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


7-8-2008

Logan v. Fitzpatrick
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3928




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Recommended Citation
"Logan v. Fitzpatrick" (2008). 2008 Decisions. Paper 874.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/874


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AMENDED RESUBMIT CLD-74                                    NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT


                                   No. 07-3928


                   CALVIN C. LOGAN; DAVID JOHNSON;
                   ANDRE MARTIN, others similarly situated,
                                           Appellants


                                         v.

  F. EMMETT FITZPATRICK; LYNNE ABRAHAM; PHILADELPHIA DISTRICT
     ATTORNEY'S OFFICE; ROBERT P. KANE; THOMAS W. CORBETT, JR.;
            PENNSYLVANIA ATTORNEY GENERAL'S OFFICE


                 On Appeal from the United States District Court
                    for the Eastern District of Pennsylvania
                          (D.C. Civil No. 06-cv-04450)
                   District Judge: Honorable Robert F. Kelly


          Submitted for Possible Dismissal Due to a Jurisdictional Defect
                     or Pursuant to 28 U.S.C. § 1915(e)(2)(B)
                                   June 2, 2008

           Before: AMBRO, FUENTES and JORDAN, Circuit Judges

                           (Opinion filed: July 8, 2008)


                                    OPINION


PER CURIAM

    Calvin Logan, David Johnson, and Andre Martin appeal the District Court’s orders
granting appellees’ motions to dismiss and denying appellants’ motion for

reconsideration. We will dismiss the appeal as legally frivolous pursuant to 28 U.S.C. §

1915(e)(2)(B).

       The procedural history of this case and the details of appellants’ claims are well

known to the parties, set forth in the District Court’s thorough opinion, and need not be

discussed at length. Briefly, the appellants, who are serving life sentences, filed a civil

complaint alleging that their rights to fair trials were violated when they were tried and

sentenced under Pennsylvania’s death penalty statute. The District Court granted

appellees’ motion to dismiss on May 3, 2007. Appellants filed a timely motion for

reconsideration which the District Court denied on June 20th. On September 28, 2007,

appellants filed a notice of appeal which include a motion for relief. We remanded the

matter to the District Court to construe the motion as one to reopen the time to appeal

under Fed. R. App. P. 4(a)(6). On May 22, 2008, the District Court granted the Rule

4(a)(6) motion.

       Because the District Court reopened the time to appeal, appellants’ notice of

appeal is timely, and we have jurisdiction under 28 U.S.C. § 1291. Because appellants

are proceeding in forma pauperis on this appeal, we must analyze their appeal for possible

dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B). Under § 1915(e)(2)(B), we must

dismiss an appeal if the action (i) is frivolous or malicious, (ii) fails to state a claim upon

which relief may be granted, or (iii) seeks monetary damages from a defendant with



                                               2
immunity. An action or appeal can be frivolous for either legal or factual reasons.

Neitzke v. Williams, 490 U.S. 319, 325 (1989).

       We agree with the District Court that appellants cannot challenge their convictions

through a civil complaint and instead must proceed under 28 U.S.C. § 2254. See Preiser

v. Rodriguez, 411 U.S. 475 (1973). For essentially the reasons given by the District

Court, we will dismiss the appeal as legally frivolous. Appellants’ motion to expand the

record is denied.




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