United States District Court, D. Maryland
L Russell, III United States District Judge
MATTER is before the Court on Plaintiff Savino Braxton's
Motion for Leave to Proceed in Forma Pauperis (ECF No. 6),
which will be granted. Braxton, an inmate at the Federal
Correctional Institution in Fort Dix, New Jersey, commenced
this action on September 18, 2015. (ECF No. 1). Braxton then
filed an Amended Complaint on October 28, 2015. (ECF No. 5).
Braxton brings this case under 42 U.S.C. § 1983 (2012)
against Assistant United States Attorney John F. Purcell
(“AUSA Purcell”) and his court-appointed defense
attorney Anthony R. Szekely for their conduct during
Braxton's criminal trial in United States v.
Braxton, Criminal No. JKB-09-478 (D.Md.).
Amended Complaint, Braxton alleges a conspiracy between AUSA
Purcell and Szekely to increase his sentence at his
then-pending resentencing hearing. (Am. Compl. at 6-10, ECF No.
As to Szekely, Braxton takes issue with the fact that Szekely
declined to file several pretrial motions Braxton suggested
he file. (Id. at 7). Braxton claims that Szekely was
determined to pursue technical issues which resulted in
Braxton's entire guilty plea being vacated and remanded
to the district court even though Braxton only desired to
challenge the sentencing aspect of his case. (Id.).
Ultimately, Braxton moved to have Szekely removed from his
case and represented himself at trial. (Id.). After
a jury trial, Braxton was found guilty. (Id.).
Braxton alleges that because of Szekely's chosen course
of action, he was subjected to a twenty-year mandatory
minimum enhanced sentence under 21 U.S.C. § 851
(2012). (Id. at 10).
AUSA Purcell, Braxton alleges that AUSA Purcell engaged in
“judge shopping” on remand by having the case
reassigned to a different judge. (Id. at 10-11).
Braxton claims that Purcell was dissatisfied with the
downward departure granted by the original sentencing judge
and sought to have a different judge assigned who would not
grant a downward departure. (Id. at 11).
he seeks to proceed in forma pauperis, the Court must screen
Braxton's Amended Complaint. See 28 U.S.C.
§ 1915(e)(2)(B) (2012); Michau v. Charleston
Cty., S.C., 434 F.3d 725, 728 (4th Cir. 2006). As part
of its screening process, the Court may dismiss a case if it
determines that: (A) the allegation of poverty is untrue; or
(B) the action or appeal (i) is frivolous or malicious; (ii)
fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune
from such relief. 28 U.S.C. § 1915(e)(2). The standard
for determining whether a plaintiff has failed to state a
claim under 28 U.S.C. § 1915(e)(2)(B)(ii) is the same as
the standard for reviewing a motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6). De'Lonta v.
Angelone, 330 F.3d 630, 633 (4th Cir. 2003).
Accordingly, Braxton's Amended Complaint “must
contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)).
officials, such as judges and prosecutors, receive absolute
immunity because they must be able to execute certain
official duties without the constant fear of lawsuits.
See Slump v. Sparkman, 435 U.S. 349, 362-63 (1978)
(judicial immunity); Imbler v. Pachtman, 424 U.S.
409, 430 (1976) (prosecutorial immunity). In determining
whether an individual is entitled to absolute prosecutorial
immunity, courts consider the functions performed by the
official, rather than his title. Forrester v. White,
484 U.S. 219, 229 (1988). An official is entitled to immunity
when his actions are prosecutorial in nature.
Pachtman, 424 U.S at 410. Generally, prosecutorial
actions are those “intimately associated with the
judicial phase of the criminal process.” Id.
at 430. Thus, when a prosecutor is working “within the
scope of his duties in initiating and pursuing a criminal
prosecution, ” he remains within the ambit of absolute
immunity. Id. at 410. To the extent that Braxton
brings this action against AUSA Purcell for his prosecutorial
actions, Purcell is entitled to absolute immunity.
Braxton's claim against Szekely, privately retained
attorneys do not act under color of state law even if they
are appointed by the court. See Deas v. Potts, 547
F.2d 800, 800 (4th Cir. 1976); see also Hall v.
Quillen, 631 F.2d 1154, 1155-56 (4th Cir. 1980). In
addition, public defenders do not act under color of state
law when performing a lawyer's traditional functions as
counsel to a defendant in a criminal proceeding. Polk Cty
v. Dodson, 454 U.S. 312, 325 (1981). Thus, Braxton's
§ 1983 claims that Szekely violated Braxton's civil
rights while acting in his capacity as Braxton's
court-appointed counsel will be dismissed for failure to
state a claim.
an attorney who conspires with a government official to
violate constitutional rights does act under color of state
law, evidence of the conspiracy is required. See Tower v.
Glover, 467 U.S. 914, 920 (1984); Phillips v.
Mashburn, 746 F.2d 782, 785 (11th Cir. 1984) (holding
that plaintiff must make more than naked assertion of
conspiracy). Here, Braxton has done nothing more than make
conclusory claims that Szekely conspired with AUSA Purcell.
During his criminal proceedings, Braxton raised identical
allegations as those raised in his Amended Complaint when he
sought to removed AUSA Purcell from his case and when he
moved for a new trial. Motion to Remove AUSA Purcell from
Representing the Government at 2-11, Braxton, No.
9-478 (D.Md. Sept. 11, 2015); Motion for a New Trial at 3-21,
Braxton, No. 9-478 (D.Md. Sept. 3, 2015). The trial
court characterized Braxton's claims of conspiracy
between AUSA Purcell and Szekely as follows:
The Court has carefully reviewed this Motion and its many
truly wild allegations. In support of the Motion, the
Defendant proffers nothing other than his own speculation. He
does not offer a shred of proof in support of his theory that
Mr. Purcell entered into a conspiracy with his former
counsel, Mr. Szekely to thwart the Defendant. The Motion is
filled with scurrilous accusations and groundless
assumptions. Conversely, the docket (with crystal clarity)
reveals the pathway by which this case travelled to its
current posture. Careful review of the record reveals that at
every step along the way counsel, both for the Government and
for the Defendant, behaved and performed professionally.
Braxton, No. 9-478 (D.Md. Sept. 15, 2015) (order
denying Braxton's Motion to Remove AUSA Purcell). There,
as here, Braxton's conclusory allegations are
insufficient to state a claim upon which relief can be
granted. Accordingly, Braxton's Amended Complaint will be
dismissed pursuant to 28 U.S.C. §1915(e).
is advised that under 28 U.S.C. §1915(g) he will not be
granted in forma pauperis status if he has on three or more
prior occasions, while incarcerated or detained in any
facility, brought an action or appeal in a court of the
United States that was dismissed on the grounds that it is
frivolous, malicious, or fails to state a claim upon which
relief may be granted, unless the prisoner is under imminent
danger of serious physical injury. This dismissal is
Braxton's second strike. A separate order follows.
 The Clerk will be directed to amend
the docket to reflect that Andrew R. Szekely is named as an