BLD-036                                                NOT PRECEDENTIAL

              UNITED STATES COURT OF APPEALS
                   FOR THE THIRD CIRCUIT
                        ____________

                              No. 10-3030
                             ____________

                       LANCE M. WHITE, SR.,
                            Appellant,
                               v.

         THE PENNSYLVANIA STATE POLICE, Troop "D"
      Butler County PA and their Supervisors and Administrative
        Body; THE GOVERNOR OF PENNSYLVANIA; THE
         BUTLER COUNTY DISTRICT'S OFFICE; BUTLER
         COUNTY PUBLIC DEFENDERS OFFICE, both their
             Supervisors and County Commissioners; THE
       PENNSYLVANIA ATTORNEY GENERAL'S OFFICE,
       and its agents to include supervisors and the Pennsylvania
       Attorney General; BRIAN COUCH, PA State Trooper of
     the State Police Troop "D" Butler County; ALAN COLLINS,
    PA State Trooper of the State Police Troop "D" Butler County;
     PAUL EPPS, PA State Trooper of the State Police Troop "D"
     Intelligence Unit; SCHAFFER, PA State Trooper of the State
        Police Troop "D" Butler County; KOSCINSKI, PA State
          Trooper of the State Police Troop "D" Butler County;
       MICHAEL POULOS, PA State Trooper of the State Police
         Troop "D" Butler County; CORPORAL TIMOTHY P.
        WILES, PA State Trooper - Troop "D" Vice Supervisor;
     CORPORAL KILLGALLON, PA State Trooper of the State
         Police Troop "D" Butler County; CORPORAL JAMES
      OLCOZAK, PA State Trooper of the State Police Troop "D"
       Vice Unit Butler County; LT. RONALD PATE, PA State
     Police Drug Task Force Supervisor of the Butler State Police;
       A NUMBER OF UNKNOWN PA STATE POLICE AND
      OTHER STATE POLICE EMPLOYEES to be named upon
    discovery of their roles in this conspiracy starting in 2003 and
      continuing to date, all parties are being sued in their official
      capacity while acting under the color of state law and also in
     their individual capacity while acting under color of state law

               __________________________________
                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                              (D.C. Civ. No. 10-cv-00464)
                          District Judge: Donetta W. Ambrose
                       __________________________________

         Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
         or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                  November 12, 2010

         Before: SLOVITER, JORDAN and GREENAWAY, JR., Circuit Judges

                           (Opinion filed: November 24, 2010)
                                     ____________

                                        OPINION
                                      ____________



PER CURIAM

              Appellant Lance M. White, Sr., a state prisoner, filed an in forma pauperis

civil rights complaint in the United States District Court for the Western District of

Pennsylvania on April 9, 2010. He named as defendants Pennsylvania State Troopers

Brian Couch and Alan Collins, among many others. In a lengthy and at times confusing

narrative, White alleged the essential facts that Couch and Collins fabricated an arrest

warrant on drug charges against him on September 23, 2003. He finally was charged and

brought before a magistrate in Butler County on January 9, 2006, and then released on his

own recognizance. A preliminary hearing was held on May 5, 2008, at which his bail

was continued, and this is where White’s narrative ends. White alleged in the complaint




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a malicious prosecution claim, in violation of his constitutional rights, in connection with

the arrest and his subsequent imprisonment, and he requested that counsel be appointed.

              Prior to service of the complaint, the Magistrate Judge filed a Report and

Recommendation, in which she concluded that White, a state prisoner, was challenging a

conviction which had never been invalidated. See Heck v. Humphrey, 

(1994). She recommended dismissal of the complaint pursuant to Federal Rule of Civil

Procedure 12(b)(6). In accordance with the Magistrate’s Act, 28 U.S.C. § 636(b)(1)(B)

and (C), and Rule 72.D.2 of the Local Rules for Magistrates, objections to this Report

and Recommendation were due by June 2, 2010. On June 4, 2010, the deadline for the

filing of objections having passed, the District Court dismissed White’s civil rights

complaint under the in forma pauperis statute, 28 U.S.C. § 1915(e)(2)(B)(ii), and denied

his motion for appointment of counsel.

