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Precedential or Non-Precedential: Non-Precedential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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"Thomas Terry v. City of Pittsburgh" (2008). 2008 Decisions. Paper 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NOT PRECEDENTIAL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