Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-28-2008

Thomas Terry v. City of Pittsburgh
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2374




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Recommended Citation
"Thomas Terry v. City of Pittsburgh" (2008). 2008 Decisions. Paper 313.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/313


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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 08-2374
                                     ___________

                                  THOMAS TERRY,
                                           Appellant

                                           v.

    CITY OF PITTSBURGH; ROBERT E. COLEVILLE; KIM BERKELEY CLARK;
STEPHEN ZAPPALA, Jr.; RONALD WADDY; JAMES MCGREGOR; JAMES HEYL;
MARGARET GOLD; HELEN LYNCH; RACHELLE TERRY; LAURA BETH FLECK,
in their individual and personal capacities; LESTER G. NAUHAUS; SHELLEY STARK;
           CANDACE CAIN; FRANCIS CAIAZZA; DONETTA W. AMBROSE
                        ____________________________________

                    On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                             (D.C. Civil No.2-08-cv-00192)
                    District Judge: Honorable Terrence F. McVerry
                     ____________________________________

  Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or Summary
             Action Pursuant to Third Circuit L.A.R. 27.4 and I.O.P. 10.6
                                   October 17, 2008
                Before: BARRY, AMBRO and SMITH, Circuit Judges

                           (Opinion filed October 28, 2008)
                                      _________

                                      OPINION
                                      _________

PER CURIAM

      This is an appeal from the District Court’s dismissal of Thomas L. Terry’s civil
rights complaint. For the following reasons, we will dismiss this appeal. See 28 U.S.C.

§ 1915(e)(2)(B)(i).

       Terry is a prisoner currently incarcerated at the State Correctional Institution at

Mercer, Pennsylvania. In February 2008 he filed a civil rights complaint pursuant to the

Civil Rights Act of 1871, 42 U.S.C. §§ 1983, 1985, 1986 and 1988, against police

officers, district attorneys, public defenders, a judge and witnesses involved in his

criminal conviction in the Court of Common Pleas of Allegheny County in July 1993. In

his complaint, Terry also named two federal judges who adjudicated his habeas corpus

petition arising out of his 1993 conviction. Terry alleged, inter alia, that defendants

falsified evidence and testimony in order to obtain his conviction for aggravated assault,

burglary, and spousal sexual assault. The District Court, adopting the Report and

Recommendation of the Magistrate Judge, dismissed the complaint for failure to state a

claim upon which relief can be granted. See 28 U.S.C. § 1915(e)(2)(B)(i).

       For substantially the reasons given by the District Court, we agree that Terry has

failed to state a claim upon which relief may be granted. The Supreme Court has held

that, if judgment in favor of a plaintiff in a civil suit under 42 U.S.C. § 1983 would

necessarily imply the invalidity of a prior criminal conviction, the complaint must be

dismissed unless the plaintiff can demonstrate that the conviction or sentence has already

been invalidated. See Heck v. Humphrey, 

, 484-87 (1994). Thus, before

Terry may bring a complaint alleging that he was convicted based on falsified evidence



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and testimony, he must first demonstrate that his conviction or sentence has been

invalidated.1 Terry has failed to make such a showing. Moreover, judicial officers have

absolute immunity from suit when acting within their official capacities. See Mireles v.

Waco, 

, 12 (1991) (per curiam). Therefore, Terry’s claims against the judges

named in his complaint must also fail.

       Accordingly, because Terry’s appeal lacks arguable legal merit, we will dismiss it

pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). Terry’s motion for summary action and

motions for discovery, a hearing, bill of particulars, and subpoenas are denied.




   1
     To the extent that Terry attempts to raise ineffective assistance of counsel or
otherwise attempts to challenge the validity of his conviction, we note that he must first
obtain permission from this Court in order to file a second or successive habeas corpus
petition. See 28 U.S.C. § 2244(b)(3)(A).

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