                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-3-2009

Bierley v. Dombrowski
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4483




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Recommended Citation
"Bierley v. Dombrowski" (2009). 2009 Decisions. Paper 1938.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1938


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                                                     NOT PRECEDENTIAL

              UNITED STATES COURT OF APPEALS
                   FOR THE THIRD CIRCUIT
                        ___________

                            No. 07-4483
                            ___________

                       HARRY L. BIERLEY,
                                       Appellant

                                  v.

               DETECTIVE LARRY DOMBROWSKI;
                  DEP. MICHAEL GROLUMOND;
              POLICE OFFICER ERIK CHRISTENSEN;
                LT. SHERIFF STEPHEN BRANDON;
    SHERIFF ROBERT MERSKI; JUDGE ERNEST DISANTIS, JR.;
     ADA/FORMER PD CHRISTINE KONZEL; ADA LISA STEIN;
    ADA DOUGLAS MCCORMICK; POLICE OFF. JAMES BOYD;
PAROLE OFF. DANTE BATTLES; PAROLE SUPER. RAYMOND READE;
COLLECT. OFF. PHILLIP LEGLER; COLLECT. OFF. PAUL R. KETCHUM;
 D.A. BRADLEY FOULK; COUNTY EXECUTIVE MARK DIVECCHIO;
            ASS’T P.D. ANDREW H. WEINRAUB, ESQ.;
   ASSIST. P.D. ALAN J. NATALIE; WARDEN JAMES VESHECCO
             ____________________________________

           On Appeal from the United States District Court
               for the Western District of Pennsylvania
                        (D.C. No. 06-cv-00272)
           District Judge: Honorable Maurice B. Cohill, Jr.
            ____________________________________

             Submitted Pursuant to Third Circuit LAR 34.1(a)
                            February 2, 2009
   Before: FISHER, JORDAN and VAN ANTWERPEN, Circuit Judges.

                     (Filed: February 03, 2009 )
                            ___________

                             OPINION
                                       ___________

PER CURIAM

       Harry L. Bierley, proceeding pro se and in forma pauperis, sued 19 Defendants. In

his complaint, he contended that Defendants used perjury to defame him and win an

illegal conviction against him, and unlawfully imprisoned him for 51 days. Bierley also

complained about his February 4, 2005 arrest for being in an Erie County Courthouse

without permission. He alleged that one Defendant, his parole officer, did not care that

Bierley believed his parole was illegal, and subjected him to many harassing, unwanted,

and unwelcome visits to his home. He also claimed that his imprisonment after a hearing

on another parole violation in September 2005 was illegal, as was the extension of his

parole time after a related hearing in October 2005. He expressed his anger about having

had to pay costs, fees, and fines. He also took issue with a county executive’s decision

not to file a complaint with the Pennsylvania Attorney General or in federal court to

protest a judge’s decision to imprison him. In addition to a declaration that Defendants

violated his rights, he asked for damages against all but one Defendant1 and the issuance

of an arrest warrant against all Defendants for sedition, subversion, treason, conspiracy,

and civil rights violations.




       1
      On appeal, among other forms of relief, he asks us to assess $84,522,009 in
damages against each Defendant without exception.

                                             2
       In the District Court, Defendants filed motions to dismiss Bierley’s complaint.

They argued that the claims against them were barred by res judicata and collateral

estoppel, the Rooker-Feldman doctrine,2 and various immunities. Defendants also argued

that Bierley had failed to state a claim on which relief can be granted. The District Court

granted the motions and dismissed the complaint.

       The District Court held that the principles of res judicata and collateral estoppel

barred the suit because Bierley raised the same allegations and causes of action he raised

in his previous dismissed lawsuit. The District Court also stated that the Rooker-Feldman

doctrine precluded Bierley’s claims that were attempts to relitigate or collaterally attack

state court decisions as well as those claims that were inextricably intertwined with those

state court decisions. The District Court additionally held that Bierley did not state

claims of equal protection violations or conspiracy to violate his civil rights. The District

Court determined that the police officer and warden Defendants were entitled to qualified

immunity, the District Attorney Defendants were immune from suit for their prosecutorial

activity, and the judicial Defendant was entitled to judicial immunity for his conduct. All

Defendants were held to be immune from Bierley’s common law claims under the

Political Subdivision Tort Claims Act, 42 P.S. § 8541. Bierley filed a motion for

reconsideration, which the District Court denied. Bierley appeals.




       2
       The doctrine is derived from Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923),
and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).

                                              3
       We have jurisdiction pursuant to 28 U.S.C. § 1291.3 Our review of the order

dismissing the complaint is plenary.4 See Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996);

see also Gould Elecs., Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000). We review

the order denying the motion for reconsideration for abuse of discretion. See Koshatka v.

Phila. Newspapers, Inc., 762 F.2d 329, 333 (3d Cir. 1985).




