Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
9-28-2005
Thomas v. Leach
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-1818
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 05-1818
________________
ELMER L. THOMAS,
Appellant
v.
STEVEN C. LEACH; JACKSON M. STEWART; DONNA RHODE
___________________________________
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(E.D. Pa. Civ. No. 04-cv-01488)
District Judge: Honorable Harvey Bartle, III
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
September 8, 2005
Before: ALITO, SMITH and COWEN Circuit Judges
(Filed September 28, 2005)
_______________________
OPINION
_______________________
PER CURIAM
Appellant Elmer L. Thomas appeals pro se an order of the United States District
Court for the Eastern District of Pennsylvania denying his motion to “reactivate” his civil
rights action which had been dismissed for failure to state a claim. For the reasons that
follow, we will affirm.
The parties are familiar with the facts, so we will only briefly revisit them here.
Thomas, who was convicted in 1982 of arson, murder and related charges, filed an action
pursuant to 28 U.S.C. § 1983 in the United States District Court for the Eastern District of
Pennsylvania, alleging that the prosecutor and his criminal defense attorney conspired
with a state court clerk to deny his post-conviction request for disclosure of an allegedly
exculpatory 1982 police investigation report. He sought damages and injunctive relief,
including an order preventing the report’s destruction and directing that it be disclosed.
The defendants separately filed motions to dismiss alleging that Thomas failed to
state a claim upon which relief can be granted. By order entered September 7, 2004, the
District Court granted the motions, finding that success on Thomas’s claims would
necessarily imply the invalidity of his criminal conviction in state court, and thus that the
claims were premature. See Heck v. Humphrey, 512 U.S. 477 (1994). In a motion for
reconsideration filed on September 17, 2004, Thomas alleged that the District Court
improperly denied his claim under Heck, overlooked his demand for preservation of the
report, and failed to stay the action pending completion of his then-pending state Post
Conviction Relief Act (“PCRA”) proceedings. The District Court denied the motion by
order entered October 1, 2004. Undeterred, on November 12, 2004, Thomas filed a
motion pursuant to Fed. R. Civ. P. 60(b) seeking to “reactivate” his § 1983 action. He
noted that the Pennsylvania Superior Court had denied his PCRA petition on November
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3, 2004, and contended that that denial constituted exhaustion of his state court remedies,
thus rendering his § 1983 claims cognizable. Thomas’s motion also sought an evidentiary
hearing “entitling plaintiff [an] opportunity to show actual innocence.” The District
Court denied Thomas’s Rule 60(b) motion on November 23, 2004. By order entered
March 11, 2005, the District Court granted Thomas’s motion for an extension of time to
appeal, and deemed his appeal of the Rule 60(b) denial filed as of that date.
We have appellate jurisdiction under 28 U.S.C. § 1291. An appeal from the denial
of a Rule 60(b) motion, the filing of which did not toll the time to appeal the judgment,
does not bring up the underlying judgment for review on appeal. See Selkridge v. United
of Omaha Life Ins. Co., 360 F.3d 155, 161 n.3 (3d Cir. 2004). Because Thomas’s Rule
60(b) motion filed in November 2004 did not toll the time to appeal the September 2004
order granting the defendants’ motions to dismiss, see Fed. R. App. P. 4(a)(4)(A)(vi), we
lack jurisdiction to review the District Court’s September 2004 order. In addition,
Thomas’s notice of appeal – filed no earlier than January 6, 2005 – is untimely with
respect to the District Court’s October 2004 order denying reconsideration. See Fed. R.
App. P. 4(a)(1)(A) (stating 30-day time to appeal final orders in civil actions to which
United States is not party). Therefore, we may examine only the District Court’s denial of
Thomas’s Rule 60(b) motion, which we review for abuse of discretion. See Coltec Indus.
v. Hobgood, 280 F.3d 262, 269 (3d Cir. 2002).
In Heck, the Supreme Court held that a state prisoner could not maintain an action
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for damages under the civil rights laws if “a judgment in favor of the plaintiff would
necessarily imply the invalidity of his conviction or sentence . . . unless the plaintiff can
demonstrate that the conviction or sentence has already been invalidated.” 512 U.S. at
487. In Edwards v. Balisok, 520 U.S. 641 (1997), the Court extended Heck and found a
claim for declaratory relief not cognizable under § 1983 because it would “necessarily
imply the invalidity of the punishment imposed.” Id. at 648. The Court recently stated
that 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.” Wilkinson
v. Dotson, 125 S.Ct. 1242, 1248 (2005).
Thomas argues that the District Court abused its discretion by denying his Rule
60(b) motion because exhaustion of his state-court remedies for purposes of federal
habeas corpus relief rendered his § 1983 claims cognizable under Heck and its progeny.
Thomas is mistaken. As the Supreme Court has noted, “[e]ven a prisoner who has fully
exhausted available . . . remedies has no cause of action [in a civil rights proceeding]
unless and until the conviction or sentence is reversed, expunged, invalidated, or
impugned by the grant of a writ of habeas corpus.” Heck, 512 U.S. at 489. Indeed, the
Court in Heck did not “engraft an exhaustion requirement upon § 1983.” Id. Therefore,
assuming that Thomas’s claims are barred by Heck, as we must, see Selkridge, 360 F.3d
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at 161 n.3, his alleged exhaustion of available state remedies would not permit
consideration of his claims in a civil rights action. Thomas’s claims would not accrue
until he demonstrates that his conviction has been invalidated, something he has not done.
For the foregoing reasons, we will affirm the District Court’s order denying
Thomas’s motion for relief pursuant to Rule 60(b). In addition, we will affirm the
District Court’s denial of Thomas’s motion for an evidentiary hearing.
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