ALD-233 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 10-1906
___________
GERALD BUSH,
Appellant,
v.
PHILADELPHIA POLICE DEPARTMENT;
PHILADELPHIA PRISON SYSTEM; THE ATTORNEY
GENERAL OF THE COMMONWEALTH OF PENNSYLVANIA
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ. No. 10-cv-01104)
District Judge: C. Darnell Jones, II
____________________________________
Submitted for Possible Summary Action Pursuant
to Third Circuit LAR 27.4 and I.O.P. 10.6
July 1, 2010
Before: SLOVITER, AMBRO AND SMITH, Circuit Judges
(Opinion filed : July 19, 2010 )
___________
OPINION
___________
PER CURIAM
Appellant Gerald Bush filed an in forma pauperis civil complaint in United States
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District Court for the Eastern District of Pennsylvania against the Philadelphia Police
Department, Philadelphia Prison System, and the Pennsylvania Attorney General in
connection with his conviction in 1986 for robbery and related crimes, and his resulting
sentence of 20 years imprisonment. Bush alleged that the Philadelphia Police fraudulently
concealed exculpatory evidence from the prosecutor, the judge, and defense counsel.
According to Bush, the police showed his photograph to eyewitness Darlene Roberts and told
her Bush was the person who robbed her. He further alleged that he had suffered “collateral
consequences” from the conviction in that he had lost his job and the right to vote, and he
cannot serve on a jury. Bush contended that, because the police fraudulently concealed
evidence, the statute of limitations was tolled and res judicata did not apply. He sought
$700,000,000 in compensatory and punitive damages.
The District Court granted Bush leave to appeal in forma pauperis and dismissed the
complaint under 28 U.S.C. § 1915(e)(2)(B). Bush then submitted an amended complaint, in
which he noted that habeas corpus relief was not available to him because he was no longer
in custody; a section 1983 complaint was his only chance for relief, and he had filed for
habeas relief four times without success while he was still in custody. In an order entered
on March 22, 2010, the District Court dismissed the amended complaint “pursuant to 28
U.S.C. § 1915(e)(B)(ii), as barred by the statute of limitations and precluded under the
doctrine of res judicata.” In the margin, the court set forth three of Bush’s prior cases: Bush
v. City of Philadelphia, D.C. Civ. No. 09-cv-04798; Bush v. City of Philadelphia, D.C. Civ.
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No. 04-cv-05776; and Bush v. City of Philadelphia, D.C. Civ. No. 10-cv-00640. The court’s
order concluded with this injunction: “The Clerk of Court is directed not to accept any further
complaints, motions, letters, memoranda, or any other documents that Plaintiff files against
Defendants, except for a Notice of Appeal, unless he secures prior approval from the Court.” 1
Bush appeals. Our Clerk advised the parties that we might act summarily to dispose
of this appeal, see Third Cir. LAR 27.4 and I.O.P. 10.6, and asked for responses. Bush has
submitted five separate responses, which we have considered.
We will summarily affirm the order of the District Court to the extent the court
dismissed Bush’s civil complaint under the in forma pauperis statute, because it clearly
appears that no substantial question is presented by this appeal. Third Cir. LAR 27.4 and
I.O.P. 10.6. See also 28 U.S.C. § 1915(e)(2)(B)(ii) (“Notwithstanding any filing fee, or any
portion thereof, that may have been paid, the court shall dismiss the case at any time if the
court determines that – *** (B) the action or appeal – *** (ii) fails to state a claim on which
relief may be granted”). Bush’s civil complaint addressed his allegedly unfair trial and
resulting incarceration, the consequences, he contends, of a tainted photographic
identification. He sought explicitly to bring his action under 42 U.S.C. § 1983, alleging a
malicious prosecution and an unconstitutional conviction and sentence. But Heck v.
Humphrey, 512 U.S. 477 (1994), holds that a prisoner’s civil rights suit for damages or
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This same injunction was entered in Bush v. City of Philadelphia, D.C. Civ. No. 10-
cv-00640.
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equitable relief is barred unless he can demonstrate that his conviction or sentence has been
invalidated. 512 U.S. at 486-87. Bush’s conviction has never been invalidated. Heck’s
favorable termination rule applies “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.” Wilkinson v. Dotson,
544 U.S. 74, 81-82 (2005). See also Edwards v. Balisok, 520 U.S. 641, 646-47 (1997).
Success in the instant action would necessarily demonstrate that Bush’s conviction was not
valid. Although Bush is no longer in custody, because he properly could, and previously did,
avail himself of the habeas corpus remedy, Heck applies to him even though he has since
been released. See Gilles v. Davis, 427 F.3d 197, 209-10 (3d Cir. 2005) (Heck applies to
habeas eligible plaintiff).
