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


10-26-2006

Gay v. Philadelphia
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4718




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Recommended Citation
"Gay v. Philadelphia" (2006). 2006 Decisions. Paper 293.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/293


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                                             NOT PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT

                            NO. 05-4718
                         ________________

                         WILMER B. GAY,
                               Appellant
                               v.

      CITY OF PHILADELPHIA; ARLEN SPECTER, INDIVIDUALLY AND IN
    HIS OFFICIAL CAPACITY AS DISTRICT ATTORNEY OF PHILADELPHIA
       COUNTY AND FOR CITY OF PHILADELPHIA; THOMAS WATKINS,
         ASSISTANT DISTRICT ATTORNEY; GAETAN J. ALFANO, HIS
     PREDECESORS AND SUCCESSORS IN OFFICE; LYNNE M. ABRAHAM,
  DISTRICT ATTORNEY; CATHERINE L. MARSHALL, ASSISTANT DISTRICT
    ATTORNEY; ELIZABETH J. CHAMBERS, INDIVIDUALLY AND IN THEIR
      OFFICIAL CAPACITY AS DISTRICT ATTORNEYS OF PHILADELPHIA
      COUNTY AND FOR CITY OF PHILADELPHIA; DET. JOSEPH CLEARY,
         BADGE NO. 861; POLICE OFFICER O'BRIEN, BADGE NO. 865,
       INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES AS POLICE
    DETECTIVES FOR CITY OF PHILADELPHIA COUNTY; GEORGE J. IVINS,
   INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS TRIAL JUDGE; HIS
  CO-CONSPIRATORS; JOSEPH A. MURRY, PRELIMINARY HEARING JUDGE;
  CHARLES P. MIRARCHI, PCHA JUDGE; EDWARD J. BLAKE, PCHA JUDGE;
   JOHN J. POSERINA; PCHA JUDGE, IN THEIR INDIVIDUAL AND OFFICIAL
       CAPACITIES AS PCRA JUDGES AND FOR CITY OF PHILADELPHIA;
  ZYGMONT A. PINES, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS
    COURT ADMINISTRATOR OF PENNSYLVANIA, HIS PROTHONOTARIES;
   JOHN W. PERSON, FOR SUPREME COURT OF PENNSYLVANIA; DAVID A.
    SZEWCZAK, FOR SUPERIOR COURT; JOSEPH H. EVERS, FOR COURT OF
  COMMON PLEAS PHILADELPHIA COUNTY; ALBERTA COPELAND, CLERK
     FOR PCRA UNIT COURT OF COMMON PLEAS PHILDELPHIA COUNTY,
   INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES; MIKE D. FISHER,
 INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL
FOR COMMONWEALTH OF PENNSYLVANIA; FRANCIS R. FILIPI, HIS DEPUTY
  ATTORNEY GENERAL; DALINDA E. CARREOR; PATRICK J. MCMONAGLE;
SUSAN J. FORENY, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES AS
DEPUTY ATTORNEY GENERALS FOR COMMONWEALTH; JEFFERY A. BEARD,
     INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS SECRETARY OF
  CORRECTIONS; CHIEF D.A. SARA B. VANDENBRAAK, HIS AGENTS, CHIEF
COUNSEL FOR PDOC; THOMAS L. JAMES; CHIEF GRIEVANCE COORDINATOR
 FOR PDOC; KENNETH D. KYLER, SUPERINTENDENT AT SCI-HUNTINGDON;
DIANA G. BANEY, GRIEVANCE COORDINATOR; PAUL WEAVERLING, MAJOR
   OF GUARDS; DONALD ELLIOT, CA UNIT MANAGER; WILT, SGT., ON CA
    BLOCK; CO1 INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES AT
  SCI-HUNTINGDON; HAROLD L. RANDOLPH, TRIAL COUNSEL; ROBERT B.
MOZENTER, FIRST PCHA COUNSEL; JOEL P. TRIGIANI; ROBERT P. WILLIAMS,
      THIRD PCRA COUNSEL; INDIVIDUALLY AND IN THEIR OFFICIAL
              CAPACITIES AS "STATE ACTORS" THEREWITH
    ABOVE NAMED MUNICIPAL OFFICERS TO DEPRIVE THEIR CLIENT OF
    CONSTITUTIONALLY PROTECTED RIGHTS; JAMES GARDNER COLINS,
      INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS JUDGE FOR
   COMMONWEALTH COURT; CIVIL TRIAL JUDGE WILLIAM J. MANFREDI,
 INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS JUDGE FOR THE CITY
OF PHILADEPHIA COUNTY COURT OF COMMON PLEAS; RUSSELL M. NIGRO,
 INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS JUDGE FOR SUPREME
                      COURT OF PENNSYLVANIA
                 ____________________________________

               On Appeal From the United States District Court
                   For the Eastern District of Pennsylvania
                          (D.C. Civ. No. 03-cv-05358)
                 District Judge: Honorable Norma L. Shapiro
               _______________________________________


                 Submitted Under Third Circuit LAR 34.1(a)
                             October 11, 2006


           Before: McKEE, FUENTES, NYGAARD, Circuit Judges.

                          (Filed October 26, 2006 )


                        _______________________

                               OPINION
                        _______________________

                                     2
PER CURIAM

       Wilmer B. Gay, a prisoner, appeals pro se from the order of the United States

District Court for the Eastern District of Pennsylvania granting dismissal pursuant to

Federal Rule of Civil Procedure 12(b)(6) of this action brought under 42 U.S.C. § 1983.

