PHILADELPHIA – The U.S. Court of Appeals for the Third Circuit has ruled that a plaintiff who accused his former attorney of malpractice and being a state actor therein will have his case dismissed.

Through ruling issued June 14, U.S. Court of Appeals for the Third Circuit judges Patty Shwartz, Robert E. Cowen and Julio M. Fuentes decided the malpractice claims of plaintiff Mickey Castillo against defendant Matthew P. Kelly had no merit.

Castillo, of Kingston, was represented in Pennsylvania post-conviction appellate proceedings in 2013 by counsel Kelly. Castillo was unsatisfied with Kelly’s representation and filed several disciplinary actions against Kelly, all of which were rebuffed by the appropriate disciplinary authorities.

In June 2015, Castillo filed a civil rights complaint under 42 U.S.C. Section 1983 against Kelly, which he subsequently sought to amend. The District Court gave Castillo that leave to amend and he filed an amended complaint naming John and Jane Does as co-defendants.

Castillo alleged that Kelly had no legal standing to represent plaintiff’s PCRA appeal, refused to correct a defect in a sentence order of July 8, 2010 in order for it can be appealable, and that Kelly violated his procedural due process rights by destroying Castillo’s legal paperwork.

Castillo further introduced a state law malpractice claim against Kelly. Finally, he alleged that the Doe defendants violated his rights by “failing to oversee and train Kelly, and failing to realize that Castillo’s sentence is ‘non-appealable.”

The magistrate judge hearing the complaint screened it under 28 U.S.C. Section 1915(e)(2), and recommended dismissing it for failure to state a claim under Section 1915(e)(2)(B)(ii), noting that giving Castillo leave to amend would be futile. The District Court adopted the magistrate judge’s recommendation and dismissed the complaint, leading Castillo to appeal to the Third Circuit.

“Castillo’s federal claims against Kelly fail because he insufficiently alleged that Kelly is a state actor. To have been considered a state actor, Kelly must: (1) Actually have been a state official; (2) Have acted with or received significant help from state Castillo also sought a stay pending the resolution of his habeas petition. officials; or (3) Have engaged in conduct that, by its nature, can be attributed to the state. This Court has previously held that private ‘attorneys performing their traditional functions will not be considered state actors solely on the basis of their position as officers of the court.’ Castillo did not plead facts sufficient to allege that Kelly acted as a state official or with help from state officials, or engaged in conduct attributable to Pennsylvania,” the Third Circuit said.

“For the same reason, the District Court also correctly dismissed Castillo’s claim against the Doe defendants. Castillo argued that they allowed Kelly to ‘go rogue’ and had a duty to oversee and train Kelly, but none of his allegations indicate that they are state actors. Even if they were, and even if they somehow supervised Kelly’s work, liability cannot be based solely on respondeat superior. Accordingly, we will affirm the District Court’s judgment,” the Third Circuit concluded.

U.S. Court of Appeals for the Third Circuit case 15-3986

U.S. District Court for the Middle District of Pennsylvania case 3:15-cv-01252

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at

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