Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-28-2007

Nicholas v. Evans
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4362




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Recommended Citation
"Nicholas v. Evans" (2007). 2007 Decisions. Paper 1415.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1415


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HLD-74                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 06-4362
                                   ________________

                               EDWARD J. NICHOLAS,
                                    Appellant

                                              v.

                        SCOTT EVANS; LOWELL WITMER
                      ____________________________________

                    On Appeal From the United States District Court
                       For the Western District of Pennsylvania
                            (W.D. Pa. Civ. No. 06-cv-00112)
                     District Judge: Honorable Sean J. McLaughlin
                    _______________________________________

          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

the United States District Court for the Western District of Pennsylvania dismissing his

civil rights complaint. 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

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conspiracy. He was sentenced to six and one-half years to twenty years in prison. In

May 2006, Nicholas filed this civil rights action under 42 U.S.C. § 1983 against a judge

and the Court Clerk of Dauphin County. His complaint alleged that the jury found him

not guilty of the aggravated assault charge and, thus, that he is being held in violation of

due process. He requested that the court confirm his innocence and award him millions

of dollars in damages.

              The Magistrate Judge recommended dismissal of the complaint pursuant to

28 U.S.C. § 1915(e)(2)(B) as barred by, among other theories, the favorable termination

rule announced in Heck v. Humphrey, 

(1994). The District Court affirmed

and adopted the Magistrate Judge’s report and recommendation. This appeal followed.

              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).1 See Allah v. Seiverling, 

, 223 (3d Cir. 2000).

              According to the rule announced by the Supreme Court in Heck, when a

plaintiff brings a civil rights suit that would necessarily imply the invalidity of his

conviction or sentence, “the complaint must be dismissed unless the plaintiff can

demonstrate that the conviction or sentence has already been 

                 Although the District Court dismissed the complaint without giving
Nicholas an opportunity to amend as required by Grayson v. Mayhew State Hosp., 

(3d Cir. 2003), we find no error because any amendment would have been
futile. See 

                                               2
487. The gravamen of Nicholas’ complaint is that his conviction and sentence for

aggravated assault is invalid because it conflicts with the jury’s putative verdict of not

guilty. However, Nicholas’ conviction has not been invalidated. See Nicholas v.

Pennsylvania, No. 06-3641(3d Cir. order entered January 31, 2007) (denying a certificate

of appealability for habeas petition). Thus, the District Court was correct to dismiss the

suit.

              Accordingly, we will dismiss this appeal pursuant to 28 U.S.C.

§ 1915(e)(2)(B). Nicholas’s pending motion is denied.




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