              White appeals. Our Clerk granted him leave to appeal in forma pauperis

and advised him that the appeal was subject to summary dismissal under 28 U.S.C. §

1915(e)(2)(B) or summary action under Third Cir. LAR 27.4 and I.O.P. 10.6.

              We will summarily vacate the order of the District Court and remand the

matter for further proceedings because no substantial question is presented by this appeal,

Third Circuit LAR 27.4 and I.O.P. 10.6. We have jurisdiction under 28 U.S.C. § 1291.

Although the District Court was unaware of this, on the same day the court dismissed

White’s complaint, his objections were received and filed on the district court docket. It

appears the District Court was not advised that the objections had in fact been submitted.


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Insofar as the objections are dated May 28, 2010 and were mailed from prison on June 2,

2010 (according to the postmark), they may be considered timely filed. White is a

prisoner and he thus receives the benefit of the “prison mailbox rule.” See Houston v.

Lack, 

, 276 (1988).

              White asserts in his objections that the drug charges brought against him in

2006, which resulted from his arrest in September, 2003, were “nolle prossed” on May

19, 2009, at which point his cause of action accrued. The term of imprisonment he

currently is serving involves a conviction he did not intend to challenge in his civil rights

complaint. See Objections, at 8, 14. In elucidating his claim of malicious prosecution,

White states: “The defendants Brian Couch and Alan Collins fabricated a drug charge

against the plaintiff in September of 2003, and for 5 years and six months used the

fabricated charge to violate plaintiff’s constitutional rights and conspired with a number

of other defendants who assisted in the false arrest, false imprisonment and official

oppression.” 

White attached a copy of a state court order to his objections, and

the order indicates that a judge of the Court of Common Pleas of Butler County gave

permission on May 19, 2009 to enter a Nolle Prosequi in the criminal case against White

docketed at CP-10-CR-0000099-2006.

              A state prisoner’s section 1983 action is barred, no matter the relief sought,

if success in that action would necessarily demonstrate the invalidity of his conviction.

Wilkinson v. Dotson, 

, 81-82 (2005) (citing 

). As a

prerequisite to a civil suit, a plaintiff must prove that his conviction and sentence have


                                              4
been “reversed on direct appeal, expunged by executive order, declared invalid by a state

tribunal authorized to make such a determination, or called into question by a federal

court’s issuance of a writ of habeas corpus.” 

A claim bearing the

necessary relationship to a conviction or sentence that has not been invalidated is not

cognizable. See 

              The nolle prosequi in the criminal case docketed at CP-10-CR-0000099-

2006 on May 19, 2009 raises the question whether it constitutes a favorable termination

in White’s malicious prosecution case, and, if it does, whether Heck applies to bar

White’s civil rights action. We leave this question to the District Court. Because the

District Court did not consider the merits of White’s objections, we will remand for its

consideration in the first instance. See Grandison v. Moore, 

, 149 (3d Cir.

1986). The abandonment of proceedings may not indicate a favorable termination if it

“results from: an agreement or compromise with the accused; misconduct on the part of

the accused in order to prevent trial; or the impossibility or impracticability of having the

accused tried.” Washington v. Summerville, 

, 557 (7th Cir. 1997) (citing

Restatement (Second) of Torts §§ 660, 661 (1970)).

              We realize that the District Court did not specifically adopt the Report and

Recommendation as the Opinion of the Court in dismissing White’s complaint, and thus

the court may have dismissed the action on some basis other than Heck. Nevertheless, on

remand the District Court should consider White’s objections since they were timely filed




                                              5
without the court’s knowledge. We express no view whatever on the proper disposition

of White’s case under the in forma pauperis statute.

For the foregoing reasons, we will summarily vacate the order of the District Court and
remand the matter for further proceedings.




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