To the extent Bush intended to raise a claim for false arrest, as explained by the
District Court in a prior action, Bush v. City of Philadelphia, D.C. Civ. No. 09-cv-04798, the
claim is barred by the two-year statute of limitations applicable to torts in Pennsylvania, see
42 Pa. Cons. Stat. Ann. § 5524(2), (7); see also Wilson v. Garcia, 471 U.S. 261 (1985) (state
statute of limitation applies to actions under 42 U.S.C. § 1983), insofar as the instant
complaint was filed on March 11, 2010, and Bush alleged that he discovered the factual
predicate for his claim on November 28, 2003, see Bush v. City of Philadelphia, 367 F.
Supp.2d 722, 724 (E.D. Pa. 2005).
We will vacate the order to the extent it bars Bush from filing anything further against
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these defendants without leave of court, and remand. We review that part of the District
Court’s order barring the filing of “any further complaints, motions, letters, memoranda, or
any other documents that Plaintiff files against Defendants” for an abuse of discretion. See
Abdul-Akbar v. Watson, 901 F.2d 329, 331 (3d Cir. 1990). District courts in this circuit may
issue an injunction under the All Writs Act, 28 U.S.C. § 1651(a), to require litigants who
have engaged in abusive, groundless, and vexatious litigation to obtain approval of the court
before filing further complaints. See Chipps v. U.S. District Court for Middle District of Pa.,
882 F.2d 72 (3d Cir. 1989). The in forma pauperis statute, 28 U.S.C. § 1915, provides a tool
for clearing the docket of frivolous cases, but “a frivolous complaint is one thing; a
continuing abuse of process is another. In the case of the latter, [28 U.S.C. § 1915] alone is
not an efficacious remedy.” See Abdul-Akbar, 901 F.2d at 333. A district court is entitled
to resort to its powers of injunction and contempt to protect its process when it is confronted
with a pattern of conduct that is abusive and when it believes that the abusive conduct will
continue if not restrained. Id.
Here, the District Court found a pattern of vexatious litigation on Bush’s part with
respect to his claim of false arrest and malicious prosecution, a finding which is supported
by the record. It appears that these lawsuits are likely to continue absent some restriction on
Bush. Chipps, 882 F.2d at 73; see also In re Oliver, 682 F.2d 443, 444 (3d Cir. 1982). The
District Court did not, however, afford Bush the notice and opportunity to respond that are
required when injunctions of this type are entered. See, e.g., Gagliardi v. McWilliams, 834
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F.2d 81, 83 (3d Cir. 1987). Generally, the bar should not be imposed by a court without prior
notice and some occasion to respond. See id. An injunction barring litigation without leave
of court is an exception to the general rule of free access to the courts and its use against a
pro se plaintiff must be approached with caution. See In re Oliver, 682 F.2d at 445.
Moreover, to protect a litigious party’s legitimate claims, we have approved of a
narrowly tailored order “directing that the litigant not file any section 1983 claims without
leave of court and that in seeking leave of court, the litigant certify (1) that the claims he
wishes to present are new claims never before raised and disposed of on the merits by any
federal courts, (2) that he believes the facts alleged in his complaint to be true, and (3) that
he knows of no reason to believe his claims are foreclosed by controlling law.” Abdul-
Akbar, 901 F.2d at 333. The injunction entered against Bush by the District Court is
insufficiently narrow in that Bush apparently would be barred from filing even brand new
claims against the City of Philadelphia. Unless there is a “pattern of vexatious litigation
transcend[ing] a particular dispute,” Chipps, 882 F.2d at 73, the District Court must
“consider limiting relief ‘to the preclusion of future lawsuits arising out of the same matters
that were the subject of the [prior] dismissed actions.’” Id. (quoting Gagliardi, 834 F.2d at
83). See also Brow v. Farrelly, 994 F.2d 1027, 1038 (3d Cir. 1993). On remand the District
Court should give Bush notice and an opportunity to respond, and consider tailoring the order
to permit new claims never before raised and disposed of on the merits.
We will summarily affirm the order of the District Court to the extent the complaint
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and amended complaint were dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii); and vacate that
part of the order enjoining Bush from filing anything further against the defendants, and
remand. Bush’s motion requesting the District Court Clerk to forward the Notes of
Testimony, etc. is denied.
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