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


3-28-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4367




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Recommended Citation
"Nicholas v. Cross" (2007). 2007 Decisions. Paper 1414.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1414


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HLD-79                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 06-4367
                                   ________________

                               EDWARD J. NICHOLAS,
                                    Appellant

                                             v.

                                  MARY CROSS
                      ____________________________________

                    On Appeal From the United States District Court
                       For the Western District of Pennsylvania
                            (W.D. Pa. Civ. No. 06-cv-00201)
                     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 the

ensuing years, Nicholas has come to believe that he was acquitted of the aggravated

assault charge as well. In September 2006, Nicholas filed a civil rights action against

Mary Cross, a Magisterial District Judge in Dauphin County, where he was tried. The

claims in his complaint mostly relate to his contention that he is currently imprisoned for

a crime for which he was acquitted. In addition to this claim of imprisonment in violation

of due process, Nicholas, also under the heading “statement of claim,” alleges malicious

prosecution, negligence,“corruption of duties,” legal malpractice, and failure to release

records .

              The Magistrate Judge recommended dismissal of the complaint pursuant to

28 U.S.C. § 1915(e)(2)(B) as barred by judicial immunity. 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).1 See Allah v. Seiverling, 229

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


              1
                 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 v.

Humphrey, 512 U.S. 477 (1994), 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. Nicholas’s complaint against Judge Cross is based

on the putative fact that she sentenced him to prison despite his acquittal of all charges.

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, any claim that relies on the invalidity of his

aggravated assault conviction, such as his claim for false imprisonment or malicious

prosecution, is barred by Heck.

              To the extent that Nicholas makes claims that do not depend on the

invalidity of his conviction, they are barred by the doctrine of judicial immunity. A

judicial officer in the performance of his duties has absolute immunity from suit and will

not be liable for his judicial acts. Mireles v. Waco, 502 U.S. 9, 12 (1991). “A judge will

not be deprived of immunity because the action he took was in error, was done

maliciously, or was in excess of his authority; rather, he will be subject to liability only

when he has acted in the ‘clear absence of all jurisdiction.’” Stump v. Sparkman, 435 U.S.

349, 356-57 (1978) (citation omitted). Because the claims of legal malpractice,

negligence, and “corruption of duties,” relate to Cross’ performance of her judicial duties,

she is immune from suit.

                                               3
             Accordingly, we will dismiss this appeal pursuant to 28 U.S.C.

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




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