       The parties are familiar with the facts of the case, a summary of which is set forth

in the District Court Opinion, and thus, we will not recount them at length here. In 1972,

Gay was convicted of murder in Philadelphia County and was sentenced to life

imprisonment. In 2003, Gay filed this § 1983 Complaint, which he amended twice,

alleging that the judicial, prosecutorial, criminal defense and post-conviction counsel,

police, and court clerk defendants involved in his 1971 arrest and subsequent prosecution

violated his due process rights and engaged in a conspiracy to convict him, to keep him

incarcerated, and to deny him access to the court for redress of grievances. Gay also

alleged a separate conspiracy among the Attorney General’s Office, prison officials,

grievance coordinators, and officers to deprive him of access to his legal materials with

respect to a PCRA proceeding. He alleged certain retaliatory acts relating to his efforts to

overturn his conviction. He claimed that the District Attorney and her alleged

accomplices conspired to wash his socks in sodium hydroxide in retaliation for pursuing

federal habeas corpus relief in Gay v. Reid, Civ. A. No. 88-04433. Gay also claimed that

the defendants conspired against him with respect to his conviction and attempts to

overturn it, because of his race in violation of § 1985(2) and § 1986.



                                             3
       In another series of allegations, Gay asserted that in March 2001, he was

transferred to SCI-Huntingdon in retaliation for filing a civil rights suit in Gay v.

Shannon, Civ. A. No. 02-04693 (E.D. Pa.). Gay also alleged that in March and August

2002, officials and correctional officers at SCI-Huntingdon, certain judges and court

administrative staff and clerks, the District Attorney, and Gay’s trial counsel conspired to

deny him access to his core legal materials. Gay averred that the City of Philadelphia was

liable because of its custom and practice of depriving him of his constitutional rights. He

generally alleged malfeasance by the Attorney General, the Secretary of the Department

of Corrections (“DOC”) and other prison and court administrative staff. He sought

damages.

       The defendants moved for Rule 12(b)(6) dismissal, contending that Gay’s § 1983

claims arising out of alleged actions occurring prior to October 2001 were barred by the

applicable two-year statute of limitations, that claims against the judicial and

prosecutorial defendants were barred by the doctrines of absolute judicial and

prosecutorial immunity, and that the remainder of the allegations in the Second Amended

Complaint failed to state a § 1983 claim upon which relief could be granted. Gay

responded, and upon consideration of the parties’ written submissions, the District Court

granted the Defendants’ motions to dismiss.

       The District Court ruled that all of the civil rights claims allegedly occurring from

1972 through September 2001, were barred by the applicable two-year statute of



                                              4
limitations. The District Court also held that Gay failed to allege any constitutional

violation against the City of Philadelphia that was not barred by the two-year statute of

limitations. Next, the District Court determined that all of Gay’s claims against the

judicial and prosecutorial defendants were barred by the doctrines of absolute judicial and

prosecutorial immunity because the allegations against these defendants involved actions

taken within the scope of their respective jurisdictions. Gay’s claims against the court

administrative and clerk staff were barred because these defendants enjoyed quasi-judicial

immunity.

       As for the remainder of Gay’s claims alleging conspiracy, retaliation, and denial of

access to his legal materials, the District Court ruled that Gay failed to state a claim upon

which relief can be granted. As to the allegations involving the storage of his legal

materials at SCI-Huntingdon, the District Court held that Gay failed to state a denial of

access to the courts claim or a retaliation claim because the removal of excess legal

materials from his cell was conducted pursuant to prison regulation reasonably related to

a legitimate prison interest and Gay did not allege that he was deprived of access to the

removed material. As for threats by certain corrections officers of future confiscation of

Gay’s legal materials, the District Court held that verbal threats, alone, do not amount to a

constitutional claim under § 1983. With respect to Gay’s conspiracy claims, the District

Court determined that Gay failed to allege any fact from which one could infer an

agreement or understanding among the defendants to violate his constitutional rights



                                              5
under § 1983, or to discriminate against him on account of his race under § 1985(2).

Because Gay failed to state a § 1985(2) conspiracy claim, the District Court ruled that his

related § 1986 claims also failed.

       After the District Court denied Gay’s motion for reconsideration, Gay filed a

timely notice of appeal. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291 and

we exercise plenary review of a Rule 12(b)(6) dismissal. See Weston v. Pennsylvania,

251 F.3d 420, 425 (3d Cir. 2001). We accept as true all factual allegations in the

complaint and will affirm a dismissal under Rule 12(b)(6) only if it is certain that no relief

can be granted under any set of facts which could be proved. Steamfitters Local Union

No. 420 Welfare Fund v. Phillip Morris Inc., et al., 171 F.3d 912, 919 (3 rd Cir. 1999).

       We will affirm for substantially the same reasons set forth in the District Court’s

opinion. We add only that, to the extent that Gay’s claims arising out of his prosecution

for murder imply the invalidity of the conviction and sentence, the claims are not

cognizable under § 1983 absent a showing that the conviction or sentence has been

overturned or otherwise invalidated. See Heck v. Humphrey, 512 U.S. 477 (1994).

       We have thoroughly reviewed Gay’s arguments made on appeal and find them to

be meritless.

       Accordingly, we will affirm the judgment of the District Court. Appellant’s

request and statement of reasons for oral argument is denied.
