IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA BRIAN SAUERWINE, : Plaintiff, : : v. : CIVIL ACTION NO. 20-CV-2709 : GAVIN P. HALIHAN, : Defendant. : MEMORANDUM SLOMSKY, J. JUNE 23, 2020 Plaintiff Brian Sauerwine, a prisoner incarcerated at SCI-Retreat, brings this civil action pursuant to

against Gavin P. Halihan, an attorney who represented him in criminal proceedings in Lehigh County. Sauerwine seeks to proceed in forma pauperis. For the following reasons, the Court will grant Sauerwine leave to proceed in forma pauperis and dismiss the Complaint with prejudice pursuant to

(e)(2)(B)(ii) for failure to state a claim. I. FACTUAL ALLEGATIONS Sauerwine’s Complaint is brief. He alleges that Defendant Halihan coerced him to plead guilty to certain criminal offenses with which he was charged. (ECF No. 2 at 3.) Sauerwine asserts that his attorney was constitutionally ineffective and asks to be reimbursed for the amount paid to Halihan for his representation. (Id.) Sauerwine also asks “to return to the Lehigh County Courthouse, so [he] can confront [his] lawyer in Court.” (Id.) Apparently, he seeks to challenge his plea. (Id.) Sauerwine claims that he is innocent of the offenses to which he pled guilty. (Id. at 4.) II. STANDARD OF REVIEW Sauerwine is granted leave to proceed in forma pauperis because it appears that he is unable to pay the costs of filing suit.1 As Sauerwine is proceeding in forma pauperis,

(e)(2)(B)(ii) applies, which requires the Court to dismiss the Complaint if it fails to state a claim. To survive dismissal, a complaint “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,

(2009) (quotations omitted). “[M]ere conclusory statements[] do not suffice.”

As Sauerwine is proceeding pro se, the Court construes his allegations liberally. Higgs v. Att’y Gen.,

, 339 (3d Cir. 2011). III. DISCUSSION Sauerwine brings constitutional claims against his defense attorney pursuant to

. “To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was

committed by a person acting under color of state law.” West v. Atkins,

(1988). “Attorneys performing their traditional functions will not be considered state actors solely on the basis of their position as officers of the court.” Angelico v. Lehigh Valley Hosp., Inc.,

(3d Cir. 1999); cf. Polk Cty. v. Dodson,

(1981) (“[A] public defender does not act under color of state law when performing a lawyer’s traditional functions as counsel to a defendant in a criminal proceeding.” (footnote omitted)). As there is no basis for concluding that Halihan is a state actor, Sauerwine cannot state a plausible claim against him under § 1983.

1 However, as Sauerwine is a prisoner, he will be obligated to pay the $350 filing fee in installments in accordance with the Prison Litigation Reform Act. See

(b). Furthermore, to the extent Sauerwine seeks to challenge his guilty plea, he may not do so in a § 1983 action. That is because “when a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ

of habeas corpus.” See Preiser v. Rodriguez,

(1973). Public records reflect that Sauerwine has already challenged his convictions in a habeas petition, and that his petition was dismissed. See Sauerwine v. Delbalso, Civ. A. No. 14-6254 (E.D. Pa.) (ECF Nos. 18 & 29). IV. CONCLUSION For the foregoing reasons, the Court will grant Sauerwine leave to proceed in forma pauperis and dismiss his Complaint in its entirety for failure to state a claim pursuant to

(e)(2)(B)(ii). Sauerwine will not be given leave to file an amended complaint because he cannot cure the defects in his claims. An appropriate Order follows. BY THE COURT:

/s/Joel H. Slomsky, J. JOEL H. SLOMSKY, J.