ALD-142                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 14-2819
                                      ___________

                                     VIRGIL HALL,
                                               Appellant

                                            v.

            WARDEN LORETTO FCI; MR. GOTTSHALL, Case Manager;
                 MICHAEL D. TAFELSKI, Regional Counsel
                 ____________________________________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                             (D.C. Civil No. 3:14-cv-00071)
                       District Judge: Honorable Kim R. Gibson
                      ____________________________________

         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
                                    March 19, 2015
            Before: RENDELL, CHAGARES and SCIRICA, Circuit Judges

                              (Opinion filed: April 9, 2015)
                                      _________

                                       OPINION*
                                       _________

PER CURIAM

       In the District Court, Virgil Hall largely repeated a claim with which he has had

little success in the past. Namely, he contended that he was unlawfully transferred to,
and illegally held at, the Federal Correctional Institution in Loretto, Pennsylvania (“FCI-

Loretto”) because the sentencing court’s judgment and commitment order had not been

properly executed. More specifically, he alleged that the “return” section of that order —

where the United States Marshal or a Deputy United States Marshal attests that the

defendant has been delivered to the Bureau of Prisons with a certified copy of the

judgment — was not completed. He also added that a case manager in prison improperly

modified and executed the “return” section of the order to show that the judgment and

commitment order was received at FCI-Loretto. Hall further alleged that his requests for

a correction of the document (a copy of which he attaches to his complaint) were ignored.

       Hall introduced his complaint as an action under the Federal Tort Claims Act

(“FTCA”), 28 U.S.C. § 2674, but he also cited 42 U.S.C. § 19831 in claiming violations

of the Fourth, Fifth and Eighth Amendments (relating to his detention) and First

Amendment (relating to his “right to judicial records/documents”). He further asserted

that some of the defendants’ acts and omissions were actionable under 5 U.S.C.

§ 552a(g)(1)(C), a provision of the Privacy Act of 1974. In addition, he listed several

state law causes of action (including false imprisonment). Hall sought more than one

million dollars in damages.


*
  This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
  We understand that he sought to proceed under Bivens v. Six Unknown Named Agents
of Federal Bureau of Narcotics, 

(1971), the federal counterpart to § 1983
claims against state actors. See Egervary v. Young, 

, 246 (3d Cir. 2004).

                                             2
       A Magistrate Judge issued a report and recommendation in which, in relation to

the merits of the complaint,2 he stated that Hall was seeking to renew an argument — that

he was unlawfully confined in light of 18 U.S.C. § 3621(c)3 — which had been rejected

in earlier habeas proceedings. The Magistrate Judge further explained that Heck v.

Humphrey, 

(1994), barred Hall’s suit for damages.

       In his objections (which he filed with an ifp motion that was granted, 

n.2), Hall requested leave to amend his complaint. He expressed a willingness to delete

his demand for money damages. He also presented an argument that Heck did not bar all

claims, including, inter alia, some claims of false imprisonment and his claims of

violations of the Privacy Act and the Amendments he cited. Over the objections, the

District Court adopted the report and recommendation and dismissed Hall’s complaint

with prejudice.4




2
  The Magistrate Judge administratively closed the case pending the payment of the
requisite fees or the submission of a motion to proceed in forma pauperis (“ifp”). At that
time, however, the Magistrate Judge also recommended that if the matter were reopened,
the complaint should be dismissed with prejudice.
3
  “When a prisoner, pursuant to a court order, is placed in the custody of a person in
charge of a penal or correctional facility, a copy of the order shall be delivered to such
person as evidence of this authority to hold the prisoner, and the original order, with the
return endorsed thereon, shall be returned to the court that issued it.”
4
 Hall had also filed a “motion to show cause,” in which he essentially requested that
summons issue (stating that the defendants were obliged to answer his complaint). The
District Court did not discuss this motion.

                                              3
       Hall appeals. In support of his appeal, he repeats that he should have been

permitted leave to amend and that Heck does not bar his Privacy Act claims.5 He also

asked that the District Court be instructed to rule on the show cause motion. Appellees

(although they were not served in the District Court) move for summary action based on

the District Court’s reasoning and also because an FTCA claim cannot stand against the

individual defendants named in the complaint (the only proper defendant is the United

States).

       We have jurisdiction under 28 U.S.C. § 1291. Our review of the order dismissing

Hall’s complaint is plenary. See Allah v. Seiverling, 

, 223 (3d Cir. 2000).

We review the dismissal of the state law claims and the denial of leave to amend for

abuse of discretion. See De Asencio v. Tyson Foods, Inc., 

, 311 (3d Cir.

2003); Lum v. Bank of Am., 

, 223 (3d Cir. 2004). On review, we will

summarily affirm the District Court’s judgment because no substantial issue is presented

on appeal. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6; see also Erie Telecomms., Inc. v.

City of Erie, 

, 1089 n.10 (3d Cir. 1988) (holding that we may affirm on an

alternative basis supported by the record).

       In large part, the District Court properly dismissed the complaint as Heck-barred

because success on the Bivens and FTCA claims would necessarily imply the invalidity


5
 He notes that he has also presented the Privacy Act claims in a motion under 28 U.S.C.
§ 2255 in the district court in Utah that sentenced him; he asks that his appeal be stayed
as to those claims until that court rules.

