Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-20-2005

McNeil v. Rizzo
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3209




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Recommended Citation
"McNeil v. Rizzo" (2005). 2005 Decisions. Paper 516.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/516


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APS-353                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 05-3209

                                 ANTHONY MCNEIL,

                                                        Appellant
                                             v.

                                   ANNETTE RIZZO
                                   _______________

                    On Appeal From the United States District Court
                       For the Western District of Pennsylvania
                              (D.C. Civ. No. 05-cv-00251)
                       District Judge: Honorable Kim R. Gibson
                    _______________________________________

                    Submitted Under 28 U.S.C. § 1915(e)(2)(B)
                               September 1, 2005
        Before: SLOVITER, FUENTES AND NYGAARD, CIRCUIT JUDGES

                              (Filed: September 20, 2005)
                              _______________________

                                      OPINION
                              _______________________

PER CURIAM

      Appellant Anthony McNeil appeals from the dismissal of his complaint under 28

U.S.C. § 1915(e)(2)(B). The complaint fails to state a claim upon which relief can be

granted and seeks monetary relief against a party who is immune. We will dismiss the

appeal as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).

      On May 11, 2005, McNeil filed a complaint alleging that he is unlawfully
incarcerated at SCI-Houtzdale. He complains that he is not under any sentence and has

no charges currently pending. However, he names only one Defendant, Court of

Common Pleas Judge Annette Rizzo. The District Court found that Judge Rizzo is

absolutely immune to suit in her judicial capacity and dismissed the complaint pursuant to

§ 1915(e)(2)(B). The Court also held that if McNeil is unlawfully incarcerated, a habeas

petition under 28 U.S.C. § 2254 is the appropriate method for obtaining relief.

       We have jurisdiction under 28 U.S.C. § 1291. We will dismiss an appeal under

§ 1915(e)(2)(B)(i) when the appeal is completely lacking in legal or factual merit. See

Neitzke v. Williams, 

, 325 (1989). Assuming arguendo that McNeil is

unlawfully incarcerated, an assumption which the record does not support,1 Judge Rizzo

is still entitled to absolute immunity. See Mireles v. Waco, 

, 9-10 (1991).

Only two exceptions to judicial immunity exist. A judge is not immune from liability for

non-judicial acts, and a judge is not immune when an act, even if judicial in nature, is

taken in the absence of jurisdiction. 

McNeil does not argue, and the record

does not support, that either exception applies. Additionally, to the extent McNeil seeks

to challenge the fact of his confinement, a petition pursuant to 28 U.S.C. § 2254 is the

exclusive method for seeking relief. See Heck v. Humphrey, 

, 481 (1994)



   1
      The Magistrate Judge attached to his report and recommendation McNeil’s
Pennsylvania Superior Court docket. The docket reflects that McNeil was convicted of
multiple offenses on July 1, 2003. The Superior Court affirmed his conviction and
sentence on January 26, 2005. Contrary to McNeil’s assertion, it does not appear that he
is being held for no reason.

                                             2
(citing Preiser v. Rodriguez, 

, 488-90 (1973)).

      For the foregoing reasons, the appeal is frivolous. Accordingly, we will dismiss.