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


1-4-2006

Banda v. NJ Dept Mental
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4142




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Recommended Citation
"Banda v. NJ Dept Mental" (2006). 2006 Decisions. Paper 1793.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1793


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HPS-12                                               NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT

                                   NO. 05-4142
                                ________________

                              JOHN M. BANDA, JR.,
                                       Appellant

                                         vs.

NEW JERSEY DEPARTMENT OF MENTAL HEALTH SERVICES; NEW JERSEY
SPECIAL TREATMENT UNIT ANNEX; ALICIA A. CAPUTO; In her official &
individual capacities; GREGORY GAMBERKE, In his official & individual capacities;
MANUEL ISEK, In his official & individual capacities; ELENI MARCANTONIS, in her
official & individual capacities; MICHAEL R. MCALLISTER, In his official &
individual capacities; DEON BULLARD, In his official & individual capacities;
CAROLE LESTER, In his official & individual capacities; BENJAMIN LIBERATORE,
In his official & Individual capacities; LUIS ZIEGUER, In his official & Individual
capacities; RONALD "RUSTY & QUO" REEVES, In his official & individual
capacities; HERBERT KALDANI, In his official & individual capacities.
                        ____________________________________

                   On Appeal From the United States District Court
                             For the District of New Jersey
                              (D.C. Civ. No. 05-cv-02622)
                     District Judge: Honorable William J. Martini
                   _______________________________________

         Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
     BEFORE: CHIEF JUDGE SCIRICA, WEIS and GARTH, CIRCUIT JUDGES

                                 (Filed: January 4, 2006)

                                  _____________

                                     OPINION
                                  _____________

                                         1
PER CURIAM.

              John M. Banda, Jr. appeals the order of the United States District Court for

the District of New Jersey dismissing his civil rights action.

              Banda was civilly committed pursuant to an order of involuntary

commitment under the New Jersey Sexually Violent Predator Act and is currently a

resident of the Special Treatment Unit Annex (“STU Annex”) at Avenel, New Jersey. He

filed this Complaint pursuant to 42 U.S.C. § 1983 against the New Jersey Department of

Human Services, the New Jersey Department of Mental Health Services, the STU Annex,

and eleven individual mental health professionals involved in his treatment and/or

evaluation. In the Complaint, Banda alleges that his annual review report contained false

and/or fraudulent allegations “based on altered reports, trump[ed]-up groundless theories

and opinions from unfactual hearsay, suppressed/dismissed evidence and statements and

non-sex crime convictions” and that each of the defendants had either participated in or

sanctioned malpractice, deliberate mis-diagnosis, and professional misconduct. As relief,

Banda sought unrestricted release from confinement,1 expungement of his court records,




   1
               On July 5, 2005, Banda sent a letter to the United States District Court for
the District of New Jersey in Trenton, indicating that he wished to continue to pursue his
Complaint “minus the relief for immediate and/or early release.” Because Banda never
filed nor sought leave to file an Amended Complaint, and because the District Court
reached this claim for relief in its Opinion, we consider the issue to be before us at this
time, and therefore address it herein.

                                              2
and $310 million in damages. After granting Banda in forma pauperis status, the District

Court dismissed his Complaint without prejudice under 28 U.S.C. § 1915(e)(2)(B)(ii) as

premature and for failure to state a claim upon which relief may be granted.

              Banda timely filed a notice of appeal. We have appellate jurisdiction

pursuant to 28 U.S.C. § 1291. Having granted Banda leave to proceed in forma pauperis

on appeal, we must now determine whether Banda’s appeal should be dismissed pursuant

to 28 U.S.C. § 1915(e)(2)(B). An appeal may be dismissed as frivolous if it has no

arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989).

               The District Court concluded that Banda’s section 1983 action essentially

alleged that he was involuntarily committed, in violation of his civil rights, based on false

information and reports, non-sex-related convictions, and deliberate mis-diagnoses by

defendants. The District Court properly held that Banda’s claim for immediate release

must be sought through a petition for a writ of habeas corpus. See Preiser v. Rodriguez,

411 U.S. 475, 500 (1973); Brock v. Weston, 31 F.3d 887, 890 (9th Cir. 1994); Souder v.

McGuire, 516 F.2d 820, 823 (3d Cir. 1975). With respect to his claim for damages, the

District Court held that the claim was not cognizable under 42 U.S.C. § 1983 because a

favorable outcome would necessarily imply the invalidity of his confinement. See

Wilkinson v. Dotson, ___ U.S. ___, 125 S. Ct. 1242, 1247-48 (2005); Heck v.

Humphrey, 512 U.S. 477 (1994). We agree. Accordingly, the District Court properly




                                              3
dismissed the Complaint without prejudice.2 Banda may bring a section 1983 action if he

is ultimately successful in invalidating his civil commitment. See Fottler v. United States,

73 F.3d 1064, 1065-66 (10th Cir. 1996).

              For the foregoing reasons, Banda’s appeal will be dismissed under

28 U.S.C. § 1915(e)(2)(B) as legally frivolous.




   2
                The District Court dismissed with prejudice Banda’s claims for damages
against the New Jersey Department of Human Services, the New Jersey Department of
Mental Health Services, the STU Annex, and each of the state officers and agents acting
in their official capacities, holding that the Eleventh Amendment bars suits for damages
in federal court against states and their agencies, departments, and officers. Because we
agree that the District Court properly dismissed the Complaint without prejudice for
failure to state a claim at the present time, we do not reach the issue of Eleventh
Amendment immunity.

                                             4
