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


3-24-2009

Michael Greene v. Michael Barrasse
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2753




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Recommended Citation
"Michael Greene v. Michael Barrasse" (2009). 2009 Decisions. Paper 1699.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1699


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AMENDED DLD-111                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 08-2753


                                MICHAEL GREENE,
                                              Appellant

                                          v.


                 MICHAEL BARRASSE; MARY ANNE GRIPPO;
                COREY KOCHARNO; JASON MILLS; JAY RUANE



                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                               (D.C. Civil No. 08-00821)
                      District Judge: Honorable Edwin M. Kosik


        Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
                                  February 20, 2009

                Before: BARRY, AMBRO and SMITH, Circuit Judges

                            (Opinion filed: March 24, 2009)


                                      OPINION


PER CURIAM

      Michael Greene, a prisoner proceeding pro se, appeals from the District Court’s

order dismissing his complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). We agree with the
decision of the District Court and will dismiss the appeal.

                                              I

       In 2006, Greene was convicted of aggravated assault in the Lackawanna County

Court of Common Pleas. As a result of his repeat offender status, he received a

mandatory sentence of life imprisonment.

       Greene filed a civil rights action pursuant to 42 U.S.C. § 1983 in May 2008,

seeking damages for his current incarceration and for the conduct of various participants

in his criminal trial, including the trial judge, two prosecutors, and two police officers

who served as witnesses for the Commonwealth. Greene’s complaint alleges, inter alia:

(1) the Commonwealth improperly reopened his case; (2) prosecutorial misconduct; (3) a

conspiracy between prosecutors and the trial judge to permit witness perjury; (4)

deliberate misrulings by the trial judge to prejudice the jury against Greene; and (5)

purposeful destruction of exculpatory evidence.

                                              II

       A federal court must dismiss the complaint or appeal of a plaintiff proceeding in

forma pauperis if the action is “frivolous.” 28 U.S.C. § 1915(e)(2). The United States

Supreme Court clarified this standard in Neitzke v. Williams, 490 U.S. 319 (1989),

stating that a complaint is frivolous “where it lacks an arguable basis either in law or

fact.” 490 U.S. at 325.

       A plaintiff proceeding under § 1983 seeking damages “for allegedly



                                              2
unconstitutional conviction or imprisonment, or for other harm caused by actions whose

unlawfulness would render a conviction or sentence invalid,” must demonstrate that the

“conviction or sentence has been reversed on direct appeal, expunged by executive order,

declared invalid by a state tribunal authorized to make such determination, or called into

question by a federal court’s issuance of a writ of habeas corpus.” Heck v. Humphrey,

512 U.S. 477, 486-87 (1994). “[If] a judgment in favor of the plaintiff would necessarily

imply the invalidity of his conviction or sentence . . . the complaint must be dismissed

unless the plaintiff can demonstrate that the conviction or sentence has already been

invalidated.” Id. at 487.

       We agree with the District Court that the relief Greene seeks would necessarily

imply the invalidity of his conviction. Because Greene has not demonstrated that he

successfully challenged his conviction, his complaint is barred by Heck. Accordingly,

Greene’s complaint “lacks an arguable basis [] in law,” Neitzke, 490 U.S. at 325, and we

will dismiss it pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).1




       1
         By Order of the Court entered February 3, 2009, we advised Greene that the
District Court denied his pending motion for consideration as moot and that, should he
wish to appeal that decision, he must file an amended notice of appeal within the time
prescribed by Fed. R. App. P. 4(a)(4)(B). That period expired on February 4, 2009. See
Fed. R. App. P. 4(a)(1)(A). Because Greene did not file an amended notice of appeal
until after February 4, 2009, we will not address his appeal of the denial of his motion to
reconsider.

                                             3
