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


6-7-2005

Banda v. New Jersey
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1043




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Recommended Citation
"Banda v. New Jersey" (2005). 2005 Decisions. Paper 1055.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1055


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BPS-237                                                          NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 05-1043
                                   ________________

                                   JOHN M. BANDA,
                                            Appellant

                                              v.

       STATE OF NEW JERSEY; ATTORNEY GENERAL OF NEW JERSEY;
              MARK SINGER, DEPUTY ATTORNEY GENERAL;
                      SERENA PERRETTI, JUDGE;
              JAMES MCGREEVEY; FORMER N.J. GOVERNOR
                     _______________________________________

                     On Appeal From the United States District Court
                               For the District of New Jersey
                                (D.C. Civ. No. 04-cv-05632)
                      District Judge: Honorable Anne E. Thompson
                     _______________________________________

           Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
                                    May 12, 2005

     BEFORE: RENDELL, FISHER and VAN ANTWERPEN, CIRCUIT JUDGES

                                   (Filed: June 7, 2005)

                               _______________________

                                      OPINION
                               _______________________

PER CURIAM

       John Banda appeals the order of the United States District Court for the District of

New Jersey dismissing his civil rights action. Banda is currently a resident of the Special
Treatment Unit at Avenel, New Jersey. He filed a complaint pursuant to 42 U.S.C.

§ 1983 against the State of New Jersey, the state attorney general, a state court judge, and

the former governor. In his complaint, Banda alleged that the defendants violated his

constitutional rights when they abused their authority and unlawfully caused his civil

commitment under the Sexually Violent Predator Act, even though he was not convicted

of a sex offense. As relief, Banda sought unrestricted release from confinement,

correction and expungement of his court records, damages, and assorted other injunctive

relief. Banda was granted in forma pauperis status in District Court. The District Court

dismissed the complaint under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim

upon which relief may be granted.

       Banda timely filed a notice of appeal.1 He has also filed a motion for a “protection

clause,” seeking injunctive relief. We have jurisdiction pursuant to 28 U.S.C. § 1291.

Banda has been granted leave to proceed in forma pauperis on appeal. Upon

consideration of the record, we will dismiss the appeal under section 1915(e)(2)(B) for

lack of legal merit.

       The District Court concluded that Banda’s section 1983 action cannot stand until

the findings that led to his civil commitment as a sexually violent predator are invalidated.




       1
        The District Court subsequently denied Banda’s motion for reconsideration.
Banda did not file an amended notice of appeal regarding this post-decision motion, so
the denial of the motion for reconsideration is not before us. See Fed. R. App.
P. 4(a)(4)(B).

                                             2
See Heck v. Humphrey, 

(1994). We agree. Success on Banda’s claims

would necessarily imply the invalidity of his confinement and are not cognizable at this

time in a section 1983 action. See Wilkinson v. Dotson, — U.S. —, 

,

1248 (2005). The proper means of seeking immediate release from confinement, or

seeking an earlier release from confinement, is through a petition for writ of habeas

corpus. Preiser v. Rodriguez, 

, 489 (1973). See also Brock v. Weston,

, 890 (9th Cir. 1994) (like criminal incarceration, involuntary commitment

satisfies section 2254's “in custody” requirement). Accordingly, the District Court

properly dismissed the complaint. We note, however, that a dismissal pursuant to Heck

should be without prejudice to Banda bringing a section 1983 action if he is ultimately

successful in invalidating his civil commitment. See Fottler v. United States, 

, 1065-66 (10th Cir. 1996).

       Lastly, Banda’s motion for a “protection clause” seeks an order to protect him

from harassment by all employees of the State of New Jersey during the pendency of

these proceedings. To the extent that Banda’s motion relates to the matters raised in his

complaint, we deny the motion. To the extent that the motion raises new allegations

regarding the actions of unnamed staff members of the Special Treatment Unit, we deny

the motion, as these matters were not raised before the District Court and are not properly

before us on appeal.

       We will dismiss this appeal under 28 U.S.C. § 1915(e)(2)(B).



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