DLD-065 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 15-2656
___________
VIRGIL RUSHING,
Appellant
v.
COMMONWEALTH OF PENNSYLVANIA;
CITY OF PHILADELPHIA
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 2-15-cv-02855)
District Judge Honorable Timothy J. Savage
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
November 24, 2015
Before: CHAGARES, GREENAWAY, JR., and SLOVITER, Circuit Judges
(Opinion filed: January 4, 2016)
_________
OPINION*
_________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Pro se appellant Virgil Rushing (“Rushing”) appeals from the judgment of the
United States District Court for the Eastern District of Pennsylvania in his civil rights
case. As the appeal lacks an arguable basis in law or in fact, we will dismiss it as
frivolous.
I.
Rushing is a state prisoner housed at the Philadelphia Industrial Correctional
Center (“PICC”). Rushing was arrested and charged in May 2014 for crimes under
Pennsylvania law. While detained and awaiting trial, Rushing filed a civil rights
complaint under 42 U.S.C. § 1983 against the Commonwealth of Pennsylvania, the City
of Philadelphia, President Judge Sheila Woods-Skipper and Judge Roxanne Covington of
the Philadelphia Court of Common Pleas, attorney Michael Benz of the Philadelphia
Defender Association, and attorney Sean Page.
Rushing alleged that he was being held under unjust laws, charges, and time by the
Commonwealth and “the CJC judges holding [him].” Dkt. # 6, pg. 3. To the extent that
it is possible to make out any other cognizable claims in his complaint, Rushing also
appeared to allege: that he was denied equal protection of the laws; bias by the trial
judge, Judge Covington; ineffective assistance of counsel; and poor and dangerous
conditions of confinement.1 The District Court dismissed his complaint with prejudice as
1
Rushing’s equal protection claim would have arisen, at a minimum, under the
Fourteenth Amendment’s Equal Protection Clause. His judicial bias claim would have
been based on the Fourteenth Amendment’s Due Process Clause. See Bracy v. Gramley,
2
legally frivolous and for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)
and (ii). It dismissed his claim against the Commonwealth on grounds of Eleventh
Amendment immunity, and dismissed his claims against his attorneys because they are
not state actors who are subject to liability under 42 U.S.C. § 1983. It dismissed his
claims against Judge Covington because she was entitled to “absolute judicial immunity,”
as Rushing’s claims against her were based on acts she took in her judicial capacity.
Finally, the District Court dismissed the claims against Philadelphia and President Judge
Woods-Skipper for failure to state a claim. The District Court also stated that providing
leave to amend would be futile.2 Rushing appeals from this decision.3
II.
The District Court had jurisdiction pursuant to 28 U.S.C. § 1331, and we have
jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the District Court’s sua sponte
dismissal under 28 U.S.C. § 1915(e)(2)(B)(i) and (ii) is plenary. See Allah v. Seiverling,
229 F.3d 220, 223 (3d Cir. 2000). When dismissing claims for failure to state a claim,
this standard of review is the same as under Fed. R. Civ. P. 12(b)(6). Where a complaint
520 U.S. 899, 905-06 (1997). His conditions of confinement claim would have
proceeded under the Eighth Amendment.
2
After filing his notice of appeal, Rushing did file a motion for leave to file an amended
complaint, which the district court denied for lack of jurisdiction.
3
Since filing this appeal, Rushing has pleaded guilty and been sentenced to between
eleven and a half to twenty-three months of prison time. Commonwealth v. Virgil
Rushing, Dkt. # CP-51-CR-0006679-2014 (Ct. Common Pleas of Phila. County).
3
has not alleged sufficient facts to state a claim for relief that is “plausible on its face[,]”
dismissal is appropriate. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint is
considered frivolous if it lacks an arguable basis in law or fact. See Neitzke v. Williams,
490 U.S. 319, 325 (1989). A claim that is based on “an indisputably meritless legal
theory” or a claim that is clearly baseless is deemed frivolous. Deutsch v. United States,
67 F.3d 1080, 1085 (3d Cir. 1995). Examples of frivolous suits include those where
defendants are “immune from suit.” Neitzke, 490 U.S. at 327.
