Mensah v. Darby Pol Dept , 145 F. App'x 742 ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
8-19-2005
Mensah v. Darby Pol Dept
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-2193
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"Mensah v. Darby Pol Dept" (2005). 2005 Decisions. Paper 674.
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DPS-278 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 05-2193
CAROLYN R. MENSAH,
a/k/a Carol Allen,
Appellant
v.
DARBY BOROUGH POLICE DEPARTMENT
_______________
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civ. No. 05-cv-01163)
District Judge: Honorable Marvin Katz
_______________________________________
Submitted Under 28 U.S.C. § 1915(e)(2)(B)
June 16, 2005
Before: ROTH, BARRY AND SMITH, CIRCUIT JUDGES
(Filed August 19, 2005)
_______________________
OPINION
_______________________
PER CURIAM
Appellant Carolyn Mensah, a/k/a Carol Allen, appeals from the dismissal of her
complaint as frivolous. The appeal is frivolous and we will dismiss pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(i).
On March 15, 2005, Mensah filed a three-page complaint under 42 U.S.C. § 1983alleging that the Darby Police Department is retaining fictitious criminal information on
both her and her sons. Additionally, she claims that this information has led to the use of
aircraft and other devices for surveillance purposes. Mensah seeks an injunction
compelling the Darby Police to expunge whatever records they may have with references
to some incident occurring on May 20, 1989, and we surmise, an injunction prohibiting
the alleged surveillance. In a one-sentence order, the District Court dismissed the
complaint as frivolous. Mensah appealed.
We have jurisdiction under 28 U.S.C. § 1291. We will dismiss an appeal as
frivolous under § 1915(e)(2)(B) when it is lacking in arguable legal merit. We exercise
plenary review over the dismissal of a complaint. Oran v. Stafford, 226 F.3d 275, 281 n.2
(3d Cir. 2000). Here, even if we accepted the complaint as true, the filing of false
information states a claim for libel or defamation, a state law tort, not a constitutional
violation. See generally Bd. of Regents v. Roth, 408 U.S. 564 (1972) (requiring a
deprivation of either property or liberty to assert a due process claim); Paton v. La Prade,
524 F.2d 862, 869-71 (3d Cir. 1975) (involving a First Amendment challenge to the
collection and maintenance of records). Even if it were a constitutional violation, Mensah
would likely now be time-barred. See 42 Pa. Cons. Stat. Ann. §§ 5523(1), 5524(7).
Similarly, harassment alone does not amount to a constitutional violation. Even assuming
arguendo that Mensah could show that her claim states a violation, the Darby Police
would be immune because to succeed under § 1983, the violated right must be “clearly
established.” See Carswell v. Borough of Homestead, 381 F.3d 235, 241-42 (3d Cir.
2004). Mensah cannot make this showing.
For the foregoing reasons, the appeal is frivolous. Accordingly, we will dismiss.