appeal. We have jurisdiction pursuant to 28 U.S.C.
§ 1291. Because Amarao is proceeding in forma pauperis, we must dismiss the appeal if
it is frivolous. 28 U.S.C. § 1915(e)(2)(B)(i). Neitzke v. Williams, 490 U.S. 319, 325
(1989).
As the District Court points out, Vedder is not a state actor acting under color of
state law. The Supreme Court has held that an attorney, whether appointed by the state or
privately retained, “does not act under color of state law when performing a lawyer’s
traditional functions as counsel to a defendant in a criminal proceeding.” Polk County v.
Dodson, 454 U.S. 312, 318-319 (1981); see also Angelico v. Lehigh Valley Hosp., Inc.,
184 F.3d 268, 277 (1999). Therefore, Amaro cannot bring an actionable § 1983 claim
against Vedder.
Amaro also fails to allege how Hernandez violated his constitutional rights in
dismissing the formal complaint Amaro filed with the Disciplinary Board of the Supreme

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Court of Pennsylvania. Therefore, we agree with the District Court that Amaro does not
provide a basis for relief under 42 U.S.C. § 1983.
As the appeal lacks any arguable legal merit, we will dismiss it under 28 U.S.C.
§ 1915 (e)(2)(B)(i). The motion for appointment of counsel is denied.

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