On appeal from The United States District Court for the Eastern District of Pennsylvania ">

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Date: 11-29-2021

Case Style:

Shakur Gannaway a/k/a Shakur D. Gannaway v. Nicholas Stroumbakis

Case Number: 20-2882

Judge: PER CURIAM Before: AMBRO, SHWARTZ, and PORTER, Circuit Judges


On appeal from The United States District Court for the Eastern District of Pennsylvania


Defendant's Attorney:

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New York, NY - Criminal defense lawyer represented defendant seeking a writ of habeas corpus.

Because we write primarily for the benefit of the parties, we recite only the
relevant facts. In May 2010, Gannaway was convicted in Pennsylvania state court for
robbery and related offenses and sentenced to 15 to 30 years in prison. In July 2015, he
filed a petition for habeas corpus in the Eastern District of Pennsylvania, alleging
ineffective assistance of counsel on the part of multiple attorneys appointed to represent
him at various stages for, among other things, failing to timely file an appeal on his
behalf. Three years later, the District Court adopted a Magistrate Judge’s
recommendation and granted Gannaway’s habeas petition, ordering his direct appeal
rights reinstated. See Gannaway v. Glunt, No. 5:15-cv-4241, 2018 WL 6106377 (E.D. Pa.
Nov. 21, 2018). The Commonwealth of Pennsylvania complied.
In May 2020, Gannaway commenced the instant action pursuant to 42 U.S.C. §
1983, naming as defendants the presiding judge from his criminal trial, three prosecutors
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
from the Berks County District Attorney’s office, the five attorneys who represented him
at various stages of his original criminal proceeding, and the attorney who represented
him upon restoration of his direct appeal rights. The complaint alleged an assortment of
Fifth, Sixth, Eighth, and Fourteenth Amendment violations stemming from his criminal
trial. For relief, Gannaway sought either modification of his sentence or immediate
release, coupled with compensatory and punitive damages from the various defendants.
The District Court dismissed Gannaway’s complaint pursuant to 28 U.S.C. §
1915(e)(2)(B) for failure to state a claim on which relief could be granted. It found that to
the extent Gannaway sought relief from custody or modification of his sentence, his
claims were not cognizable in a civil rights action, and urged him instead to file a new
habeas petition after exhausting his state remedies. The District Court also held that the
claims against the trial judge in his official capacity were barred by the Eleventh
Amendment, and the claims against the prosecutors in their official capacities failed to
allege a municipal policy or practice. Moreover, it held the judge and prosecutors in their
individual capacities were absolutely immune from liability under § 1983. Finally, the
District Court held that Gannaway’s various court-appointed defense counsel were not
state actors for the purposes of § 1983. Gannaway timely filed a notice of appeal.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the District Court’s
dismissal under the same de novo standard of review that we apply to our review of a
motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). See Allah v.
Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). To avoid dismissal under Rule 12(b)(6), 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). We accept all factual
allegations in the complaint as true and construe those facts in the light most favorable to
the plaintiff, Fleisher v. Standard Ins. Co., 679 F.3d 116, 120 (3d Cir. 2012), and we
construe Gannaway’s pro se complaint liberally, see Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam). We also review de novo legal determinations regarding immunity.
See Dotzel v. Ashbridge, 438 F.3d 320, 324–25 (3d Cir. 2006). 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.
We agree with the District Court that the complaint fails to state a claim and
dismissal was proper under § 1915(e)(2)(B)(ii). Section 1983 “provides that every person
who acts under color of state law to deprive another of a constitutional right shall be
answerable to that person in a suit for damages.” Imbler v. Pachtman, 424 U.S. 409, 417
(1976) (internal quotation marks and alteration omitted). If a prisoner brings suit seeking
to reduce or vacate a sentence, the “sole federal remedy is a writ of habeas corpus,” and
not a civil rights action. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). Here, Gannaway
sought release or “sentencing merger,” see Compl. at 5–6, ECF No. 2; 42 Pa. Cons. Stat.
§ 9765, among various prayers for relief. Such a claim is not cognizable in a § 1983
action; moreover, even for the purposes of a habeas claim, Gannaway does not name any
officials responsible for his custody as defendants. We agree with the District Court that
Gannaway’s remedies for challenges to his incarceration are in habeas.1
When a plaintiff brings a civil rights action against a government employee, courts
distinguish between the employee’s official and individual capacity. See Kentucky v.
Graham, 473 U.S. 159, 165-68 (1985). “[A] suit against a state official in his or her
official capacity is not a suit against the official but rather a suit against the official’s
office.” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). The Eleventh
Amendment “render[s] states—and, by extension, state agencies and departments and
officials when the state is the real party in interest—generally immune from suit by
private parties in federal court.” Pa. Fed’n of Sportsmen’s Clubs, Inc. v. Hess, 297 F.3d
310, 323 (3d Cir. 2002). “Pennsylvania's judicial districts are arms of the state entitled to
Eleventh Amendment immunity.” Haybarger v. Lawrence Cnty. Adult Prob. & Parole,
551 F.3d 193, 195 (3d Cir. 2008). Here, the District Court held that the trial judge, as an
1 See Mem. Op at 5 n.7, ECF No. 6. Moreover, in his submissions to this Court,
