GLD-339                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 13-2293
                                      ___________

                             JERRY A. CHAMBERS, SR.,
                                           Appellant

                                            v.

               RENEE C. HUGHES; CHARLES P. MIRARCHI, III, ;
            NORMAN SCOTT; JULES EPSTEIN; EARL G. KAUFFMAN;
                               IAN HOOD
                  ____________________________________

                    On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                             (D.C. Civil No. 2-13-cv-02017)
                     District Judge: Honorable Gene E. K. Pratter
                     ____________________________________

        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
                                    July 18, 2013

             Before: FUENTES, FISHER and VANASKIE, Circuit Judges

                              (Opinion filed: July 29, 2013)
                                       _________

                                       OPINION
                                       _________

PER CURIAM

      Jerry A. Chambers appeals from the District Court’s order dismissing his

complaint. For the following reasons, we will dismiss the appeal as frivolous.
                                                I.

       Chambers, a Pennsylvania prisoner, filed a pro se civil rights lawsuit pursuant to

42 U.S.C. § 1983. Chambers is seeking monetary damages stemming from an alleged

wrongful arrest and murder conviction in 2003 and 2005, respectively. The United States

District Court for the Eastern District of Pennsylvania granted Chambers’s in forma

pauperis (“IFP”) application and evaluated the complaint pursuant to 28 U.S.C. §

1915(e)(2). The District Court dismissed the case as frivolous and for failure to state a

claim. Chambers timely appealed and moves for us to appoint counsel for the appeal.

                                               II.

       We have jurisdiction under 28 U.S.C. § 1291, and we exercise plenary review over

the District Court’s dismissal. See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000).

To survive dismissal for failure to state a claim, a plaintiff’s complaint must “contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007)). We will dismiss the appeal as frivolous pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(i), as it lacks an arguable basis either in law or fact. See Neitzke v.

Williams, 490 U.S. 319, 325 (1989).

       The District Court correctly noted that Chambers’s claims are frivolous because

the defendants, which include the trial court judge, witnesses, and Chambers’s public

defender attorneys, cannot be sued under 42 U.S.C. § 1983. Specifically, judges are

immune from suit under § 1983 for monetary damages arising from their judicial acts, see
                                                2
Gallas v. Supreme Court of Pa., 211 F.3d 760,768 (3d Cir. 2000), and witnesses are

immune from suit with respect to any claim based on the witnesses’ testimony, see

McArdle v. Tronetti, 961 F.2d 1083, 1085 (3d Cir. 1992). Public defenders are not state

actors for § 1983 purposes because they are not acting under the color of state law when

performing the traditional functions as counsel to a defendant in a criminal proceeding.

See Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981).

       Furthermore, in order for a prisoner to recover damages under § 1983 where the

award would imply the invalidity of the conviction, he must prove that the conviction or

sentence has already been invalidated. See Heck v. Humprey, 512 U.S. 477, 486-87

(1994). Because Chambers’s conviction has not been invalidated, his claims are barred.

Chambers appears to argue that conflicting evidence was presented at his trial, but that is

a question for the fact finder, not this Court. Additionally, Chambers has incorrectly

attempted to use § 1983 to challenge his convictions when such challenges are only

cognizable in habeas proceedings after exhausting state remedies as required by 28

U.S.C. § 2254(b) and (c). See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973).

       For the reasons given, we agree with the District Court’s determination and we

will dismiss Chambers’s appeal as legally frivolous pursuant to 28 U.S.C. §

1915(e)(2)(B)(i). See Neitzke v. Williams, 490 U.S. 319, 325 (1989). Furthermore,

Chambers’s motion to appoint counsel is dismissed as moot.




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