                                              NOT PRECEDENTIAL
                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 17-2293
                                      ____________

                               JOY EBUZOR-ONAYEMI,
                                                Appellant

                                             v.

                 UNION COUNTY POLICE DEPARTMENT; UNION
                   COUNTY PROSECUTOR’S OFFICE; MEGHAN
                  TOMLINSON, Union County Prosecutor; SHAWN
                   BARNES, Union County Prosecutor; MOSHOOD
                  OLUSHEKUN, Union County Employee; OFFICER
                   DANIEL GALLAGHER; As-Yet-Known, Present
                      and Former Union County Police Officers
                      __________________________________

                     On Appeal from the United States District Court
                              for the District of New Jersey
                             (D.C. Civ. No. 2-16-cv-01869)
                      District Judge: Honorable William J. Martini
                       __________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   March 16, 2018

               Before: SHWARTZ, KRAUSE and FISHER, Circuit Judges

                               (Opinion filed: June 5, 2018)
                                     ____________

                                        OPINION*
                                      ____________

*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5. 7 does not
constitute binding precedent.
PER CURIAM



       Joy Ebuzor-Onayemi appeals pro se from an order of the District Court dismissing

her complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons that

follow, we will affirm.

       Ebuzor-Onayemi was convicted following a jury trial in the Union County, New

Jersey Superior Court of third-degree burglary, in violation of N.J. Stat. Ann. § 2C:18-2,

and fourth-degree falsification of medical care records in order to deceive or mislead, in

violation of N.J. Stat. Ann. § 2C:21-4.1. She filed a motion for a new trial contending that

she had discovered documents that raised questions about the credibility of her former

boyfriend, Moshood Olushekun, who had testified against her at trial. The trial judge

denied the motion and sentenced Ebuzor-Onayemi to a three-year term of probation.

       The Appellate Division affirmed the criminal judgment, see State v. Ebuzor-

Onayemi, 2016 WL 3563190 (N.J. Super. Ct., App. Div. July 1, 2016) (per curiam). The

state appeals court explained that Ebuzor-Onayemi was a former employee of Our House,

Inc., a non-profit organization that provides services to developmentally disabled

individuals, and that she worked at the Windsor Way Group Home in Berkeley Heights.

Id. at *1. Our House staff members supervise and assist the residents, including

administering medications, and, as part of her duties, Ebuzor-Onayemi kept records of

the medications and health assistance that she provided to the residents of Windsor Way.

Id. In February 2011, an audit of the medical records revealed errors she had made, and

she was advised that she would be subject to disciplinary action and that a counseling

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meeting would be scheduled. Id. The day before that meeting, a supervisor discovered

that the medical records she had prepared had been altered. Id. At the meeting on April

8, 2011, Ebuzor-Onayemi was presented with copies of the falsified medical records and

a confrontation ensued. Ebuzor-Onayemi was fired and directed to return her keys. Id.

At trial, the State called Olushekun as a witness and he testified that, on April 8, 2011,

Ebuzor-Onayemi came to see him at work and told him that she had been fired; that she

had turned over the wrong key when asked to turn in her keys; and that she had gone

back to the group home and taken some documents relevant to her termination. Id.

Ebuzor-Onayemi gave Olushekun a black shopping bag that contained the documents and

asked him to hold the bag for her. Id. Eventually, Olushekun turned this evidence over

to police. Id. The State also introduced two keys at trial; the State contended that

Ebuzor-Onayemi used one of these keys to gain entry illegally. Ebuzor-Onayemi took

the stand at trial and denied taking the medical records and denied entering Windsor Way

after she was terminated.

       On April 1, 2016, Ebuzor-Onayemi, with the assistance of counsel, filed a civil

rights action, 42 U.S.C. § 1983, in the United States District Court for the District of New

Jersey, against Olushekun, the Union County Prosecutor’s Office and Assistant

Prosecutor Meghan Tomlinson, Assistant Prosecutor Shawn Barnes, and Detective

Daniel Gallagher in their individual capacities, for damages in connection with her

prosecution and conviction for burglary and falsification of medical care records.

Specifically, Ebuzor-Onayemi claimed that the defendants falsified evidence and

conspired against her in order to obtain a conviction. She alleged that Olushekun never

                                              3
had possession of the keys and so he could not have provided them to police, as they had

contended. Ebuzor-Onayemi asserted in her complaint a § 1983 violation of due process

in connection with fabricated evidence (Count I); a violation of 42 U.S.C. § 1985(3)

(Count II); a § 1983 violation for conspiracy (Count III); failure to intervene (Count IV);

civil conspiracy (Count V); intentional infliction of emotional distress (Count VI); and

respondeat superior liability (Count VII). The Union County defendants moved to

dismiss the complaint and Olushekun, proceeding pro se, answered the complaint. In her

brief in opposition to dismissal, Ebuzor-Onayemi agreed to dismiss Counts II, IV, V, and

VII.