The District Court correctly dismissed all claims against the Commonwealth of
Pennsylvania, Judge Covington, and attorneys Benz and Page. First, states are not
“persons” within the meaning of § 1983. See Will v. Mich. Dep’t of State Police, 491
U.S. 58, 65 (1989); see also Callahan v. City of Philadelphia, 207 F.3d 668, 670 (3d Cir.
2000). Except where states have waived their immunity, the Eleventh Amendment bars
all suits against states for alleged deprivations of civil liberties. Will, 491 U.S. at 66.
The Commonwealth of Pennsylvania did not waive immunity in this suit, and so
Rushing’s § 1983 claims could not be brought against the state.
Second, “judges are immune from suit under section 1983 for monetary damages
arising from their judicial acts.” Gallas v. Supreme Ct. of Pa., 211 F.3d 760, 768 (3d Cir.
2000). Judges are not immune, however, for any actions taken in a non-judicial capacity.
Id. To the extent that Rushing even alleged facts against Judge Covington, those facts
indicated that she was acting in a judicial capacity. Accordingly, Rushing’s claims could
not proceed against Judge Covington.
4
Finally, attorneys are not subject to § 1983 claims on the basis that they are
officers of the court. This is true whether they are private attorneys or public defenders.
See Polk County v. Dodson, 454 U.S. 312, 324-25 (1981); see also Angelico v. Lehigh
Valley Hosp., Inc., 184 F.3d 268, 277 (3d Cir. 1999). As such, Rushing’s claims could
not proceed against attorneys Benz and Page under § 1983.
The District Court was also correct in its dismissal of the City of Philadelphia and
President Judge Woods-Skipper for failure to state claims against them. Rushing did not
allege any facts that point to the liability of either party. He merely named both parties as
defendants, and then did not state anything further. The closest Rushing comes to
alleging facts stating a claim against the City of Philadelphia is on the eleventh page of
his complaint. There, he states: “book library must be open;” “no doctor of psychiatry at
mental dept. of K-Block;” that inmates were showering in “cold to luke cold water” in the
autumn and winter; and that one of the prison doctors has a “possible mental illness.”
Dkt. #6, pg. 11. However, he raised no basis for Philadelphia’s liability on any of these
issues, and claimed no injury.
Because the District Court dismissed Rushing’s complaint without a discussion of
his underlying claims, it did not discuss two of his claims that should have been brought
in a habeas petition. As a rule, habeas petitions and § 1983 complaints are not
“coextensive either in purpose or effect.” Leamer v. Fauver, 288 F.3d 532, 540 (3d Cir.
2002). Where a state prisoner seeks to attack the fact or duration of his conviction or
sentence, he must seek relief through a habeas petition, not a § 1983 complaint. See
5
Preiser v. Rodriguez, 411 U.S. 475, 489-91 (1973); see also Wilkinson v. Dotson, 544
U.S. 74, 78-79 (2005).
First, Rushing clearly claimed that he was being held under unjust laws, charges,
and time by the Commonwealth and “the CJC judges holding [him].” We construe this
as stating a habeas corpus claim, as he was challenging the very fact of his detention. See
Leamer, 288 F.3d at 540. Second, to the extent that Rushing was attempting to assert
ineffectiveness of counsel claims against his attorneys, those should have been brought in
a habeas petition. See Strickland v. Washington, 466 U.S. 668 (1984). Both of these
claims also had to have been exhausted in state courts. See Lambert v. Blackwell, 387
F.3d 210, 231-32 (3d Cir. 2004). These two habeas claims were therefore improperly
brought in this § 1983 action.4
In light of the fact that Rushing’s non-habeas claims against all parties were
indisputably meritless, we find no error with the District Court’s decision that allowing
Rushing leave to amend would have been futile. See Grayson v. Mayview State Hosp.,
293 F.3d 103, 112-13 (3d Cir. 2002). Because Rushing has no arguable legal basis on
which to appeal the District Court’s order, we will dismiss the appeal as frivolous
pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
4
The District Court’s dismissal of his § 1983 complaint should not constitute a bar to any
collateral attacks by Rushing against his state proceedings.
6