                                              4
of the fact and the duration of his confinement, which have not been elsewhere

invalidated.6 See Lora-Pena v. FBI, 

, 505 n.2 (3d Cir. 2008) (applying Heck

to Bivens-type actions); Erlin v. United States, 

, 1133 (9th Cir. 2004)

(holding that an action under the FTCA for negligently calculating a prisoner’s release

date, or otherwise wrongfully imprisoning the prisoner, does not accrue until the prisoner

has established, in direct or collateral attack on his imprisonment, that he is entitled to

release from custody). Also, as Appellees note, they were not proper defendants in the

FTCA suit. See CNA v. United States, 

, 135 (3d Cir. 2008).

       As he asserts, Hall also presents claims under the Privacy Act relating to a

modification of the “return” section of the judgment and commitment order held at FCI-

Loretto. Section 552a(g)(1)(c) provides for a cause of action against an agency when that

agency “fails to maintain any record concerning any individual with such accuracy,

relevance, timeliness, and completeness as is necessary to assure fairness in any

determination relating to the qualifications, character, rights, or opportunities of, or

benefits to the individual that may be made on the basis of such record, and consequently

a determination is made which is adverse to the individual.” Among other infirmities




6
 In fact, we have rejected Hall’s argument that his confinement is invalid, explaining that
we could find no “authority for the proposition that, where the United States Marshal (or
his or her deputy) does not complete the ‘return’ section of a defendant’s judgment and
commitment order, the defendant’s confinement is unlawful and he must be released.”
Hall v. Loretto, 556 F. App’x 72, 73 (3d Cir. 2014) (per curiam).

                                               5
with Hall’s claim, none of the defendants is an “agency” as defined by the Privacy Act.7

5 U.S.C. § 552(f)(1).

       While the contours of Hall’s First Amendment claim are not entirely clear, his

complaint that he does not have access to a judicial record can be considered, at least in

part, as separate from an attack on his continued imprisonment. Nonetheless, the District

Court properly dismissed the claim. Hall’s other allegations and the versions of the

document attached to his complaint belie his claim that he does not have access to the

judgment and commitment order.

       Also, to the extent that Hall presented claims under state law (beyond his reliance

on them as a basis to impose liability on the defendants under the FTCA, see Molzof v.

United States, 

, 305 (1992)), the District Court did not abuse its discretion in


7
  Even assuming that this provision applies to the document at issue against the named
defendants, based on Hall’s allegations, it cannot be said that the record was not
maintained without the accuracy, relevance, or timeliness or completeness to assure
fairness, or that any failure to meet the standard resulted in a determination adverse to
Hall. The commitment order was first maintained as it was received. Regardless of what
Hall asserts is the import of the blank “return” section, he does not explain how the
maintenance of the document in its original state violated the Privacy Act. And the
change to the document that he described did not introduce an inaccuracy, insomuch as
the case manager reported on the document that the judgment and commitment order had
been received at FCI-Loretto. That was true. In signing the document, the case manager
crossed out the language relevant to a Marshal’s certification in the return section; he did
not pretend to be someone he was not. In any event, no adverse consequences stemmed
from the modification of the document. Nothing changed because the case manager
wrote that the judgment and commitment order was received. To the extent that Hall
alleged that the maintenance of the document in its original or altered state led to a
decision to continue his imprisonment, he again presented a claim like those we have
described as barred by Heck v. Humphrey. 

; cf. also Edwards v. Balisok, 

, 646-48 (1997); Torres v. Fauver, 

(3d Cir. 2002).
                                             6
declining to consider them in the absence of any federal claim. See 28 U.S.C.

§ 1367(c)(3).

       Furthermore, it cannot be said that the District Court abused its discretion in

denying Hall leave to amend his complaint. Rule 15 of the Federal Rules of Civil

Procedure provides that leave to amend should be “freely give[n] when justice so

requires.” However, a district court may exercise its discretion and deny leave to amend

on the basis of undue delay, bad faith, dilatory motive, prejudice, or futility. See In re

Burlington Coat Factory Sec. Litig., 

, 1434 (3d Cir. 1997) (citations

omitted). In this case, amendment would be futile. Even if Hall could amend his

complaint to name the proper defendants, the fundamental problems with his claims

(described above) could not be corrected. Furthermore, although he argues to the

contrary, he cannot delete his request for money damages to change the effect of Heck v.

Humphrey on his claims. Cf. Wilkinson v. Dotson, 

, 81-82 (2005) (“[A] state

prisoner’s § 1983 action is barred (absent prior invalidation) – no matter the relief sought

(damages or equitable relief), no matter the target of the prisoner’s suit (state conduct

leading to conviction or internal prison proceedings) – if success in that action would

necessarily demonstrate the invalidity of confinement or its duration.”).

       Lastly, the effective denial of the motion to show cause (in which Hall essentially

requested that summons issue so that defendants could answer the complaint) did not

introduce reversible error. As the complaint was without merit, the District Court could


                                              7
dismiss it before service on the defendants. See 28 U.S.C. § 1915(e)(2); 28 U.S.C.

§ 1915A.

      For these reasons, we will affirm the District Court’s judgment.8




8
  We deny Hall’s request, which he included in a document in support of his appeal, to
stay this appeal pending a decision in another matter by the Utah district court.
                                            8