                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-20-2006

Corliss v. O'Brien
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4799




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Recommended Citation
"Corliss v. O'Brien" (2006). 2006 Decisions. Paper 429.
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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 05-4799
                                   ________________

                                 JUSTIN M. CORLISS,

                                             Appellant

                                               v.

                        PETER O’BRIEN; RONALD VICAN;
                       BRIAN GERMANO; PETER QUIGLEY;
                                JOHN P. LAVELLE
                      ____________________________________

                    On Appeal From the United States District Court
                        For the Middle District of Pennsylvania
                           (M.D. Pa. Civ. No. 05-cv-00347)
                      District Judge: Honorable John E. Jones, III
                    _______________________________________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 September 14, 2006

          Before: MCKEE, FUENTES AND NYGAARD, CIRCUIT JUDGES

                               (Filed: September 20, 2006)

                              _______________________

                                     OPINION
                              _______________________

PER CURIAM.

      In February 2005, Justin M. Corliss, a prisoner, filed a pro se civil rights

complaint. Corliss claims that the defendants fraudulently misrepresented facts in appeals
of various civil actions he filed in state court. He contends that defendants O’Brien,

Vican, and Lavelle retaliated against him for attempting to redress his grievances “by

penning opinions that have no basis in law or fact...” causing dismissal of his suits and

denial of access to the courts. Corliss also alleges that the defendants conspired to

deprive him of his constitutionally protected rights by “ignor[ing] facts of record, the law

and constitutionally protected rights and privileges of the Plaintiff,” and by “penning

baseless opinions, denying Plaintiff access to the courts, delaying and obfuscating

Plaintiff’s actions at law and covering up the criminal conduct of the defendants in

general through their abuse of their power and authority.” He asserts that the state court

wrongly imposed a pre-filing injunction. He is seeking declaratory relief and damages

against the attorneys who represented him in state court criminal and post-conviction

proceedings and several state court judges.

       The District Court dismissed sua sponte the complaint without prejudice pursuant

to 28 U.S.C. § 1915A.1 Corliss filed a motion for reconsideration, which the District

Court denied. Corliss timely appealed.

       We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. Our standard of


       1
          We have jurisdiction to consider this appeal. The District Court determined, in
part, that Heck v. Humphrey, 512 U.S. 477 (1994), precluded Corliss’s claims, and thus,
it dismissed the complaint without prejudice. Because the judicial defendants enjoy
absolute immunity from Corliss’s claims for damages and injunctive relief and the
defense counsel defendants are not state actors for § 1983 purposes, however, effective
amendment of the complaint is not available to Corliss, and thus, the order appealed is a
final and appealable order. Borelli v. City of Reading, 532 F.2d 950, 951-52 (3d Cir.
1976) (per curiam).

                                              2
review of the District Court’s dismissal under § 1915A is plenary. “We must determine

whether, under any reasonable reading of the pleadings, the plaintiff may be entitled to

relief, and we must accept as true the factual allegations in the complaint and all

reasonable inferences that can be drawn therefrom.” Nami v. Fauver, 82 F.3d 63, 65 (3d

Cir. 1996) (citation omitted). We will affirm.

       We need not address whether the rule in Heck precludes some of Corliss’s claims

at this time because the allegations challenging the validity of his criminal conviction and

sentence fail to state a claim upon which relief can be granted on the same grounds as his

non-criminal trial related allegations: judicial immunity and lack of state action on the

part of the public defender defendants.2

       Corliss asserts that Common Pleas Court Judges O’Brien and Vican frustrated his

pursuit of post-conviction relief by falsely deciding that the issues presented were barred

as previously litigated. He alleges further that Judge Vican, in a legal malpractice suit

against Quigley, in which Corliss named Judge Vican as a co-conspirator, wrongly denied

Corliss’s discovery request and refused to issue default judgment when Quigley failed to

file a timely Answer. He asserts that Judge O’Brien made two erroneous jury instructions

at his criminal trial, wrongly denied de novo review of the criminal complaint in which he

was the named defendant, and declined to grant Corliss in forma pauperis status to



       2
         It appears that Corliss cannot satisfy the rule in Heck, in any event. This Court
recently denied a certificate of appealability in Corliss’s appeal of the District Court’s
order denying § 2254 relief. Corliss v. Folino, C.A. No. 05-4922 (3d Cir. Jun. 2, 2006).

                                              3
proceed in a number of legal malpractice actions Corliss brought in state court. Corliss

claims that Judge Lavelle wrongly denied post-conviction relief on the ground that the

claims had been previously litigated.

       We conclude that all of these claims are barred by the doctrine of absolute judicial

immunity.3 A judicial officer in the performance of his duties has absolute immunity

from suit. Mireles v. Waco, 502 U.S. 9, 12 (1991). “A judge will not be deprived of

immunity because the action he took was in error, was done maliciously, or was in excess

of his authority; rather, he will be subject to liability only when he has acted in the ‘clear

absence of all jurisdiction.’ ” Stump v. Sparkman, 435 U.S. 349, 356-57 (1978) (citation

omitted).

