                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-28-2007

Nicholas v. Brooks
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4361




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007

Recommended Citation
"Nicholas v. Brooks" (2007). 2007 Decisions. Paper 1416.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1416


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
HLD-73                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 06-4361
                                   ________________

                               EDWARD J. NICHOLAS,
                                    Appellant

                                             v.

                          MARILYN BROOKS; JOHN DOE
                      ____________________________________

                    On Appeal From the United States District Court
                       For the Western District of Pennsylvania
                            (W.D. Pa. Civ. No. 06-cv-00098)
                     District Judge: Honorable Sean J. McLaughlin
                    _______________________________________

          Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
                                   March 9, 2007
         BEFORE: SCIRICA, Chief Judge, WEIS and GARTH, Circuit Judges
                              (Filed: March 28, 2007)
                            _______________________

                                      OPINION
                              _______________________

PER CURIAM.

             Edward J. Nicholas, a state prisoner proceeding pro se, appeals an order of

the United States District Court for the Western District of Pennsylvania dismissing his

civil rights complaint. We will dismiss his appeal pursuant to 28 U.S.C. § 1915(e)(2)(B).




                                            1
              On May 15, 1998, following a jury trial, Nicholas was convicted of

aggravated assault and acquitted of one count of robbery and two counts of criminal

conspiracy. He was sentenced to six and one-half years to twenty years in prison. In

May 2006, Nicholas filed a civil rights action under 42 U.S.C. § 1983 against the

superintendent of SCI-Albion, where he resides. His complaint alleges that the jury

found him not guilty of the aggravated assault charge and, thus, he is being held in

violation of due process. He requested that the court confirm his innocence and award

him millions of dollars in damages.1

              The Magistrate Judge recommended dismissal of the complaint pursuant to

28 U.S.C. § 1915(e)(2)(B) as barred by, among other theories, the favorable termination

rule announced in Heck v. Humphrey, 512 U.S. 477 (1994). The District Court affirmed

and adopted the Magistrate Judge’s report and recommendation. This appeal followed.

              We have jurisdiction pursuant to 28 U.S.C. § 1291. Nicholas has been

granted leave to proceed in forma pauperis on appeal. Because his appeal lacks arguable

merit, we will dismiss it pursuant to § 1915(e)(2)(B)(I).2 See Allah v. Seiverling, 229

F.3d 220, 223 (3d Cir. 2000).



              1
               He also appears to request a federal investigation of the defendant and her
alleged co-conspirators.
              2
                 Although the District Court dismissed the complaint without giving
Nicholas an opportunity to amend as required by Grayson v. Mayhew State Hosp., 293
F.3d 103 (3d Cir. 2003), we find no error because any amendment would have been
futile. See id. at 108.

                                             2
              According to the rule announced by the Supreme Court in Heck, when a

plaintiff brings a civil rights suit that would necessarily imply the invalidity of his

conviction or sentence, “the complaint must be dismissed unless the plaintiff can

demonstrate that the conviction or sentence has already been invalidated.” 512 U.S. at

487. The gravamen of Nicholas’ complaint is that his conviction and sentence for

aggravated assault is invalid because it conflicts with the jury’s putative verdict of not

guilty. However, Nicholas’s conviction has not been invalidated. See Nicholas v.

Pennsylvania, No. 06-3641(3d Cir. order entered January 31, 2007) (denying a certificate

of appealability for habeas petition). Thus the District Court was correct to dismiss the

suit.

              Accordingly, we will dismiss this appeal pursuant to 28 U.S.C.

§ 1915(e)(2)(B). Nicholas’s pending motion is denied.




                                               3