Gannaway raises new claims concerning his First Amendment right of access to the
courts. See Resp., CA3 ECF No. 13; Doc. in Supp. of Appeal, CA3 ECF No. 14. Again,
no corrections defendants are named in this action, nor were these claims a part of
Gannaway’s initial complaint. A claim based on a denial of access to the courts through
the closure of the law library or other means would have to be the subject of a separate
action. The lack of defendant corrections officials also means that to the extent
Gannaway alleges mistreatment in prison, he does not connect this behavior to any
individual. See, e.g., Compl. at 6, ECF No. 2 (“At Berks County Prison I was torture,
starve [sic], and subjected to sleeping on a metal frame.”). Though some theoretical
causal chain may exist between the conduct of the attorneys and Gannaway’s presence in
prison, the named defendants have no personal involvement in the conditions of
Gannaway’s confinement, and therefore cannot be held liable for any alleged injuries as a
result thereof. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988).
employee of the judicial district, was entitled to Eleventh Amendment immunity from
suit in his official capacity, and we agree.
The District Court also held that the prosecutors could not be held liable in their
official capacity, because Gannaway did not allege an unconstitutional policy or custom.
As discussed above, a suit against a government employee in an official capacity is a suit
against the employer. See Will, 491 U.S. at 71 Municipalities may not be held liable
under § 1983 on a respondeat superior theory and are only answerable for their own
unconstitutional policies or established customs. See Monell v. Dep’t of Soc. Servs., 436
U.S. 658, 691 (1978). The District Court held that Gannaway’s complaint could not be
read to allege the existence of such a policy or custom, and we agree. Throughout his
complaint, Gannaway alleges “abandonment” by his attorneys and various prosecutorial
misconduct, but quite obviously suggests that these actions were taken by individuals and
aimed squarely at him, rather than part of a systemic practice. The closest he comes to
alleging policy or custom are his references to “‘Jim Crow’ tactics,” yet he never
specifies beyond a bare assertion of disparity between his own sentence and that of the
gunman in the robbery for which he was convicted, which he refers to as an “overcharge
for the color of my skin.” Compl. at 4, ECF No. 2. Because, even construing the
complaint liberally, Gannaway failed to allege a municipal policy or custom, the District
Court properly dismissed the official capacity claims against the prosecutors.
Although limited, certain government employees also enjoy immunity in their
individual capacities from liability under § 1983 for conduct within the scope of their
duties. A judge is immune from liability for actions taken in his judicial capacity, unless
such action is taken in the absence of all jurisdiction. See Stump v. Sparkman, 435 U.S.
349, 356-57 (1978). Similarly, “prosecutors are absolutely immune from liability under §
1983 for their conduct in ‘initiating a prosecution and in presenting the State's case,’
insofar as that conduct is ‘intimately associated with the judicial phase of the criminal
process.’” Burns v. Reed, 500 U.S. 478, 486 (1991) (quoting Imbler, 424 U.S. at 430–
31). Here, the District Court properly evaluated the immunities to which the various
defendants were entitled; the trial judge and prosecutors are absolutely immune from suit
under § 1983 in their individual, personal capacities for the conduct Gannaway alleged.
The District Court also considered Gannaway’s claims against his court-appointed
private defense attorneys and found that they were not “state actors.” See Mem. Op. at 7–
8, ECF No. 6. In a suit under § 1983, “[the] color of state law element is a threshold
issue,” and thus there is no liability if the defendant is not acting under color of state law.
Groman v. Twp. of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995). A privately retained
attorney clearly does not act under color of state law, and we previously have held that
“no color of state law attache[s] to the functions of court-appointed counsel.” Black v.
Bayer, 672 F.2d 309, 314 (3d Cir. 1982), abrogated on other grounds by D.R. v. Middle
Bucks Area Vocational Tech. Sch., 972 F.2d 1364, 1368 n.7 (3d Cir. 1992); cf. Polk
County v. Dodson, 454 U.S. 312, 325 (1981) (holding that public defenders are not state
actors). Here, Gannaway named as defendants multiple attorneys appointed to represent
him and sought damages for their alleged ineffectiveness. Because these court-appointed
attorneys are not state actors under § 1983, the District Court’s dismissal was correct.
Lastly, the District Court dismissed Gannaway’s complaint with prejudice, not
affording him an opportunity to amend. Generally, before dismissing a complaint for
failure to state a claim, “a district court must permit a curative amendment unless such an
amendment would be inequitable or futile.” Phillips v. County of Allegheny, 515 F.3d
224, 245 (3d Cir. 2008). Here, the District Court did not opine on the inequity or futility
of any attempt at amendment, instead simply stating that it would not grant leave to
amend. However, in so doing, the District Court noted that its dismissal was without
prejudice to any future filing of a habeas petition once Gannaway has exhausted his
available state remedies. See Ord. at 2 n.1, ECF No. 7. We therefore find that,
considering its measured discussion of habeas as the proper avenue for resolution of
Gannaway’s claims, any error in the District Court’s failure to address the futility of
amendment was harmless.

Outcome: For the foregoing reasons, Gannaway’s appeal fails to present any substantial
question, and we will summarily affirm the District Court’s order dismissing this action.

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