          GLD-087                                              NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT
                                   ___________

                                       No. 10-3092
                                       ___________

                                    EZZIE MCINTYRE,
                                                   Appellant

                                             v.

     COUNTY OF CENTRE; KAREN ARNOLD; Judge CHARLES BROWN, JR.
                ____________________________________

                       On Appeal from the United States District Court
                           for the Middle District of Pennsylvania
                                (D.C. Civil No. 09-cv-02014)
                         District Judge: Honorable Edwin M. Kosik
                        ____________________________________

           Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
           or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                     January 13, 2011
              Before: AMBRO, CHAGARES and NYGAARD, Circuit Judges

                             (Opinion filed: February 11, 2011)
                                         _________

                                         OPINION
                                         _________

PER CURIAM

          Ezzie McIntyre appeals pro se from the dismissal of his amended complaint and

denial of his motion for reconsideration. For the following reasons, we will summarily

affirm.

                                             I.
       On April 12, 1999, McIntyre pled guilty to robbery and was sentenced to a

mandatory minimum of five to ten years of incarceration. In March 2000, he filed a

petition seeking post-conviction relief, asserting that his plea was invalid. The PCRA

court appointed Amy Burd to represent McIntyre but, due to her failure to amend

McIntyre’s petition or file a brief on his behalf, the proceeding was delayed. McIntyre

received a new attorney in April 2007, who successfully litigated McIntyre’s petition.

On December 13, 2007, the PCRA court permitted McIntyre to withdraw his plea. He

thereafter entered a new guilty plea and was sentenced to three-and-a-half to seven years

incarceration, with credit given for the time already served. 1

       On October 15, 2009, McIntyre filed his pro se complaint, pursuant to 42 U.S.C. §

1983, against Centre County; Karen Arnold, the assistant district attorney who prosecuted

his case; and Judge Charles Brown, Jr., the judge who sentenced him. He subsequently

amended his complaint, adding as defendants Ronald McGlaughlin, the attorney

appointed to represent him at his initial sentencing, and Burd. 2

       Although it is not entirely clear from McIntyre’s filings, it appears that Brown,

Arnold, and McGlaughlin all believed that 42 Pa. Cons. Stat. Ann. § 9712, which

imposes a mandatory minimum sentence of five years on a person who visibly possesses

a firearm during the commission of a crime of violence, applied to McIntyre even though

       1
         Although McIntyre completed his sentence on the robbery offense, a search of public
       records reveals that he was again incarcerated after pleading guilty to a February 2008
       assault.
       2
        Since the amended complaint suggested that McIntyre sought damages from
       McGlaughlin and Burd, the District Court construed it as adding those two individuals as
       defendants. We will do the same.


                                               2
it did not. It therefore appears that McIntyre’s plea was invalid because he had been

misinformed as to the range of permissible sentences applicable to his case. According to

McIntyre, by the time the error was corrected, he had served almost nine years on the

initial improper sentence. He therefore sought monetary damages as a result of his

“illegal plea,” “illegal sentence,” and McGlaughlin and Burd’s ineffective assistance.

       The District Court dismissed McIntyre’s amended complaint pursuant to 28

U.S.C. § 1915(e)(2)(B). The District Court first concluded that the claims were likely

barred by Heck v. Humphrey, 512 U.S. 477 (1994), because “any award would seemingly

imply the invalidity of [McIntyre’s] conviction and sentence on the same underlying

robbery charges.” Regardless, the District Court found that the suit was subject to

dismissal because none of the individual defendants was amenable to a § 1983 suit for

damages. 3 McIntyre filed a timely motion for reconsideration, which District Court

denied. McIntyre then timely appealed.

                                                       II.

       The District Court possessed jurisdiction over this action pursuant to 28 U.S.C. §§

1331 & 1343. Our jurisdiction arises under 28 U.S.C. § 1291. Since McIntyre’s timely

appeal from the denial of his motion for reconsideration “brings up the underlying

judgment for review,” we will review the District Court dismissal of the amended

complaint as well as its denial of the motion for reconsideration. N. River Ins. Co. v.

CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995). We may summarily affirm

if no substantial question is presented by the appeal, see 3d Cir. LAR 27.4; 3d Cir. IOP

       3
           The District Court did not specifically address Centre County’s liability.


                                                   3
10.6, and may affirm on any ground supported by the record. Berardi v. Swanson Mem’l

Lodge No. 48, 920 F.2d 198, 201-02 (3d Cir. 1990).

       We doubt the correctness of the District Court’s conclusion that McIntyre’s claims

are barred by Heck, since a damages award for the excess amount of time McIntyre

served on his initial improper sentence does not necessarily imply the invalidity of his

subsequent conviction and sentence. However, we will nevertheless summarily affirm

because the individual defendants are not amenable to suit under § 1983 and McIntyre

has failed to state a claim against Centre County.

       Brown and Arnold are entitled to absolute immunity because McIntyre seeks

damages from them based upon actions taken by Brown in his judicial capacity and by

Arnold while she was acting as the Commonwealth’s advocate in a criminal proceeding.

See Donahue v. Gavin, 280 F.3d 371, 377 n.15 (3d Cir. 2002) (“[A] prosecutor is

absolutely immune [from a § 1983 suit seeking damages] when acting as an advocate in

judicial proceedings.”); Gallas v. Supreme Court of Pa., 211 F.3d 760, 768 (3d Cir. 2000)

(“[J]udges are immune from suit under section 1983 for monetary damages arising from

their judicial acts.”). McGlaughlin and Burd are likewise not subject to § 1983 liability

because they are not state actors. See Black v. Bayer, 672 F.2d 309, 314 (3d Cir. 1982)

(court appointed defense counsel in criminal proceedings does not act under color of state

law), abrogation on other grounds recognized by, D.R. ex rel. L.R. v. Middle Bucks Area

Vocational Technical Sch., 972 F.2d 1364, 1368 n.7 (3d Cir. 1992); see also Polk Cnty.

v. Dodson, 454 U.S. 312, 324-25 (1981).

       Finally, McIntyre fails to state a claim against Centre County because he did not


                                             4
allege that the constitutional violations of which he complains stemmed from an official

policy or custom of the county. See Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S.

658, 694 (1978). Instead, McIntyre’s amended complaint and his other submissions

illustrate that he seeks to impose respondeat superior liability on Centre County. Such a

claim is not cognizable under § 1983. Id. (“[A] local government may not be sued under

§ 1983 for an injury inflicted solely by its employees or agents.”). Since McIntyre’s §

1983 lawsuit clearly fails against all of the defendants, he has not presented a substantial

question for review. We will therefore summarily affirm the dismissal of his amended

complaint. 4




       4
         We will also affirm the District Court’s denial of the motion for reconsideration. In that
       motion, McIntyre, in response to the District Court’s observation that a legal malpractice
       suit was the proper remedy against his attorneys, explained that he had in fact filed such a
       suit but that the state court – incorrectly in his opinion – dismissed the suit as untimely
       and frivolous. He also specified which of his constitutional rights he believed to have
       been violated by the defendants’ conduct, adding allegations that his sentence was the
       product of race discrimination. The District Court correctly recognized that it was
       without authority to review the state court’s rulings and that McIntyre’s additional
       allegations did not affect its prior ruling.


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