Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit

12-5-2008

Michael Greene v. Michael Barrasse Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2753

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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 08-2753

MICHAEL GREENE, Appellant

v.

MICHAEL BARRASSE; MARY ANNE GRIPPO; COREY KOCHARNO; JASON MILLS; JAY RUANE

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil No. 08-cv-00821) District Judge: Honorable Edwin M. Kosik

Submitted for Possible Dismissal Pursuant to

(e)(2)(B) November 14, 2008 Before: BARRY, AMBRO and SMITH, Circuit Judges

(Opinion filed: December 5, 2008)

OPINION

PER CURIAM

Michael Greene, a prisoner proceeding pro se, appeals from the District Court’s order dismissing his complaint pursuant to

(e)(2)(B). We agree with the

decision of the District Court and will dismiss the appeal.

I

In 2006, Greene was convicted of aggravated assault in the Lackawanna County

Court of Common Pleas. As a result of his repeat offender status, he received a

mandatory sentence of life imprisonment.

Greene filed a civil rights action pursuant to

in May 2008,

seeking damages for his current incarceration and for the conduct of various participants

in his criminal trial, including the trial judge, two prosecutors, and two police officers

who served as witnesses for the Commonwealth. Greene’s complaint alleges, inter alia:

(1) the Commonwealth improperly reopened his case; (2) prosecutorial misconduct; (3) a

conspiracy between prosecutors and the trial judge to permit witness perjury; (4)

deliberate misrulings by the trial judge to prejudice the jury against Greene; and (5)

purposeful destruction of exculpatory evidence.

II

A federal court must dismiss the complaint or appeal of a plaintiff proceeding in

forma pauperis if the action is “frivolous.”

(e)(2). The United States

Supreme Court clarified this standard in Neitzke v. Williams,

(1989),

stating that a complaint is frivolous “where it lacks an arguable basis either in law or

2 fact.”

.

A plaintiff proceeding under § 1983 seeking damages “for allegedly

unconstitutional conviction or imprisonment, or for other harm caused by actions whose

unlawfulness would render a conviction or sentence invalid,” must demonstrate that the

“conviction or sentence has been reversed on direct appeal, expunged by executive order,

declared invalid by a state tribunal authorized to make such determination, or called into

question by a federal court’s issuance of a writ of habeas corpus.” Heck v. Humphrey,

(1994). “[If] a judgment in favor of the plaintiff 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.”

.

We agree with the District Court that the relief Greene seeks would necessarily

imply the invalidity of his conviction. Because Greene has not demonstrated a successful

challenge to his conviction, his complaint is barred by Heck. Accordingly, Greene’s

complaint “lacks an arguable basis [] in law,” Neitzke,

, and we will

dismiss it pursuant to

(e)(2)(B)(i).

3