George Rowann v. City of Erie , 303 F. App'x 91 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
12-17-2008
George Rowann v. City of Erie
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-3198
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"George Rowann v. City of Erie" (2008). 2008 Decisions. Paper 78.
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ALD-42 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-3198
___________
GEORGE M. ROWANN,
Appellant
v.
CITY OF ERIE, PENNSYLVANIA;
COUNTY OF ERIE, PENNSYLVANIA
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 07-00304)
District Judge: Honorable Maurice B. Cohill, Jr.
____________________________________
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 26, 2008
Before: SLOVITER, FUENTES AND JORDAN, Circuit Judges
(filed: December 17, 2008 )
_________
OPINION
_________
PER CURIAM
In two jury trials in 1991, George M. Rowann was convicted in the Erie County
Court of Common Pleas of, inter alia, multiple counts of burglary and criminal
conspiracy. He received a sentence that included forty to eighty years of imprisonment.
Thereafter, Rowann unsuccessfully sought relief from his convictions and sentence in
state courts.
In November 2007, Rowann filed a pro se complaint in the Western District of
Pennsylvania against the city and county of Erie, Pennsylvania (“Appellees”), claiming
that his constitutional and civil rights were violated under 42 U.S.C. § 1983 by the
imposition of an “illegal” sentence and by evidence tampering and witness coercion that
allegedly occurred in his 1991 trials.1 Rowann sought immediate release from prison, as
well as compensatory and punitive damages. Appellees moved to dismiss Rowann’s
complaint for failure to state a claim upon which relief can be granted pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure. On July 15, 2008, the District Court
adopted the report and recommendation of Magistrate Judge Susan Paradise Baxter and
granted Appellees’ motions to dismiss. For the following reasons, we will affirm.
When considering a motion to dismiss a complaint pursuant to Rule 12(b)(6), a
1
Rowann also claims that the alleged misconduct surrounding his trial and the
imposition of his sentence are criminal offenses under 18 U.S.C. §§ 241, 242, 1506, 1512,
and 1513. We construe all of his allegations, as did the District Court, as a civil rights
claim under 42 U.S.C. § 1983.
2
court must view the factual allegations as true and dismiss only if the complaint does not
allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic
Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2007). As noted by the Magistrate Judge,
Rowann’s claim is, in essence, that his improper sentence subjects him to illegal
imprisonment, entitling him to monetary relief and immediate release. We agree with the
Magistrate Judge that Rowann’s claim is not cognizable under 42 U.S.C. § 1983 and must
be dismissed.
If a prisoner seeks damages in a § 1983 suit, “the district court must consider
whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his
conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff
can demonstrate that the conviction or sentence has already been invalidated.” Heck v.
Humphrey, 512 U.S. 477, 487 (1994). Rowann’s claim is precisely the type that must be
dismissed under Heck because he seeks compensation for imprisonment under an illegal
sentence but has not demonstrated that his sentence has been invalidated. On the
contrary, Rowann has presented evidence that state courts thus far have denied his
appeals. Until Rowann can convince an appropriate court that his sentence is unlawful,
his § 1983 claim is not cognizable.
Moreover, “when a state prisoner is challenging the very fact or duration of his
physical imprisonment, and the relief he seeks is a determination that he is entitled to
immediate release . . . his sole federal remedy is a writ of habeas corpus.” Preiser v.
3
Rodriguez, 411 U.S. 475, 500 (1973). A declaration that Rowan’s sentence violates the
law and an order releasing him immediately from prison may only be sought in a petition
for a writ of habeas corpus and Rowann’s claims for such relief must therefore be
dismissed.
Accordingly, because we agree with the District Court that Rowann’s amended
complaint fails to state a claim upon which relief can be granted, we will affirm its order
granting Appellees’ motions to dismiss under Rule 12(b)(6). In light of this disposition,
Rowann’s motion for the appointment of counsel to represent him on appeal is denied.
4