       In an order entered on April 12, 2017, the District Court dismissed Counts II, IV,

V, and VII without prejudice, pursuant to Ebuzor-Onayemi’s request, and dismissed with

prejudice all counts against the Union County Prosecutor’s Office pursuant to the

Eleventh Amendment.1 The Court then dismissed Counts I and III on the basis of Heck

v. Humphrey, 512 U.S. 477 (1994). The Court reasoned that a judgment in favor of

Ebuzor-Onayemi on these counts would necessarily imply the invalidity of her

convictions and thus could not proceed at this time. The Court dismissed Count VI as

barred by the notice provisions of the New Jersey Tort Claims Act. Last, although

Olushekun did not move to dismiss the complaint, the Court sua sponte dismissed him




1
  The Eleventh Amendment immunizes States and their agencies from suits for damages
in federal court, see Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 100-
02 (1984).
                                             4
from the civil action because the deficiencies in Ebuzor-Onayemi’s complaint applied

equally to him.

       Ebuzor-Onayemi appeals pro se. We have jurisdiction under 28 U.S.C. § 1291.

We exercise plenary review over a Rule 12(b)(6) dismissal, see Weston v. Pennsylvania,

251 F.3d 420, 425 (3d Cir. 2001). In her pro se brief on appeal, Ebuzor-Onayemi has

argued the merits of her malicious prosecution and fabrication of evidence claim against

defendants Olushekun, Tomlinson, Barnes, and Gallagher, Appellant’s Informal Brief, at

3, 6; she has failed to address, however, the District Court’s application of Heck v.

Humphrey to Counts I and III of her complaint.2

       We will affirm. The District Court correctly dismissed Counts I and III of Ebuzor-

Onayemi’s complaint pursuant to Rule 12(b)(6) because they are barred by Heck’s

favorable termination rule. Section 1983 actions are “not appropriate vehicles for

challenging the validity of outstanding criminal judgments.” Heck, 512 U.S. at 486.

Ebuzor-Onayemi claimed that the defendants pursued her prosecution maliciously by

using false evidence and that they conspired to obtain a conviction to support their

prosecution. Heck holds that, where success in a § 1983 action would necessarily imply

the invalidity of a conviction or sentence, an individual’s suit for damages is barred



2
 Ebuzor-Onayemi does not challenge in her pro se brief the District Court’s
determination that her intentional infliction of emotional distress claim is barred by the
notice provisions of the New Jersey Tort Claims Act. Accordingly, the issue is waived.
See Laborers’ Int’l Union of North America, AFL-CIO v. Foster Wheeler Corp., 26 F.3d
375, 398 (3d Cir. 1994) (“An issue is waived unless a party raises it in [the] opening
brief[.]”).

                                             5
unless she can demonstrate that her conviction or sentence has been invalidated. 512

U.S. at 486-87. Heck precludes § 1983 claims like Ebuzor-Onayemi’s whose success

“would necessarily imply the invalidity” of a conviction or sentence that has not already

been “reversed on direct appeal, expunged by executive order, declared invalid by a state

tribunal authorized to make such a determination, or called into question by a federal

court’s issuance of a writ of habeas corpus[.]” Id. at 487. See also Wilkinson v. Dotson,

544 U.S. 74, 81-82 (2005). Ebuzor-Onayemi’s criminal judgment was affirmed by the

state appeals court, and, although she contends that she is now challenging that

conviction in a state post-conviction petition, Appellant’s Informal Brief, at 5, she does

not contend that her post-conviction petition has been successful. Accordingly, unless

and until she succeeds in getting her conviction invalidated, Ebuzor-Onayemi’s suit is

barred in federal court and was properly dismissed without prejudice.3 We uphold the

District Court’s authority to sua sponte dismiss Counts I and III of the complaint against

nonmoving pro se defendant Olushekun, under the circumstances presented here.

       For the foregoing reasons, we will affirm the order of the District Court dismissing

the complaint.




3
 A § 1983 claim based on an allegedly unconstitutional conviction or sentence does not
accrue until the invalidation of that conviction or sentence. Wallace v. Kato, 549 U.S.
384, 393 (2007). For that reason, when a § 1983 claim is dismissed under Heck, the
dismissal is without prejudice. See Fottler v. United States, 73 F.3d 1064, 1065–66 (10th
Cir.1996).

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