NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 17-2801
__________
SEAN M. DONAHUE,
Appellant
v.
DAUPHIN COUNTY SOLICITORS OFFICE, Harrisburg, PA; DAUPHIN COUNTY
PRISON, Harrisburg, PA; PA STATE CAPITOL POLICE, BUREAU OF POLICE AND
SAFETY, Harrisburg, PA; PENNSYLVANIA DEPARTMENT OF GENERAL
SERVICES, Harrisburg, PA; UNKNOWN DAUPHIN COUNTY PRISON GUARDS
AND ADMINISTRATIVE EMPLOYEES, Harrisburg, PA; KATIE LYNN ADAM,
Prosecutor, Dauphin County District Attorney’s Office; RICHARD C. SCHUR,
Corporal, Bureau of Police & Safety, Harrisburg, PA; LISA M. SAUDER, General
Counsel, PA Department of Labor and Industry; MARY JANE MCMILLAN, PA Human
Relations Commission; HEATHER ROTH, PA Human Relations Commission
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 1-17-cv-01084)
District Judge: Honorable Sylvia H. Rambo
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 4, 2018
Before: GREENAWAY, JR., BIBAS and ROTH, Circuit Judges
(Opinion filed: October 10, 2019)
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OPINION*
___________
PER CURIAM
Pro se appellant Sean Donahue appeals the District Court’s order dismissing his
civil-rights complaint. For the reasons detailed below, we will affirm the District Court’s
judgment.
In November 2014, Donahue sent threatening emails to numerous employees of
the Commonwealth of Pennsylvania. The emails concerned, generally, Donahue’s belief
that these employees had improperly prevented him from obtaining a civil-service job.
Based on these emails, Donahue was charged with two counts of harassment and one
count of terroristic threats. After a jury trial in the Dauphin County Court of Common
Pleas, Donahue was convicted of the harassment charges and the terrorist-threats charge
was dismissed. Donahue appealed his conviction, and the Superior Court affirmed. See
Commonwealth v. Donahue, No. 1469 MDA 2016, 2017 WL 2418390, at *1 (Pa. Super.
Ct. June 5, 2017). The Pennsylvania Supreme Court denied Donahue’s petition for
allowance of appeal, see Commonwealth v. Donahue, 180 A.3d 1211 (Pa. 2018) (table),
and the United States Supreme Court denied certiorari, see Donahue v. Pennsylvania, 138
S. Ct. 2626 (2018).
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
2
Donahue then filed a complaint under 42 U.S.C. § 1983 in the District Court. He
alleged that the defendants had pursued the criminal charges based on personal animosity
and to prevent him from being eligible to obtain a civil-service job. A Magistrate Judge
issued a report and recommendation concluding that the claims should be dismissed as
barred by the favorable-termination rule of Heck v. Humphrey, 512 U.S. 477 (1994).
Over Donahue’s objections, the District Court adopted the report and recommendation
and dismissed Donahue’s complaint. Donahue then filed a timely notice of appeal to this
Court.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise a plenary
standard of review. See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000).
On appeal,1 Donahue first argues that the Heck bar should not apply because he
was not convicted of the terrorist-threats charge. We are not persuaded. To maintain a
civil-rights claim that, if successful, would demonstrate the invalidity of a criminal
conviction, a plaintiff must show that the criminal proceedings terminated in his favor.
1
We will consider only those issues that Donahue has properly raised in his brief. See
Laborers’ Int’l Union of N. Am., AFL-CIO v. Foster Wheeler Corp., 26 F.3d 375, 398
(3d Cir. 1994) (“An issue is waived unless a party raises it in its opening brief, and for
those purposes a passing reference to an issue will not suffice to bring that issue before
this court.” (quotation marks, alteration omitted); Mala v. Crown Bay Marina, Inc., 704
F.3d 239, 245 (3d Cir. 2013) (noting that pro se litigants “must abide by the same rules
that apply to all other litigants”). Further, because, as detailed below, we conclude that
Donahue has not identified any error in the District Court’s conclusion that the matter is
barred by the favorable-termination rule, we need not reach his challenges to the District
Court’s alternative rulings concerning certain defendants’ immunity. See, e.g., Menkes
v. Prudential Ins. Co. of Am., 762 F.3d 285, 294 n.8 (3d Cir. 2014).
3
See Bronowicz v. Allegheny County, 804 F.3d 338, 346 (3d Cir. 2015). We have ruled
that the simultaneous conviction on some counts and acquittal on others does not qualify
as a favorable termination if “the charges aim[ed] to punish one course of conduct.”
Kossler v. Crisanti, 564 F.3d 181, 192 (3d Cir. 2009) (en banc). That is precisely what
occurred here, where the harassment and terroristic-threats charges aimed to punish
Donahue for sending the same four emails. See Donahue, 2017 WL 2418390, at *1.
Thus, Donahue has failed to show that the criminal charges were terminated in his favor.
Next, Donahue contends that his claims should have been construed as alleging
abuse of process as opposed to malicious prosecution. However, “a section 1983 claim
for malicious abuse of process lies where prosecution is initiated legitimately and
thereafter is used for a purpose other than that intended by the law.” Rose v. Bartle, 871
F.2d 331, 350 n.17 (3d Cir. 1989) (internal quotation marks omitted). Because Donahue
claimed that the criminal action was improper from the start, the District Court did not err
in construing his claim as one of malicious prosecution. See id.; cf. Zimmerman v.
Corbett, 873 F.3d 414, 418-19 & nns. 24-27 (3d Cir. 2017) (discussing similar claims
under malicious-prosecution framework).
Donahue also contends that § 1983 relief must be available to him,
notwithstanding his lack of a favorable termination, because he does not have an avenue
for relief under 28 U.S.C. § 2254. Even assuming that Donahue is correct that he cannot
challenge his conviction via § 2254, cf. Lee v. Stickman, 357 F.3d 338, 342 (3d Cir.
4
2004) (explaining that “being on probation meets the ‘in custody’ requirement for
purposes of the habeas statute”), we have previously “held that a plaintiff who had never
been incarcerated and who had no recourse under the habeas statute was nevertheless
subject to Heck’s favorable termination rule.” Bronowicz, 804 F.3d at 345 n.12.
Moreover, while Donahue argues that Heck’s rule is unconstitutional, we are bound to
follow the Supreme Court’s decision. See, e.g., Gilles v. Davis, 427 F.3d 197, 210 (3d
Cir. 2005).
Accordingly, we will affirm the District Court’s judgment.
5