                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-10-2005

Seville v. Martinez
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1057




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"Seville v. Martinez" (2005). 2005 Decisions. Paper 1222.
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DPS-155                                                      NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                     NO. 05-1057
                                  ________________

                                DOUGLAS SEVILLE,
                                                        Appellant
                                             v.

BENJAMIN A. MARTINEZ, Chairman, PA Board of Probation & Parole; KATHLEEN
 ZWERZYNA, Secretary, PA Board of Probation & Parole; KENNETH K. KYLER,
    Warden, SCI-Huntingdon; LINDA THOMPSON, Parole Agent/Supervisor,
    SCI-Huntingdon; ROGER LEIDY, Corrections Counselor, SCI-Huntingdon;
JOSEPH OGERSHOK, Corrections Counselor Unit Manager; HEARING EXAMINER
  CHARLES MITCHELL; ROBERT A. GREEVY, Assistant Counsel Parole Board;
                      BENSALEM POLICE OFFICER
                _______________________________________

                    On Appeal From the United States District Court
                        For the Middle District of Pennsylvania
                              (D.C. Civ. No. 04-cv-00659)
                       District Judge: Honorable Malcolm Muir
                    _______________________________________

                      Submitted Under 28 U.S.C. § 1915(e)(2)(B)
                                  March 10, 2005

                 Before: ROTH, BARRY and SMITH, Circuit Judges

                                 (Filed: May 10, 2005)
                              _______________________

                                     OPINION
                              _______________________
PER CURIAM

      Appellant Douglas Seville appeals from the District Court’s order granting

Defendants’ motions to dismiss. Seville filed a complaint pursuant to 42 U.S.C. § 1983
seeking monetary damages for an alleged unlawful arrest and sentence, as well as an

alleged injury from the filing of a false misconduct report. Because Seville’s appeal is

lacking in arguable legal merit, we will dismiss pursuant to 28 U.S.C. § 1915(e)(2)(B).

       We write only for the parties and, therefore, just briefly recite the facts. In 1973,

Seville was sentenced to serve twenty years imprisonment. He was released on parole

three times, each time violating the conditions of release and forfeiting the credit. While

on his third parole release, Seville absconded. He was arrested for the violation over

eleven years later. Seville claims that his term of imprisonment expired on August 19,

2003, but the Parole Board unlawfully set a new expiration date of August 14, 2010. He

also seeks monetary damages against several corrections staff for filing an alleged

fraudulent misconduct report, and against Police Officer Hart for damage to Seville’s car

and a warrantless arrest. The District Court granted the Defendants’ motion to dismiss

and Defendant Hart’s motion for change of venue. Seville then brought this appeal.

       We note initially that we are without jurisdiction to review the order transferring

venue with respect to Defendant Hart. See In re Federal-Mogul Global, Inc., 300 F.3d

368, 378 (3d Cir. 2002). An order transferring venue is not a final or appealable order.

Id.; 28 U.S.C. § 1291 (establishing federal appellate jurisdiction). Thus, the appeal with

respect to Defendant Hart is dismissed.

       We exercise plenary review over Seville’s remaining claims. See Marshall v.

Lauriault, 372 F.3d 175, 179 (3d Cir. 2004). With respect to Seville’s claim seeking

monetary damages for serving an unlawful sentence, he is barred by Heck v. Humphrey,

                                              2
512 U.S. 477, 486-87 (1994). Seville’s claim, if successful, would necessarily imply the

invalidity of his sentence. See Leamer v. Fauver, 288 F.3d 532, 542-44 (3d Cir. 2002).

Because he has not proven “that the conviction or sentence has been reversed . . . ,

expunged . . . , declared invalid . . . , or called into question by a federal court’s issuance

of a writ of habeas corpus,” his claim is not cognizable under § 1983. Heck, 512 U.S. at

486-87. See also Seville v. Kyler, 2004 WL 1615397, slip op. (E.D. Pa. July 15, 2004)

(denying habeas relief on petition alleging the service of an unlawful sentence).

       With respect to Seville’s claim that his due process rights were violated, the filing

of a fraudulent misconduct report and related disciplinary sanctions do not without more

violate due process. See Smith v. Mensinger, 293 F.3d 641, 653-54 (3d Cir. 2002).

However, Seville appears to claim that the false misconduct report caused injury to his

reputation. “[T]he proposition that reputation alone, apart from some more tangible

interests such as employment, is either ‘liberty’ or ‘property’ by itself sufficient to invoke

the . . . Due Process Clause” is simply not sustainable. Paul v. Davis, 424 U.S. 693, 701

(1976). Because Seville has not asserted any deprivation of a constitutionally protected

interest, his claim must fail. Additionally, because the complaint is frivolous, the District

Court properly dismissed Seville’s motion for a permanent injunction. Cf. Hankins v.

Temple Univ. (Health Scis. Ctr.), 829 F.2d 437, 438 n.1 (3d Cir. 1987) (stating a request

for a preliminary injunction is moot after a final order).




                                               3
      For the foregoing reasons, Seville’s claims are completely lacking in arguable

legal merit and accordingly, we will dismiss.




                                            4