       3
        Some Defendants/Appellees argue that we do not have jurisdiction over Bierley’s
appeal because he did not file his notice of appeal within 30 days of the District Court’s
final order and because he did not file his motion for reconsideration within 10 days of
the District Court’s order. See Bowles v. Russell, 127 S. Ct. 2360, 2363-66 (2007)
(holding that the time limit of Rule 4(a)(1) for commencing an appeal is mandatory and
jurisdictional). However, a notice of appeal in a civil case in which the United States is
not a party is timely if it is filed within 30 days of the entry of the order or judgment being
appealed. See Fed. R. App. P. 4(a)(1). If Rule 58 of the Federal Rules of Civil Procedure
requires a separate document, as it did when the District Court dismissed Bierley’s
complaint, the order is not considered entered until it is entered on the docket under Rule
79(a) of the Federal Rules of Civil Procedure and the earlier of these two events occurs:
(1) the order is set forth on a separate document, or (2) 150 days have run from the
order’s entry on the docket pursuant to Rule 79(a). See Fed. R. App. P. 4(a)(7)(A)(ii).
Because the District Court did not issue its order on a separate document, Bierley had 180
days to file his notice of appeal. See Leboon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503
F.3d 217, 223 (3d Cir. 2007). Accordingly, Bierley timely appealed from the District
Court’s order granting the motions to dismiss and dismissing his complaint when he filed
his notice of appeal approximately two months after the District Court signed its order.
We will also consider his appeal from the order denying his motion for reconsideration.
A motion for reconsideration must be filed no later than 10 days after the entry of
judgment. See Fed. R. Civ. P. 59(b). Because the entry of judgment was delayed because
the District Court did not issue a separate document, Bierley’s motion for reconsideration
was timely filed. His notice of appeal (within 30 days) from the order denying his motion
for reconsideration was also timely as to that order (which is not subject to the separate
document requirement, see Fed. R. Civ. P. 58(a)(4)).
       4
        In reviewing this matter, we reject absolutely Bierley’s bilious attacks on the
integrity of the District Court judge in this case.

                                              4
       The District Court properly dismissed many of Bierley’s claims on res judicata

grounds. Res judicata encompasses two preclusion concepts – issue preclusion, which

forecloses litigation of a litigated and decided matter (often referred to as direct or

collateral estoppel), and claim preclusion, which disallows litigation of a matter that has

never been litigated but which should have been presented in an earlier suit. See Migra v.

Warren City School Dist. Bd. of Educ., 465 U.S. 75, 77 (1984). Some of Bierley’s claims

are identical to those he raised in an earlier complaint against the same Defendants.

Compare Supp. App. of Gromolund, et al. Ex. A, Complaint at ¶¶ 15, 16, 17, & 13 with

id. at Ex. B, Complaint at ¶¶ 6, 7, 8, & 16; compare also id. at Ex. A, Complaint at ¶ 10

and Ex. F at 2 (describing the facts of Bierley’s case). The District Court dismissed that

earlier complaint, id. at Ex. D; we dismissed Bierley’s appeal from that dismissal as

frivolous, id. at Ex. F & G; and the Supreme Court not only dismissed Bierley’s

subsequent petition for writ of certiorari, but also directed its Clerk not to accept any

more of Bierley’s petitions in non-criminal matters because Bierley had repeatedly abused

the Court’s process, id. at Ex. H. Although Bierley’s other claims are not copied verbatim

from his earlier complaint, some nonetheless relate to the same cause of action. See

United States v. Athlone Industries, Inc., 746 F.2d 977, 984 (3d Cir. 1984) (describing

how we define cause of action for purposes of res judicata analysis).

       To the extent that Bierley relied on material facts in the second suit that he did not

rely on in the first suit, namely, as Bierley presses in his brief, incidents that occurred



                                               5
after the District Court dismissed his previous complaint, we will affirm the District

Court’s order on alternative grounds. See Erie Telecomms. v. Erie, 853 F.2d 1084, 1089

(3d Cir. 1988); see also 28 U.S.C. § 1915(e)(2)(B). Bierley faces the same obstacle to

success in this case as he did in his previous appeal. Through his claims related to his

parole revocation in September and October 2005, subsequent imprisonment, and

associated fees, fines, and costs, he is attempting to challenge the fact or duration of a

conviction or sentence. Under Heck v. Humphrey, Bierley cannot bring such a challenge

unless he can show that his conviction or sentence has been invalidated. See 512 U.S.

477, 486 (1994). Although Bierley noted that a summary conviction of his was reversed

on appeal, he did not allege that a relevant parole revocation decision was ever overturned

or declared invalid. Accordingly, Bierley faces a Heck bar. Cf. Williams v. Consovoy,

453 F.3d 173, 177 (3d Cir. 2006).

       Furthermore, if any claims survive the Heck bar, the prosecutor Defendants have

absolute immunity for their actions arising out of their official duties, see Imbler v.

Pachtman, 424 U.S. 409, 427 (1976), and the police officers and warden Defendants are

entitled to qualified immunity for acting pursuant to a sentence that had been legally

imposed and not yet overturned, see Showers v. Spangler, 182 F.3d 165, 171-72 (3d Cir.

1999). (The judicial Defendant also is immune from Bierley’s suit to the extent that

Bierley seeks damages from him. See Stump v. Sparkman, 435 U.S. 349, 356-57 (1978).)




                                              6
       Also, to the extent Bierley’s general claims of an equal protection violation and a

conspiracy to violate his civil rights touched on material facts that were not Heck-barred

or part of his previous cause of action, we conclude, as the District Court did, that Bierley

failed to state a claim upon which relief can be granted. Moreover, Defendants are

immune from suit on any common law claims that similarly survived. See 42 P.S. § 8541.

       The District Court did not abuse its discretion in denying Bierley’s motion for

reconsideration because the motion did not serve “to correct manifest errors of law or fact

or to present newly discovered evidence,” Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909

(3d Cir. 1985).

       Because the District Court properly dismissed Bierley’s complaint and denied his

motion for reconsideration, we will affirm the District Court’s judgment.




                                              7
