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


11-7-2007

Jackman v. Smith
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2726




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Recommended Citation
"Jackman v. Smith" (2007). 2007 Decisions. Paper 247.
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CLD-27                                                        NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 07-2726


                            DONALD G. JACKMAN, JR.,
                                            Appellant

                                           v.

      PHILIP SMITH; JOHN SHARP; BRADLY SWIM; DANIAL POWERS;
    WILLIAM CRAIG; WILLIAM PARKS; KENNETH WERSTAK; G. LEON;
    DANIAL L. TOFT; MICHAEL REINER; MARGARET E. PICKING; JASON
   WICK; JOSEPH C. LUND, SR.; MARK MURRAY; LOUIS J. WEIRS; KEVIN
   MCCLINSEY; KATHY KLONTZ; ALBERT FRANCIS WESSEL; DOUGLAS
  SMITHER; PA STATE TROOPER SHAFER; PA STATE TROOPER MICHAEL;
     CHIEF JUDGE MAURICE B. COHILL, JR.; SUE HAGGERTY; LAWSON
BURNSTEIN, M.D. P.C.; TONY KELLER; SHERYLE L. LONG; EFREM M. GRAIL;
     MARKETA SIMS; CAROLE MCMILLEN; MARK BOWMAN; ANDREW
WEIGAND; DONNA WEIGAND; PAT SARNESE; MRS. SARNESE; JOHN E. SHEA;
 JOHN P. JOYCE; DENNIS M. LORMEL; THOMAS G. NOSCHESE; JEFFREY B.
KILLEEN; KEVIN P. DEEGAN; LARRY S. KLUMB; SEAN S. BURNS; RALPH W.
  BRUMLEY; NORMAN R. MIHM; EDWARD V. MATUNE; RALPH W. KUSH;
 WILLIAM PARKS; STEVEN N. BIELICH; DANIAL G. NEWMAN; MICHAEL E.
   ALBERT; MICHAEL J. MCKEOWN; WILLIAM L. ALCORN, JR.; BRUCE T.
                     RUPERT; ROBERT D. BERINGER


                    On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                              (D.C. Civil No. 05-cv-00215E)
                    District Judge: Honorable William W. Caldwell


         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
                                   October 25, 2007

              Before: AMBRO, FUENTES and JORDAN, Circuit Judges
                            (Opinion filed: November 7, 2007)


                                         OPINION


PER CURIAM

       Donald G. Jackman, Jr., proceeding pro se, appeals from the May 30, 2007 order

of the United States District Court for the Western District of Pennsylvania granting

Appellees’ Rule 12(b)(6) motions for dismissal. We will dismiss the appeal pursuant to

28 U.S.C. § 1915(e)(2). See LAR 27.4 and I.O.P. 10.6.

       On April 12, 2000, a grand jury in the Western District of Pennsylvania indicted

Jackman for being a felon in possession of firearms, in violation of 18 U.S.C. §§

922(g)(1) and 924(e)(1), and for possessing an unregistered destructive device, in

violation of 26 U.S.C. § 5681(d). On February 14, 2002, after a jury trial before U.S.

District Judge Maurice B. Cohill, Jr., Jackman was found guilty of possessing an

unregistered destructive device. The next day, he pleaded guilty to the remaining charge.

On September 17, 2002, Judge Cohill sentenced Jackman to 120 months of

imprisonment for violating 26 U.S.C. § 5681(d), and to 262 months of imprisonment for

violating 18 U.S.C. §§ 922(g)(1) and 924(e)(1), both terms to be served concurrently.

The Third Circuit affirmed Jackman’s conviction on July 30, 2003, and the U.S. Supreme

Court declined to issue a writ of certiorari. In July 2005, Jackman filed the present civil

rights action against 50-plus defendants who were in some way connected with the


                                              2
investigation leading to his arrest, his actual arrest, and/or his prosecution and conviction.

