NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 23-1348 ___________

QUINCY MICHAEL PATRICK, Appellant

v.

KINGSTON POLICE DEPARTMENT; STATE PAROLE SCRANTON; DET. RICHARD KOTCHIN; SCOTT L. RAVERT; and JOHN B. ____________________________________

On Appeal from the United States District Court for the Middle District of Pennsylvania (M.D. Pa. Civ. No. 3:22-cv-01167) District Judge: Honorable Malachy E. Mannion ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) June 16, 2023

Before: KRAUSE, PHIPPS, and SCIRICA, Circuit Judges

(Opinion filed August 11, 2023) ___________

OPINION* ___________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. PER CURIAM

Quincy Michael Patrick’s parole officer discovered drugs inside Patrick’s home

during a visit in 2016. Patrick would later plead guilty in Pennsylvania state court to a

drug offense and be sentenced to nineteen to forty months in prison. His direct appeal and

post-conviction applications all were unsuccessful.

More than six years after he was arrested, Patrick filed the underlying pro se civil

rights action against, among other defendants, his parole officer and the Kingston Police

Department. Patrick claimed that discovery of the drugs during the home visit was

predicated on violations of the Fourth Amendment to the United States Constitution.

The Magistrate Judge screened Patrick’s complaint under

(e)(2)

and issued a Report recommending sua sponte dismissal. The Magistrate Judge

concluded that Patrick’s claims were facially untimely under Pennsylvania’s two-year

statute of limitations (

(7)). The Magistrate Judge then offered

several rulings in the alternative: Patrick’s claims against the Kingston Police Department

were not cognizable under

because municipal police departments are

not “person[s]” under the statute; any claims for false arrest or malicious prosecution

were barred under Heck v. Humphrey,

(1994); and the complaint should be

dismissed based on the abstention doctrine of Younger v. Harris,

(1971).

Over Patrick’s objections, the District Court entered an order on September 8,

2022, which set forth detailed reasoning and analysis, and which adopted the Magistrate

2 Judge’s Report “in its entirety.” The District Court dismissed Patrick’s complaint without

leave to amend, concluding that “the fact that plaintiff’s claims are barred by the

applicable statute of limitations renders futile any amendment of his complaint.”

This timely appeal followed. See Fed. R. App. P. 4(a)(1)(A); Fed. R. Civ. P.

58(c)(2)(B); see also LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n,

(3d Cir. 2007).1 We have jurisdiction under

. We review de novo an

order dismissing an action under § 1915(e)(2)(B)(ii) for failure to state a claim. See Allah

v. Seiverling,

(3d Cir. 2000). We review the District Court’s denial of

leave to amend for abuse of discretion, although we review de novo the determination

that amendment would be futile. See U.S. ex rel. Schumann v. AstraZeneca Pharms. L.P.,

(3d Cir. 2014).

Like the District Court, we conclude that Patrick failed to state viable claims and,

further, that allowing him to amend his complaint would have been a futile act. But our

rationales are not identical. Cf. Watters v. Bd. of Sch. Dirs. of City of Scranton,

(3d Cir. 2020) (“[W]e may affirm based ‘on any ground supported by the

record.’”) (citation omitted).

Insofar as Patrick raised illegal search or false imprisonment claims under the

Fourth Amendment, based on events predating his complaint by more than two years, we

1 While Patrick was not incarcerated at the time he filed the underlying action or this appeal, he has informed the Court that he has since been reincarcerated. 3 agree with the District Court that such claims are untimely. See Wallace v. Kato,

(2007); Nguyen v. Pennsylvania,

(3d Cir. 2018); cf.

Smith v. Travelpiece,

(4th Cir. 2022) (rejecting argument that illegal

search claims were subject to deferred accrual under Heck). But insofar as Patrick raised

wrongful conviction or malicious prosecution claims, those would not begin to accrue

until the criminal case terminated in his favor. See Coello v. DiLeo,

, 354

(3d Cir. 2022). And Patrick’s complaint makes plain that his drug conviction is intact.2

Thus, the District Court should not have ruled that all of Patrick’s claims were untimely.

That said, dismissal of the wrongful conviction and malicious prosecution claims was

nevertheless proper based on the District Court’s alternative ruling that the claims are

Heck-barred. See Estate of Smith v. Marasco,

(3d Cir. 2003).3

A final point: The District Court did not explicitly say whether its order of

dismissal was with or without prejudice, which means it was the former. See Shane v.

Fauver,

(3d Cir. 2000); see also Cohen v. Longshore,

(10th Cir. 2010). Because the wrongful conviction and malicious prosecution

2 While Patrick devotes a substantial portion of his opening brief to challenging the constitutionality of his conviction (notwithstanding his guilty plea), an appeal of an adverse decision in a § 1983 case is the wrong place to do that. 3 For those same reasons, we do not agree with the District Court’s determination that amendment of Patrick’s complaint would have been futile on the ground that all of his claims are time-barred. Instead, amendment would have been futile because some claims are untimely, and because the remainder are Heck-barred. 4 claims are only properly dismissed as Heck-barred, the District Court’s September 8,

2022 order must be modified to reflect that dismissal of those claims is without prejudice.

See Curry v. Yachera,

(3d Cir. 2016).4

Accordingly, we will modify the District Court’s September 8, 2022 order in the

manner described above, and will affirm it as modified. Patrick’s motion to expedite the

appeal is denied as moot.

4 Abstention under Younger requires that there be “an ongoing judicial proceeding.” PDX N., Inc. v. Comm’r N.J. Dep’t of Lab. & Workforce Dev.,

, 879 n.3 (3d Cir. 2020). It is not apparent from the record on appeal that there was something pending in Patrick’s criminal case between (1) the time he filed this § 1983 action and (2) the issuance of the Magistrate Judge’s Report (which, as noted above, relied on Younger abstention as an alternative basis for dismissal). See id. at 885; cf. Tokyo Gwinnett, LLC v. Gwinnett County, Ga.,

(11th Cir. 2019). 5