Thomas Terry v. City of Pittsburgh , 297 F. App'x 82 ( 2008 )


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  •                                                                                                                            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    Precedential or Non-Precedential: Non-Precedential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    NOT PRECEDENTIAL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, 
    512 U.S. 477
    , 484-87 (1994). Thus, before
    Terry may bring a complaint alleging that he was convicted based on falsified evidence
    2
    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, 
    502 U.S. 9
    , 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).
    3
    

Document Info

Docket Number: 08-2374

Citation Numbers: 297 F. App'x 82

Filed Date: 10/28/2008

Precedential Status: Non-Precedential

Modified Date: 1/12/2023