Filed: Mar. 28, 2007
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit 3-28-2007 Nicholas v. Heffner Precedential or Non-Precedential: Non-Precedential Docket No. 06-3919 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007 Recommended Citation "Nicholas v. Heffner" (2007). 2007 Decisions. Paper 1418. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1418 This decision is brought to you for free and open access by the Opinions of the
Summary: Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit 3-28-2007 Nicholas v. Heffner Precedential or Non-Precedential: Non-Precedential Docket No. 06-3919 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007 Recommended Citation "Nicholas v. Heffner" (2007). 2007 Decisions. Paper 1418. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1418 This decision is brought to you for free and open access by the Opinions of the ..
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Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
3-28-2007
Nicholas v. Heffner
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-3919
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
Recommended Citation
"Nicholas v. Heffner" (2007). 2007 Decisions. Paper 1418.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1418
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
HLD-71 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 06-3919
________________
EDWARD J. NICHOLAS,
Appellant
v.
DONALD HEFFNER, Badge 15, Harrisburg Police Department;
ZYGMONT PINES; MARSHA STEWART; LOWELL WITMER; GEORGE ZOZOS;
JOHN DOE, Harrisburg Police Station; AMERICAN DETECTIVE AGENCY;
JAMES P. BARKER; CAPITOL PAVILLION; THOMAS CORBETT; JOHN DOE,
Staff Member ROB; FRANCIS R. FILIPI; WILLIAM LOWRY, Supervisor
of Parole; SENTENCING COMMISSION; SUPERIOR COURT/MIDDLE DISTRICT;
UNITED STATES ATTORNEY GENERAL; UNITED STATES JUDICIAL
COUNSEL; MICHELLE ZIMMERMAN
____________________________________
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(M.D. Pa. Civ. No. 06-cv-01478)
District Judge: Honorable John E. Jones III
_______________________________________
Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
March 9, 2007
BEFORE: SCIRICA, Chief Judge, WEIS and GARTH, Circuit Judges
(Filed: March 28, 2007)
_______________________
OPINION
_______________________
PER CURIAM.
Edward J. Nicholas, a state prisoner proceeding pro se, appeals an order of
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the United States District Court for the Middle District of Pennsylvania dismissing his
civil rights complaint and denying his motion for temporary injunctive relief as moot. We
will dismiss his appeal pursuant to 28 U.S.C. § 1915(e)(2)(B).
On May 15, 1998, following a jury trial, Nicholas was convicted of
aggravated assault and acquitted of one count of robbery and two counts of criminal
conspiracy. He was sentenced to six and one-half years to twenty years in prison. In July
2006, Nicholas filed a civil rights action, which he later amended, alleging that the police
falsely arrested him in 1997, and maliciously prosecuted and falsely imprisoned him in
1998, for aggravated assault, robbery and conspiracy, in violation of his right to due
process. He alleged that the police forged police reports to effect a false arrest and
tampered with witnesses. He also claimed that certain court administrators withheld
documentation supporting his case. Nicholas sought various remedies, including
damages, federal investigation and prosecution of the defendants, and the termination of
their employment. On August 15, 2006, Nicholas attempted to file a Second Amended
Complaint adding new defendants and new claims arising out of an incident that occurred
in 2006, while he was on parole.
The District Court dismissed the Second Amended Complaint as
improvidently filed and dismissed the Amended Complaint pursuant to 28 U.S.C. §
1915(e)(2)(B) as barred by the favorable termination rule announced in Heck v.
Humphrey, 512 U.S. 477 (1994). It denied Nicholas’s motions for injunctive relief and
expedited service of process as moot. This appeal followed.
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We have jurisdiction pursuant to 28 U.S.C. § 1291. Nicholas has been
granted leave to proceed in forma pauperis on appeal. Because his appeal lacks arguable
merit, we will dismiss it pursuant to § 1915(e)(2)(B)(I). See Allah v. Seiverling, 229 F.3d
220, 223 (3d Cir. 2000).
The District Court did not err in dismissing Nicholas’s Second Amended
Complaint. Had the Second Amended Complaint corrected a deficiency in the Amended
Complaint, its allowance might have been required under Grayson v. Mayview State
Hosp., 293 F.3d 103, 108 (3d Cir. 2002), absent any equitable considerations or the
futility of the amendment. Here, however, Nicholas alleged essentially a new action
against new defendants with new claims arising out of a set of operative facts that are
unrelated to the factual claims in the original or Amended Complaints.
The District Court properly dismissed Nicholas’s Amended Complaint
under § 1915(e). To the extent Nicholas seeks damages for malicious prosecution, he has
no cause of action under 28 U.S.C. § 1983 absent a showing that his conviction has been
reversed, expunged, declared invalid, or called into question by a federal court’s issuance
of a writ of habeas corpus. Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). Nicholas’s
habeas petitions in Civ. A. Nos. 05-01771 and 06-01245 were denied as barred by the
statute of limitations, and there is no indication in the record that his convictions have
otherwise been invalidated.
Assuming in Nicholas’s favor that his false arrest/imprisonment claim is not
barred by Heck, the claim is barred, in any event, by the statute of limitations. See
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Montgomery v. DeSimone, 159 F.3d 120, 126 (3d Cir. 1998). Where the statute of
limitations defense is obvious from the face of the complaint and no development of the
factual record is required to determine whether dismissal is appropriate, sua sponte
dismissal under 28 U.S.C. § 1915 is permissible. See Fogle v. Pierson,
435 F.3d 1252,
1258 (10th Cir. 2006). These requirements have been satisfied here. Nicholas’s Fourth
Amendment claim accrued when he appeared before a magistrate and was bound over for
trial or arraigned on charges. See Wallace v. Kato, __ S. Ct. __,
2007 WL 517122, at * 4-
5 (Feb. 21, 2007). Although the precise date upon which Nicholas was arraigned or
otherwise bound over for trial is not in the record, it is certain that he was arraigned
before his trial began in May 1998. Assuming in Nicholas’s favor that he was arraigned
as late as the first day of trial, under the applicable two year statute of limitations, Pa.
Cons. Stat. Ann. § 5524, he had until May 2000, to file a timely complaint. His complaint
was filed in July 2006, well after the limitations period had expired.
The District Court correctly denied injunctive relief. The remaining relief
requested is not available as the District Court lacks authority to order a federal
investigation and prosecution of the defendants or the termination of their employment.
Accordingly, we will dismiss this appeal pursuant to 28 U.S.C. §
1915(e)(2)(B). Nicholas’s pending motions are denied.
4
