                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-27-2009

Kenneth Deputy v. John Williams, et al
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3517




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BLD-97                                                            NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                       No. 08-3517
                                       ___________

                                 KENNETH T. DEPUTY,
                                                 Appellant

                                             v.

                  DEPUTY ATTY GENERAL JOHN WILLIAMS;
            JUDGE ROBERT B. YOUNG; JUSTICE CAROLYN BERGER;
             JUSTICE RANDY HOLLAND; JUSTICE JACK B. JACOBS
                    ____________________________________

                     On Appeal from the United States District Court
                               for the District of Delaware
                                 (D.C. No. 08-cv-00265)
                      District Judge: Honorable Sue L. Robinson
                      ____________________________________

         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
                                   February 5, 2009

              Before: McKEE, FISHER and CHAGARES, Circuit Judges.

                                 (Filed: March 27, 2009 )
                                        _________

                                        OPINION
                                        _________

PER CURIAM

       Kenneth Deputy appeals from the District Court’s order dismissing his complaint

as frivolous and for failure to state a claim upon which relief can be granted pursuant to
28 U.S.C. § 1915A. The District Court also denied Deputy’s motion for recusal and

declined to grant Deputy leave to file an amended complaint. Because we determine that

the appeal is lacking in arguable legal merit, we will dismiss it under 28 U.S.C.

§ 1915(e)(2)(B).

       In his complaint, Deputy alleged that the defendants violated his civil and

constitutional rights during habeas corpus proceedings he initiated in 1997. In particular,

Deputy alleged that the defendants engaged in conspiracy to interfere with civil rights in

violation of 42 U.S.C. § 1985; violated 42 U.S.C. § 1986 by neglecting to prevent and

aiding in wrongful acts that resulted in the denial of relief; violated the Fourth, Fifth,

Eighth and Fourteenth Amendments by concealing corrupt practices and the individuals

involved in the conspiracy; and forged and fabricated documents in violation of several

federal statutes. He sought injunctive and declaratory relief, as well as compensatory and

punitive damages. He also requested that the court order his release and make a

declaratory finding on whether his commitment for attempt to commit a crime was in

accordance with Delaware law.

       Before this Court, Deputy alleges that the District Court “incorrectly decide(d) the

facts in his case and misapplied applicable law.” In particular, he claims that his

commitment was “irregular” because the arrest warrant and complaint were “not filed or

processed by the Court as required by the Constitution.” He also states that he is entitled

to relief because “[c]ourt officials had to conspire and cover-up official misconduct by



                                               2
fellow colleagues” and that “the defendants are clearly of knowledge of the wrongs

conspired to be continually done to appellant.” He also alleges, without support, that all

defendants “acted in complete absence of all jurisdiction.” Finally, Deputy alleges that

Judge Robinson should have recused herself because of her involvement in a previous

habeas petition he filed.

       We have appellate jurisdiction over this appeal under 28 U.S.C. § 1291, and

review it for possible dismissal under 28 U.S.C. § 1915(e)(2)(B). An appeal must be

dismissed under 28 U.S.C. § 1915(e)(2)(B) if it has no arguable basis in law or fact.

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

       As the District Court correctly noted, Deputy’s claims fail from the outset because

all of the named defendants are protected by either judicial or prosecutorial immunity.

The named defendants are Judge Robert B. Young of the Superior Court of Delaware;

Justice Carolyn Berger, Justice Randy Holland, and Justice Jack Jacobs of the Delaware

Supreme Court; and Delaware Deputy Attorney General John Williams. Judicial

immunity is “immunity from suit, not just from ultimate assessment of damages” and is

only overcome in two circumstances. Mireles v. Waco, 502 U.S. 9, 11 (1991) (citing

Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). First, “a judge is not immune from

liability for nonjudicial actions, i.e., actions not taken in the judge's judicial capacity”;

second, “a judge is not immune for actions, though judicial in nature, taken in the

complete absence of all jurisdiction.” Id. (citing Forrester v. White, 484 U.S.219, 227-29



                                                3
(1988); Stump v. Sparkman, 435 U.S. 349 (1978); Bradley v. Fisher, 80 U.S. 335, 351

(1871)).