       Corliss has not set forth any facts that would show that the judicial defendants’

actions were taken in clear absence of their jurisdiction. When Judge O’Brien denied the

private criminal complaint Corliss filed against him, he acted within his jurisdiction to

review private criminal complaints pursuant to Pennsylvania Rule of Criminal Procedure

506(B)(2). Judge Vican also acted within his jurisdiction in denying pre-trial motions in

a legal malpractice suit naming him as a co-conspirator. Corliss does not frame his



       3
          Corliss failed to state a civil rights conspiracy claim against the judicial
defendants, in any event. Assuming the truth of the allegations and giving them the most
liberal construction possible, the complaint simply fails to identify anything more than
single rulings made by individual judges. The fact that the judicial defendants denied
Corliss’s requests for relief in his various lawsuits and post-conviction proceedings does
not give rise to an inference of an understanding or agreement among them to deprive
Corliss of a constitutionally protected right.

                                               4
claims as a failure to recuse; even if he had, a judge’s decision not to recuse himself from

a case in which he holds a personal interest is itself an exercise of judicial authority

protected by the doctrine of absolute immunity.

       As for defendant Germano, Corliss maintains that, at trial, Germano failed to

object to erroneous jury instructions and failed to investigate DNA evidence. In April

2000, Germano allegedly perjured himself at a post-conviction evidentiary hearing when

he testified that he had not presented an alibi defense. According to Corliss, post-

conviction counsel, Quigley, did nothing to stop the alleged perjury. He contends that,

after the hearing, Germano made statements to the press that were published in the

Pocono Record Newspaper.

       With the exception of allegations pertaining to Germano as a witness, the

allegations against defendants Germano and Quigley pertain to their representation of the

defendant in state court criminal and post-conviction proceedings. Their representation,

alone, does not render either of them a “person acting under color of state law” under

§ 1983. See Polk v. County of Dodson, 454 U.S. 312, 325 (1981) (a private attorney,

even if appointed and paid for by the state, is not acting under color of state law when

performing his function as counsel). Moreover, we find no nexus between the judicial

defendants and counsel such that Germano and Quigley may be fairly treated as “state

actors.” As for Corliss’s allegations that Germano perjured himself at a post-conviction

evidentiary hearing and made post-hearing statements to the press, he fails to state a claim

upon which relief may be granted because Germano was not “acting under color of state

                                               5
law” when he testified as a witness or talked to the press.

       Corliss would be entitled to relief on his § 1983 conspiracy claim against Germano

and Quigley if these defendants had reached an understanding with at least one of the

judicial defendants to deny Corliss a constitutionally protected right. See Kost v.

Kozakiewicz, 1 F.3d 176, 185 (3d Cir. 1993). “Establishing the existence of this

‘understanding,’ however, is really nothing more than another way to show state action as

required by § 1983 when a private party is alleged to have violated that statute.” Id. The

Complaint is devoid of any facts from which one could infer that Germano and Quigley

had an understanding or an agreement with either judicial defendant to conspire against

Corliss.

       For these reasons, the District Court properly concluded that Corliss could not

pursue his claims for damages against the defendants.

       That leaves Corliss’s request for declaratory relief.4 To the extent that Corliss

seeks injunctive relief, the 1996 amendment to § 1983 bar Corliss’s claims for injunctive

relief against the state court judges. But the 1996 amendment does not alter case law



       4
         Corliss’s complaint contains the following requests for declaratory relief: “(4)
that the Defendants’ conduct be declared to be in violation of the penal laws of the
Commonwealth of Pennsylvania and contrary to the peace and dignity thereof; (5) That
the conduct Defendants O’Brien, Vican, and Lavelle be declared to be unjust and a
manifest injustice would occur if the decisions, opinions and orders issued by them are
followed as they have no basis in fact or law and are contrary to the facts of record; (6)
That the court issue a declaration that Plaintiff’s constitutionally protected rights have
been violated.” Requests (4) and (5) relate to matters of state law for which the District
Court apparently declined to exercise supplemental jurisdiction.

                                              6
regarding the availability of declaratory relief against judicial officers. See Brandon E. ex

rel. Listenbee v. Reynolds, 210 F.3d 194, 197-198 (3d Cir. 2000). We believe that

Corliss is not seeking declaratory relief in the true legal sense, however. See Fed. R. Civ.

P. 57; 28 U.S.C. § 2201. In his complaint, Corliss asks that the District Court “declare”

that his constitutional rights were violated. Declaratory judgment is inappropriate solely

to adjudicate past conduct. Gruntal & Co., Inc. v. Steinberg, 837 F.Supp. 85, 89 (D. N.J.

1993). Nor is declaratory judgment meant simply to proclaim that one party is liable to

another. See Loveladies Harbor, Inc. v. United States, 27 F.3d 1545, 1553-54 (Fed. Cir.

1994) (en banc) (concluding that the plaintiff’s prayer for a “declaration” of a regulatory

taking was “different from a formal declaration under the Declaratory Judgement Act.”).

       Corliss argues that the District Court should have allowed him to amend his

complaint before dismissing it sua sponte. Such an amendment would have been futile,

however, because it would not have corrected the deficiencies in the complaint. The

District Court did not abuse its discretion in denying the motion for reconsideration.

Max’s Seafood Café v. Quinteros, 176 F.3d 669, 673 (3d Cir. 1999). Upon careful

review of Corliss’s other arguments on appeal, we conclude that they are without merit.

       Accordingly, we will affirm the judgment of the District Court.



                                             7
