Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit

3-28-2007

Nicholas v. Brooks Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4361

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Recommended Citation "Nicholas v. Brooks" (2007). 2007 Decisions. Paper 1416. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1416

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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

NO. 06-4361 ________________

EDWARD J. NICHOLAS, Appellant

v.

MARILYN BROOKS; JOHN DOE ____________________________________

On Appeal From the United States District Court For the Western District of Pennsylvania (W.D. Pa. Civ. No. 06-cv-00098) District Judge: Honorable Sean J. McLaughlin _______________________________________

Submitted For Possible Dismissal Under

(e)(2)(B) March 9, 2007 BEFORE: SCIRICA, Chief Judge, WEIS and GARTH, Circuit Judges (Filed: March 28, 2007) _______________________

OPINION _______________________

PER CURIAM.

Edward J. Nicholas, a state prisoner proceeding pro se, appeals an order of

the United States District Court for the Western District of Pennsylvania dismissing his

civil rights complaint. We will dismiss his appeal pursuant to

(e)(2)(B).

1 On May 15, 1998, following a jury trial, Nicholas was convicted of

aggravated assault and acquitted of one count of robbery and two counts of criminal

conspiracy. He was sentenced to six and one-half years to twenty years in prison. In

May 2006, Nicholas filed a civil rights action under

against the

superintendent of SCI-Albion, where he resides. His complaint alleges that the jury

found him not guilty of the aggravated assault charge and, thus, he is being held in

violation of due process. He requested that the court confirm his innocence and award

him millions of dollars in damages.1

The Magistrate Judge recommended dismissal of the complaint pursuant to

(e)(2)(B) as barred by, among other theories, the favorable termination

rule announced in Heck v. Humphrey,

(1994). The District Court affirmed

and adopted the Magistrate Judge’s report and recommendation. This appeal followed.

We have jurisdiction pursuant to

. Nicholas has been

granted leave to proceed in forma pauperis on appeal. Because his appeal lacks arguable

merit, we will dismiss it pursuant to § 1915(e)(2)(B)(I).2 See Allah v. Seiverling,

(3d Cir. 2000).

1 He also appears to request a federal investigation of the defendant and her alleged co-conspirators. 2 Although the District Court dismissed the complaint without giving Nicholas an opportunity to amend as required by Grayson v. Mayhew State Hosp.,

(3d Cir. 2003), we find no error because any amendment would have been futile. See

.

2 According to the rule announced by the Supreme Court in Heck, when a

plaintiff brings a civil rights suit that would necessarily imply the invalidity of his

conviction or sentence, “the complaint must be dismissed unless the plaintiff can

demonstrate that the conviction or sentence has already been invalidated.”

. The gravamen of Nicholas’ complaint is that his conviction and sentence for

aggravated assault is invalid because it conflicts with the jury’s putative verdict of not

guilty. However, Nicholas’s conviction has not been invalidated. See Nicholas v.

Pennsylvania, No. 06-3641(3d Cir. order entered January 31, 2007) (denying a certificate

of appealability for habeas petition). Thus the District Court was correct to dismiss the

suit.

Accordingly, we will dismiss this appeal pursuant to

(e)(2)(B). Nicholas’s pending motion is denied.

3