       Prosecutors are entitled to similar immunity from suit. In Imbler v. Pachtman, 424

U.S. 409 (1976), the Supreme Court held that “in light of the immunity historically

accorded prosecutors at common law, state prosecutors are absolutely immune from

liability under § 1983 for actions performed in a quasi-judicial role.” Light v. Haws, 472

F.3d 74, 77 (3d Cir. 2007) (citing Imbler, 424 U.S. at 427, 431). Actions shielded by

judicial immunity include “acts undertaken by a prosecutor in preparing for the initiation

of judicial proceedings or for trial, and which occur in the course of his role as an

advocate for the State[.]” Id. (quoting Yarris v. County of Delaware, 465 F.3d 129, 135

(3d Cir. 2006).1

       The District Court noted that Deputy fails to provide “more than labels and

conclusions and . . . formulaic recitation of the law” of judicial and prosecutorial

immunity. Deputy’s allegations against the judge and justices are based solely on their

denial of his petition for writ of habeas corpus. Likewise, Williams’ involvement is

limited to the motion he submitted asking the Supreme Court to affirm the decision of the

Superior Court denying Deputy’s petition for writ of habeas corpus. All of these actions


       1
        We note the recent Supreme Court decision of Van De Kamp v. Goldstein,
__S. Ct.__, 2009 WL 160430 (2009), which further broadened the scope of immunity for
state prosecutors. The Court concluded that prosecutors are entitled to absolute immunity
in respect to claims that their “supervision, training, or information-system management
was constitutionally inadequate.”

                                              4
are clearly within the scope of their respective judicial and prosecutorial duties, and thus

all defendants are immune from suit.

       The District Court also correctly identified that, to the extent Deputy attempts to

challenge his conviction and confinement, the sole federal remedy available is habeas

corpus. See Wright v. Cuyler, 624 F.2d 455, 457 (3d Cir. 1980) (citing Preiser v.

Rodriguez, 411 U.S. 475, 500 (1973). Moreover, in order to recover damages for

allegedly unconstitutional conviction or imprisonment, or for other harm caused by

actions whose unlawfulness would render a conviction or sentence invalid, a § 1983

plaintiff “‘must prove that the conviction or sentence has been reversed on direct appeal,

expunged by executive order, declared invalid by a state tribunal authorized to make such

determination, or called into question by a federal court's issuance of a writ of habeas

corpus.’” Gibson v. Superintendent, 411 F.3d 427, 435 (3d Cir. 2005) (quoting Heck v.

Humphrey, 512 U.S. 477, 486-487 (1994). At no point does Deputy make such a

showing. As a result, his complaint fails on this basis as well.

       The District Court also properly dismissed Deputy’s allegations that the defendants

committed forgery and fabricated documents. The federal criminal code does not contain

the statutes referred to by Deputy in his complaint. Furthermore, Deputy makes nothing

more than blanket assertions that such fabrication took place, and is required to make a

“showing” rather than a blanket assertion of entitlement to relief. Phillips v. County of




                                              5
Allegheny, 515 F.3d 224, 232 (3d Cir. 2008). The District Court properly dismissed these

claims.

       Finally, the District Court correctly denied Deputy’s motion for recusal.

According to 28 U.S.C. § 455(a), a judge must recuse himself “in any proceeding in

which his impartiality might reasonably be questioned.” Deputy’s recusal motion is based

solely on Judge Robinson’s involvement in a previous habeas petition that was denied.

However, “judicial rulings alone almost never constitute a valid basis for a bias or

partiality motion.” Liteky v. United States., 510 U.S. 540, 555 (1994) (citing United

States v. Grinnell Corp., 384 U.S. 563, 583 (1966)). As a result, the District Court

properly denied the motion.

       In conclusion, Deputy’s appeal is lacking in arguable legal merit, and we will

dismiss it pursuant to 28 U.S.C. § 1915(e)(2)(B). In light of our disposition, Deputy’s

motion for appointment of counsel is denied.




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