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


8-6-2007

Hewlett v. Abraham
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1931




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Recommended Citation
"Hewlett v. Abraham" (2007). 2007 Decisions. Paper 613.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/613


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DLD-321                                                      NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                              ________________

                                    No. 07-1931
                                 ________________

                              EUGENE H. HEWLETT,

                                         Appellant
                                         v.

    LYNNE ABRAHAM; 1ST JUDICIAL DISTRICT; EVAN SILVERMAN,
                Office of District Attorney of Philadelphia, PA;
        MICHAEL J. KELLY, Office of Public Defender; POLICEMAN
  LOUIS POLICEMAN, BADGE NUMB #2360; POLICEMAN LEONARD ZITO,
     BADGE NUMB 4898; POLICEMAN JOHN DOE, Badge UNK of The
      Philadelphia Police Dept.; OFFICE OF PHILADELPHIA DISTRICT
         ATTORNEY; THE PHILADELPHIA POLICE DEPARTMENT
                  ____________________________________

                   On Appeal From the United States District Court
                       For the Eastern District of Pennsylvania
                                (D.C. No. 06-cv-2864)
                   District Judge: Honorable Mary A. McLaughlin
                    ____________________________________

          Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)or
            Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                    July 26, 2007

             Before: BARRY, AMBRO and FISHER, CIRCUIT JUDGES.

                               (Filed: August 6, 2007)
                             _______________________

                                    OPINION
                             _______________________

PER CURIAM
       Appellant Eugene H. Hewlett appeals pro se from the District Court’s order

dismissing his civil rights action as untimely and the District Court’s subsequent order

denying his motion for reconsideration. Hewlett’s complaint arises out of his conviction

for aggravated assault in 1985 and his overnight detention in March 2003 for the alleged

purchase of a firearm as a felon. We need not repeat the details of Hewlett’s claims here

as they are well-known to the parties and are summarized in the District Court’s

memorandum. In brief, Hewlett enumerates what he believes were various constitutional

problems with his arrest and 1985 trial. Hewlett further contends that he was falsely

imprisoned in 2003 because his incarceration was based on the prior improper 1985

felony conviction. We also read Hewlett’s complaint as alleging that the Philadelphia

District Attorney engaged in malicious prosecution and subjected him to double jeopardy

with respect to the 2003 incarceration. Hewlett seeks millions of dollars in damages.

       We have jurisdiction over this appeal under 28 U.S.C. § 1291. Because Hewlett is

proceeding in forma pauperis, we must analyze the appeal for possible dismissal pursuant

to 28 U.S.C. § 1915(e)(2)(B). Under § 1915(e)(2)(B), we must dismiss an appeal if it is

frivolous. An appeal may be dismissed as frivolous if it has no arguable basis in law or

fact. Neitzke v. Williams, 

, 325 (1989).

       To the extent Hewlett complains of constitutional problems with his 1980s arrest,

prosecution, trial, and sentencing, those claims are clearly time-barred as the events

complained of occurred more than twenty years ago. See Rose v. Bartle, 

,

348 n.13 (3d Cir. 1989) (Pennsylvania’s two-year limitations period for personal injury

                                             2
actions is applicable in section 1983 actions).1 Further, the District Court properly

concluded that Hewlett’s false imprisonment claim was time-barred because it is

undisputed that Hewlett was released on March 3, 2003, and failed to file suit until more

than two years later in June 2006. See id.; see also Wallace v. Kato, 

,

1096 (2007) (statute of limitations begins to run against an action for false imprisonment

when the alleged false imprisonment ends).

       Hewlett’s malicious prosecution claim likewise fails because prosecutors are

immune from a civil suit for damages under section 1983 for initiating a prosecution and

presenting the State’s case. See 

(prosecutors are absolutely

immune from civil liability for activities “intimately associated with the judicial phase of

the criminal process”) (quoting Imbler v. Pachtman, 

(1976)). See also

Kulwicki v. Dawson, 

, 1463-64 (3d Cir. 1992) (decision to initiate a

prosecution is at the core of a prosecutor’s judicial role). Hewlett’s double jeopardy

claim is frivolous given that the charge for which he was allegedly wrongfully

incarcerated was ultimately dismissed for lack of prosecution.

       For these reasons, we will dismiss the appeal pursuant to 28 U.S.C.

§ 1915(e)(2)(B).




       1
       In any event, most of these claims would be barred under Heck v. Humphrey, 

(1994).

                                              3