United States District Court, M.D. Pennsylvania
October 26, 2005.
CARMAN GIRARD CRESCENZO, Plaintiff,
DETECTIVE WOLBERT, Defendant.
The opinion of the court was delivered by: JAMES McCLURE JR., District Judge
MEMORANDUM AND ORDER
Carman Girard Crescenzo ("Plaintiff"), an inmate confined at
the Monroe County Correctional Facility, Stroudsburg,
Pennsylvania, initiated this pro se civil rights action
pursuant to 42 U.S.C. § 1983. The complaint is accompanied by an
in forma pauperis application. Named as sole Defendant is
Detective Richard Wolbert of the Stroudsburg Police Department.
For the reasons outlined below, the instant complaint will be
dismissed as frivolous pursuant to § 1915(e)(2)(B)(i). Plaintiff describes himself as being bipolar and entitled to
protection under the Americans with Disabilities Act
("ADA").*fn1 See Record document no. 1, ¶ V. His complaint
indicates that on or about February 22, 1999, Detective Wolbert
conducted a search of his residence and seized videotapes,
undeveloped film and numerous pictures. See id. at ¶ IV.
Crescenzo states that he was not given a receipt for the items
which were taken. His complaint adds that "these were not illegal
but were used to defame my character & reputation in front of
newspaper magistrate's office." Id. He contends that as a
result of the introduction of these "fetish tapes (private)" his
criminal case was greatly prejudiced and his life was ruined.
Plaintiff also indicates that Detective Wolbert did not advise
him of his Miranda*fn2 rights and unfairly and improperly
labeled him as having a mental problem during his preliminary
hearing. As relief, Plaintiff seeks maximum restitution for the
alleged unconstitutional conduct of Detective Wolbert. He adds
that the Defendant should be criminally prosecuted for his
Discussion 28 U.S.C. § 1915 imposes obligations on prisoners who file
civil actions in federal court and wish to proceed in forma
pauperis. § 1915(e)(2)provides:
(2) Notwithstanding any filing fee, or any portion
thereof, that may have been paid, the court shall
dismiss the case at any time if the court 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.
A district court may determine that process should not be
issued if the complaint is malicious, presents an indisputably
meritless legal theory, or is predicated on clearly baseless
factual contentions. Neitzke v. Williams, 490 U.S. 319
(1989); Wilson v. Rackmill, 878 F.2d 772
, 774 (3d Cir.
The Court of Appeals for the Third Circuit has
added that "the plain meaning of `frivolous' authorizes the
dismissal of in forma pauperis claims that . . . are of
little or no weight, value, or importance, not worthy of serious
consideration, or trivial." Deutsch v. United States,
67 F.3d 1080
, 1083 (3d Cir. 1995). "The frivolousness determination is a
discretionary one," and trial courts "are in the best position"
to determine when an indigent litigant's complaint is appropriate for summary
dismissal. Denton v. Hernandez, 504 U.S. 25, 112 S.Ct. 1728,
It is well-settled that inmates may not use civil rights
actions to challenge the fact or duration of their confinement or
to seek earlier or speedier release. Preiser v. Rodriguez,
411 U.S. 475 (1975). As detailed above, all of the Plaintiff's
present allegations are unquestionably attacking the legality of
his present incarceration which stems from a Pennsylvania state
criminal prosecution. Consequently, under Preiser, Crescenzo
may not challenge the legality of his Monroe County
prosecution/conviction via a § 1983 complaint. Furthermore, this
Court also cannot compel Pennsylvania state officials to initiate
criminal charges against the Defendant.
With respect to Plaintiff's request for monetary damages for
alleged violation of his civil rights, the threshold question is
whether Crescenzo's action can be maintained in light of Heck v.
Humphrey, 512 U.S. 477 (1994). In Heck, the Supreme Court
ruled that a constitutional cause of action for damages does not
accrue "for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose
unlawfulness would render a conviction or sentence invalid,"
until the plaintiff proves that the "conviction or sentence has
been reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's
issuance of a writ of habeas corpus." Id. at 486-87.
In the present case, Plaintiff clearly indicates that purported
conduct by Detective Wolbert which led to his ongoing
incarceration was unlawful. It is additionally noted that
Crescenzo raised similar claims in a prior unsuccessful § 1983
action before this Court. See Crescenzo v. Wolbert, Civil No.
3:CV-01-1391. By Memorandum and Order dated September 27, 2001,
those claims were dismissed without prejudice under Heck.
Pursuant to the standards announced in Heck, Plaintiff cannot
maintain a cause of action for unlawful imprisonment until the
basis for that imprisonment is rendered invalid. Furthermore,
based on the nature of Crescenzo's allegations, a finding in his
favor would imply the invalidity and/or comprise his state
criminal prosecution. See Gibson v. Superintendent,
411 F.3d 427, 449 (3d Cir. 2005); Sanchez v. Gonzalez, No. 05-2552, 2005
WL 2007008 *2 (D.N.J. Aug. 16, 2005).
Crescenzo remains incarcerated as of the filing of this action.
Since a significant period of time has elapsed since the
dismissal of Plaintiff's prior § 1983 action, it would appear
that the Monroe County criminal prosecution of Crescenzo was
successful. However, the present complaint does not acknowledge
that a criminal conviction has occurred. More importantly,
Plaintiff has not demonstrated that the state criminal charges/conviction challenged herein have
been invalidated, expunged or reversed. Thus, Crescenzo's request
for compensatory damages is premature under Heck and Gibson
because his present cause of action for monetary damages must be
deferred until his underlying state criminal
prosecution/conviction is rendered invalid.
If Plaintiff is able to successfully challenge his Monroe
County criminal prosecution/conviction, under Heck, he could
reassert his claim for damages in a properly filed civil rights
complaint. Since Plaintiff's complaint is "based on an
indisputably meritless legal theory" it will be dismissed,
without prejudice, as legally frivolous. Wilson,
878 F.2d at 774. Consequently,
IT IS HEREBY ORDERED THAT:
1. The complaint is dismissed without prejudice as
frivolous under 28 U.S.C. § 1915 (e)(2)(B)(i).
2. The Clerk of Court is directed to close this
case.*fn4 3. Any appeal from this order will be deemed
frivolous, without probable cause and not taken in
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