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


4-12-2006

Lewis v. Trenton Pol Dept
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4733




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"Lewis v. Trenton Pol Dept" (2006). 2006 Decisions. Paper 1272.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1272


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Amended DPS-123                                       NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT

                                NO. 05-4733
                  ______________________________________

                            MALVERN L. LEWIS,
                                    Appellant

                                        v.

   CITY OF TRENTON POLICE DEPARTMENT; DOUGLAS PALMER, Mayor of
Trenton; JAMES GOLDEN, Police Director; JOHN P. SCHROEDER, Detective Trenton
       Police Department; ATTORNEY GENERAL OF NEW JERSEY; DANIEL
   GIAQUINTO, Mercer County’s Prosecutor’s Office; KIMBERLY LACKEN, Asst.
  Prosecutor; KATHLEEN PATRUCCI, Asst. Prosecutor; THOMAS MEIDT; PETER
VENIERO, Attorney General; JOHN FARMER, Attorney General; DAVID SAMPSON,
Attorney General; PETER HARVEY, Attorney General; GERALD BOSWELL, Defense
  Pool Attorney Mercer County P.D.; ANTHONY RADICE, Trenton Municipal Court
  P.D.; EWING TOWNSHIP POLICE DEPARTMENT; JOHN DOE, Ewing Township
Police Chief; ALVIN BRIDGES, Mayor Ewing Township; JOSEPH SMITH, Sgt. Ewing
Township Police Department; RICHARD SMITH, PTLM. Ewing Township Police Dept.,
PAUL T. KOENIG, JR., J.S.C.; MARIA SYPEK, J.S.C.; TRENTONIAN NEWSPAPER,
     INC.; TRENTON TIMES NEWSPAPER; LISA MEYER, Writer Trenton Times
   Newspaper, Inc.; LINDA STEIN, Writer Trenton Times Newspaper, Inc.; MERCER
COUNTY SHERIFF’S OFFICE; SAMUEL PLUMERI, JR., Sheriff Mercer County; C.J.
   WILLIAMS, Officer Mercer County Sheriff; NED SMITH, Capt. Detective Trenton
      Police Department; MICHAEL SALVATORE, Lt. Trenton Police Department;
  DOUGLAS RHINEHART, Juror; ALLEN HYMAN, Juror; VELDON HARRIS, Det.
   Mercer County Prosecutor’s Office; PETER WEREMIJENKO, Sgt. Trenton Police
 Department; E. GONZALEZ, Sgt. Trenton Police Department; RICHARD OSVAI, Det.
       Trenton Police Department; DOULAS MORELAND, PTLM. Trenton Police
  Department; ROBERT O’HARE, PTLM. Trenton Police Department; M. GOYDAN,
 Trenton Police Department; CHARLES A. DELEHEY; PAUL MEYER, Deputy Chief
    Trenton Police Department; R. TRAMONTANA, Sgt. Trenton Police Department;
 ALVIN R. CADLETT, Det. Trenton Police Department; JOHN P. GARKOWSKI, New
     Jersey State Police; THOMAS KEYES, Det. New Jersey State Police; RAAFAT
  AHMED, Dr. Office Mercer County Medical Examiner; DENNIS SCHUSTER, Det.
                              Trenton Police Department

                  ______________________________________
                     On Appeal From the United States District Court
                             For the District of New Jersey
                             (D.C. Civ. No. 04-cv-03240)
                          District Judge: Garrett E. Brown, Jr.
                     _______________________________________

            Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
                                    February 9, 2006

      BEFORE: ROTH, FUENTES and VAN ANTWERPEN, CIRCUIT JUDGES

                                  (Filed: April 12, 2006)
                                 ____________________

                                       OPINION
                               _______________________
PER CURIAM

       On July 7, 2005, Malvern Lewis, a state prisoner proceeding pro se, filed the

underlying complaint pursuant to 42 U.S.C. § 1983 in the United States District Court for

the District of New Jersey. In his complaint, Lewis alleged that the defendants violated

his constitutional rights during his 2000 arrest and 2003 trial for first-degree murder. By

order entered October 5, 2005, the District Court sua sponte dismissed Lewis’ complaint

pursuant to 28 U.S.C. § 1915(e)(2), finding his claims barred by either the applicable

statute of limitations or Heck v. Humphrey, 512 U.S. 447 (1994). This timely appeal

followed.

       This Court has jurisdiction pursuant to 28 U.S.C. § 1291. Because Lewis has been

granted leave to proceed in forma pauperis on appeal, this Court must dismiss his appeal

if it is “frivolous.” 28 U.S.C. § 1915(e)(2)(B). A frivolous appeal has no arguable basis

in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). After a careful review of
the record, we will dismiss this appeal as frivolous because Lewis’ claims lack an

arguable basis in law or fact.

       We agree with the District Court that, with the exception of his claims against the

Trentonian, the Trenton Times, Lisa Meyer, and Linda Stein (collectively, “the

newspaper defendants”), Lewis’ claims are either untimely or barred by Heck.1

Moreover, we have little difficulty concluding that Lewis’ claims against the newspaper

defendants were also subject to dismissal for frivolousness. Essential to an action under §

1983 are allegations that a person acting under color of state law engaged in conduct

depriving a plaintiff of his constitutional rights. See Angelico v. Lehigh Valley Hosp.,

Inc., 184 F.3d 268, 277 (3d Cir. 1999); Kost v. Kozakiewicz, 1 F.3d 176, 184 (3d Cir.

1993). Because the newspaper defendants are private parties and there is simply no

indication that they acted under color of state law, the District Court did not err in

dismissing Lewis’ claims against them.

       On appeal, Lewis argues that he is entitled to a class certification order. We need

not consider this contention because Lewis raises it for the first time on appeal. See

Harris v. City of Philadelphia, 35 F.3d 840, 845 (3d Cir. 1994); Frank v. Colt Indus., Inc.,

910 F.2d 90, 100 (3d Cir. 1990). In any event, Lewis, who is proceeding pro se, may not

represent a putative class of prisoners. Flymbo v. State Farm Fire & Cas. Co., 213 F.3d

1320, 1321 (10th Cir. 2000) (concluding that non-attorneys proceeding pro se cannot



       1
         Moreover, insofar as Lewis is attempting to challenge the fact or duration of his
conviction or sentence, a petition pursuant to 28 U.S.C. § 2254 is the exclusive method
for seeking relief. See Preiser v. Rodriguez, 411 U.S. 475, 488-90 (1973).
adequately represent a class); Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975)

(“[I]t is plain error to permit [an] imprisoned litigant who is unassisted by counsel to

represent his fellow inmates in a class action.”).

       Finally, we note that prior to dismissing Lewis’ complaint pursuant to § 1915(e),

the District Court did not grant him leave to amend or explicitly consider whether any

amendment would be futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d

Cir. 2002); Shane v. Fauver, 213 F.3d 113, 117 (3d Cir. 2000). However, it is clear that

any such amendment would indeed have been futile. Grayson, 293 F.3d at 108 (noting

that amendment “must be permitted . . . unless it would be inequitable or futile”).

       Having found no merit to this appeal, we will dismiss it pursuant to 28 U.S.C.

§ 1915(e)(2)(B). The request for a preliminary injunction is denied. See, e.g., Adams v.

Freedom Forge Corp.., 204 F.3d 475, 484 (3d Cir. 2000) (to obtain a preliminary

injunction a plaintiff must show both that he (1) is reasonably likely to succeed on the

merits, and (2) will likely experience irreparable harm without the injunction).
