United States District Court, W.D. Pennsylvania
PARADISE BAXTER UNITED STATES DISTRICT JUDGE.
prisoner civil rights action was commenced on July 24, 2019
with the filing of Plaintiffs motion for leave to proceed
in forma pauperis, ECF No. 1, and the lodging of a
complaint against Defendants John Daneri (the District
Attorney of Erie County), Tom Wolf (Governor of the
Commonwealth of Pennsylvania), Josh Shapiro
(Pennsylvania's Attorney General), and Michael Clark
(Warden of the State Correctional Institution at Albion
("SCI-Albion")). See ECF No. 1-1. The
complaint seeks redress under 42 U.S.C. §1983 for the
alleged violations of Plaintiff s rights under the First,
Sixth and Fourteenth Amendments to the U.S. Constitution.
of relevant background, the Court notes that Plaintiff is an
inmate at SCI-Albion and is serving a prison sentence imposed
in 1998 by the Lebanon County Court of Common Pleas.
According to Plaintiff, his state sentence is illegal because
the predicate crime - criminal attempt to commit third degree
murder - is not crime that is recognized under Pennsylvania
law. See Id. ¶12. This civil action arises from
Plaintiffs unsuccessful attempts to collaterally attack his
state conviction and sentence through the filing of a
"Prerogative Writ" on March 16, 2016 in the Erie
County Court of Common Pleas. Plaintiff contends that the
Defendants' actions and inactions in connection with
those proceedings violated his constitutional rights and
prevented him from rectifying the injustice of his unlawful
sentence. In particular, Plaintiff appears to be complaining
that the Defendants wrongfully made it appear in the state
court proceeding that Plaintiffs underlying conviction was
for attempted homicide, rather than (the non-existent crime)
attempted third-degree murder. As relief in this civil
action, Plaintiff requests that the Defendants be found
jointly and severally liable and that his conviction for
attempted third degree murder be "vacated, set aside and
declared null and void." ECF No. 1-1, ¶59.
i.f.p. motion and complaint were initially referred to United
States Magistrate I Judge Richard A. Lanzillo for report and
recommendation ("R&R") in accordance with the
Magistrates Act, 28 U.S.C. §636(b)(1), and the Local
Rules for Magistrates. On August 5, 2019, Judge Lanzillo
issued a Magistrate Judge's R&R recommending that
Plaintiffs motion for leave to proceed in forma
pauperis be granted and the complaint be dismissed as
frivolous. ECF No. . As to the recommended dismissal, the
Magistrate Judge reasoned that Plaintiff was improperly
attempting, through this civil rights lawsuit, to challenge
the "fact or duration" of his confinement - relief
that is available solely through a federal habeas corpus
proceeding. See ECF No. 2 at 3 (citing authority).
Judge Lanzillo therefore recommended that the instant
proceeding be dismissed without prejudice to Plaintiffs
ability to pursue his allegations by way of a habeas corpus
petition. Id. Plaintiff filed objections to the
R&R on August 19, 2019. ECF No. 4.
objections, Plaintiff essentially restates his argument as to
why his underlying conviction was void ab initio.
Plaintiff fails, however, to address the central defect
identified by the Magistrate Judge - i.e., he has chosen the
wrong procedural vehicle by which to make the
argument that his underlying conviction is invalid. Moreover,
even if Plaintiff is seeking monetary damages or some other
form of relief not available through habeas corpus
proceedings, his §1983 action is still barred under the
holding of Heck v. Humphrey, 512 U.S. 477 (1994),
inasmuch as the nature of Plaintiffs' §1983 claims
necessarily calls into question the validity of his
underlying state court conviction. See Id. at 486-87
(holding that, in order for a 42 U.S.C. §1983 plaintiff
"to recover damages for allegedly unconstitutional
conviction or imprisonment," he "must prove 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"); Thompson v. Pennsylvania
Bd. of Prob. & Parole, No. 19-1132, 2019 WL 4597627,
at *1 (3d Cir. Sept. 23, 2019) ("In Heck, the
Supreme Court held that a state prisoner's claim for
damages is not cognizable under 42 U.S.C. § 1983 if it
calls into question the lawfulness of her conviction or
confinement, unless she can demonstrate that the conviction
or sentence has already been invalidated.").
even if the Court were to construe Plaintiffs pleading as a
de facto petition for a writ of habeas corpus under
28 U.S.C.§2254, the Court would be constrained to
dismiss the petition for lack of subject matter jurisdiction.
Because Plaintiff has previously filed at least one prior
§2254 petition, see Sirera v. DiGuglielmo,
Civil No. 3:CV-06-0604, 2006 WL 2038391 (M.D. Pa. July 18,
2006), he must obtain authorization from the United States
Court of Appeals for the Third Circuit before he can file a
second or successive petition. See 28 U.S.C.
§2244(b)(3)(A); see also Sierra v. Kane, No.
3:CV-17-1584, 2017 WL 6055343, at *3 (M.D. Pa. Dec. 7, 2017)
(dismissing plaintiffs second §2254 petition for lack of
jurisdiction under 28 USC. §2243(b)(3) and denying a
certificate of appealability), reconsideration
denied, No. 3:CV-17-1584, 2018 WL 1123719 (M.D. Pa. Mar.
1, 2018), and certificate of appealability denied sub
\\nom. Sierra v. Attorney Gen. Pennsylvania, No.
18-1150, 2018 WL 3583065 (3d Cir. Mar. 23, 2018).
after de novo review of the complaint and documents
in the case, together with the Report and Recommendation and
Plaintiffs objections thereto, the following order is
NOW, this 30th day of October, 2019;
ORDERED that the Plaintiffs Motion for Leave to Proceed
In Forma Pauperis, ECF No. , shall be and, hereby
is GRANTED, and the Clerk is directed to file the complaint.
Court having reviewed the complaint in accordance with the
requirements 28 U.S.C. § 1915 and § 1915 A, and the
undersigned having found that the complaint is frivolous
and/or otherwise fails to state a claim upon which relief can
be granted, IT IS ORDERED, pursuant to 28 U.S.C.
§1915(e)(2), that the complaint shall be, and hereby is,
DISMISSED without prejudice to Plaintiff s ability to seek
leave from the United States Court of Appeals for the Third
Circuit to file a successive petition for habeas corpus
relief under 28 U.S.C. §2254.
FURTHER ORDERED that the Report and Recommendation of
Magistrate Judge Lanzillo, issued on August 5, 2019, ECF No.
, shall be, and hereby is, adopted as the opinion of this
FURTHER ORDERED that Plaintiff s "Motion to Remand
and/or Alternatively Notice of Removal" (ECF No. )
and Plaintiffs "Motion for Corrections" (ECF No.
) shall be, and hereby are, DISMISSED as moot. Plaintiffs
"Petition by Permission to Motion for Order" (ECF
No. ) shall be, and hereby is, DENIED. There being no
further motions or claims pending before this Court in the
above-captioned civil action, the Clerk is directed to mark
this case "CLOSED."