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


2-28-2007

Muhammad El Ali v. Vitti
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4377




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Recommended Citation
"Muhammad El Ali v. Vitti" (2007). 2007 Decisions. Paper 1558.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1558


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DLD-103                                                   NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT


                                    No. 05-4377


                        DONALD MUHAMMAD EL ALI,
                                      Appellant

                                         v.

               LOUIS P. VITTI, Esquire, in his official and private
              capacity; LESLIE J. CARSON, JR., Esquire, in his/her
         official and private capacity; NATIONAL CITY MORTGAGE
       CORPORATION, f/k/a Altegra Credit Co; THE PHILADELPHIA
   SHERIFF DEPARTMENT; UNKNOWN ACTORS: JOHN AND JANE DOE;
       MATTHEW CARRAFIELLO, Judge, The Court of Common Pleas
        of Philadelphia; R. BARCLAY SURRICK, Judge of the District
                   Court for the Eastern District of Pennsylvania


                  On Appeal From the United States District Court
                     For the Eastern District of Pennsylvania
                            (D.C. Civ. No. 05-cv-01823)
                   District Judge: Honorable Gene E. K. Pratter


          Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
                                  January 19, 2007


           Before: BARRY, AMBRO AND FISHER, CIRCUIT JUDGES

                            (Filed: February 28, 2007)


                                     OPINION


PER CURIAM
       Donald Muhammad El Ali, pro se, appeals an order of the United States District

Court for the Eastern District of Pennsylvania dismissing his petition for writ of habeas

corpus.

       In April 2005, Muhammad El Ali filed a petition seeking relief under 28 U.S.C. §

2241, claiming that: (1) he was ejected from his property located at 1517 Tasker Street in

Philadelphia, Pennsylvania, and unlawfully detained by the Philadelphia Sheriff’s

Department; (2) the Court of Common Pleas proceeded with a foreclosure action without

proper notice to him; and (3) the lawyers representing the foreclosing party committed

fraud by bringing an action on behalf of the Altegra Credit Company knowing that the

company has been dissolved for years. Muhammad El Ali sought an order enjoining the

state court action. Muhammad El Ali also filed a mandamus petition and request for a

restraining order accompanied by a “notice of removal for writ of habeas corpus,” seeking

to remove the state court foreclosure action and to restrain the state court “from any

further interference” with the foreclosure action.

       By order entered September 14, 2005, the District Court dismissed the habeas

petition with prejudice. The District Court determined that Muhammad El Ali, also

known as Donald Smith, had violated the pre-filing injunction order issued on February

4, 2005, in the case of Smith v. Litton Loan Servicing, LP, et al., Civ. No. 04-02846, by

submitting the habeas petition without proper leave of the Court.1 The District Court also


       1
        The pre-filing injunction is set forth in full in the District Court’s memorandum
opinion. The pre-filing injunction applied to Donald Smith, Donald A. Smith, Donald

                                             2
held that the habeas petition had no basis in law or fact because Muhammad El Ali was

not in custody and the matters alleged did not come under the purview of any habeas

corpus statute. The District Court noted that the habeas petition sought to avoid a

sheriff’s sale of the Tasker Street property and that the matter had been previously

litigated in Donald Smith ex rel. Donald Muhammad El Ali v. Altegra Credit Co., Civ. A.

No. 02-08221 (E.D. Pa. Sept. 22, 2004). Muhammad El Ali timely appealed.

       We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. This Court is

required to dismiss an in forma pauperis appeal if it is “frivolous.” 28 U.S.C. §

1915(e)(2)(B)(i). An appeal is frivolous where none of the legal points is arguable on its

merits. See Nietzke v. Williams, 490 U.S. 319, 325 (1989). Muhammad El Ali is not in

custody and his request for relief is not cognizable under § 2241. His appeal is frivolous,

therefore, and will be dismissed as such pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).

Appellant’s motion for stay pending appeal is denied.




Muhammad El Ali or Lisa Smith.

                                             3