       Over Jackman’s objections, on May 30, 2007, the District Court granted the

defendants’ Rule 12(b)(6) motions to dismiss pursuant to the Magistrate Judge’s

recommendations. Jackman filed a timely notice of appeal to this court, and we have

jurisdiction pursuant to 28 U.S.C. § 1291, and exercise plenary review of a dismissal for

failure to state a claim. Angstadt v. Midd-West Sch. Dist., 377 F.3d 338, 342 (3d Cir.

2004). Having granted Jackman leave to proceed in forma pauperis, we must now

determine whether his appeal should be dismissed as lacking an arguable basis in law or

fact pursuant to 28 U.S.C. § 1915. See Neitzke v. Williams, 490 U.S. 319, 325 (1989).

       Although Jackman attempts to invoke many federal statutes,1 the Magistrate Judge

correctly determined that his complaint was appropriately considered a Bivens action.2

As the Magistrate Judge assessed, there are a myriad of proper bases for dismissing

Jackman’s particular allegations. The entire complaint is flawed, however, because none

of the claims was timely filed.3


       1
              We note that Jackman specifically stated that he was not bringing this
action under 28 U.S.C. § 2255.
       2
              Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971), creates a cause of action which is the federal equivalent of the §
1983 action against state actors, and lies where the defendant has violated the plaintiff’s
rights under color of federal law. See Brown v. Philip Morris Inc., 250 F.3d 789, 800 (3d
Cir. 2001).
       3
              Under the so-called “Third Circuit Rule” a defendant may assert a statute of
limitation defense in a Rule 12(b)(6) motion “if the time alleged in the statement of a
claim shows that the cause of action has not been brought within the statute of
limitations.” Robinson v. Johnson, 313 F.3d 128, 135 (3d Cir. 2002) (internal citation

                                              3
       The statute of limitation for claims arising under § 1983 is the state statute of

limitation for personal injury actions, which in Pennsylvania is two years. Garvin v. City

of Phila., 354 F.3d 215, 220 (3d Cir. 2003); 42 PA. CONS. STAT. ANN. § 5524. Federal

law determines when a cause of action for constitutional claims accrues, Genty v.

Resolution Trust Corp., 937 F.2d 899, 919 (3d Cir. 1991), and a claim accrues when the

plaintiff knows or has reason to know of the injury which is the basis of the action,

Sameric Corp. of Del. v. City of Phila., 142 F.3d 582, 599 (3d Cir. 1998). See also

Wallace v. Kato, 127 S. Ct. 1091, 1095 (2007) (finding that the accrual date of a § 1983

action is “when the plaintiff can file suit and obtain relief”) (internal citation omitted).

       Jackman’s claims all arise from the investigation leading up to his arrest, his arrest,

the search of his car and house immediately after his arrest, his pre-trial detention, and his

prosecution and conviction. Federal authorities began investigating his activities in 1999,

he was arrested and his house and car were searched in March 2000, he was tried in

February 2002, and he was sentenced in September 2002. Thus—even assuming that for

some reason Jackman had no reason to know of the alleged violations concerning the

investigation and his arrest until he was sentenced—September 2004 is the latest that any

allegations of civil rights violations regarding the events leading up to and including his

conviction and sentencing could have been timely filed. Accordingly, Jackman’s




omitted).

                                               4
complaint, filed in July 2005, is time-barred, and his appeal lacks any arguable basis.4

       Accordingly, we will dismiss Jackman’s appeal pursuant to 28 U.S.C. §

1915(e)(2)(B).




       4
               We also agree with the Magistrate Judge’s other bases for recommending
dismissal of Jackman’s claims, as many of the defendants are, for example, immune from
suit, did not act under color of federal law, or were not served with the complaint.
Moreover, as the Magistrate Judge assessed, many of the claims are barred under Heck v.
Humphrey, 512 U.S. 477 (1994). Finally, as the Magistrate Judge determined in his
March 26, 2007 memorandum and order, Jackman’s allegations of a conspiracy between
the defendants do not meet Federal Rule of Civil Procedure 8(a)’s pleading standards.

                                             5
