                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-31-2008

Gibbs v. Minner
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4674




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Recommended Citation
"Gibbs v. Minner" (2008). 2008 Decisions. Paper 1354.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1354


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                                                                     BLD-135
                                                           NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ___________

                                  NO. 07-4674
                                  ___________

                               ARSON I. GIBBS,
                                     Appellant

                                       v.

 GOVERNOR RUTH ANN MINNER; MEMBERS OF THE SENATE individually in
      both houses and in their official capacity; HOUSE OF REPRESENTATIVES
   individually in both houses and in their official capacity; LEGISLATURE OF THE
   STATE OF DELAWARE individually in both houses and in their official capacity;
 THURMAN ADAMS; STEVEN H. AMICK; PATRICIA M. BLEVINS; COLIN R.J.
    BONNI; GEORGE H. BUNTING; CATHERINE L. CLOUTIER; DORINDA A.
CONNOR; NANCY W. COOK; CHARLES L. COPELAND; ANTHONY J. DELUCA;
   MARGARET ROSE HENRY; ROBERT I. MARSHALL; DAVID B. MCBRIDE;
       HARRIS B. MCDOWELL; KAREN E. PETERSON; F. GARY SIMPSON;
 DAVID P. SOKOLA; LIANE SORENSEN; JOHN C. STILL; JAMES T. VAUGHN;
ROBERT L. VENABLES; DONALD A. BLAKEY; JOSEPH W. BOOTH; GERALD L.
  BRADY; BRYON H. SHORT; V. GEORGE CAREY; RICHARD C. CATHCART;
 BENCE C. ENNIS; J. BENJAMIN EWING; ROBERT F. GILLIGAN; BETHANY A.
HALL-LONG; GREGORY A. HASTINGS; GERALD W. HOCKER; DEBORAH HUDSON;
  JAMES JOHNSON; HELENE M. KEELEY; JOHN A. KOWALKO; GREGORY F.
 LAVELLE; CLIFFORD G. LEE; VINCENT A. LOFINK; VALERIE LONGHURST;
MELANIE G. MARSHALL; PAMELA S. MAIER; NICK T. MANOLAKOS; DIANA M.
MCWILLIAMS; JOSEPH E. MINO; JOHN L. MITCHELL; MICHAEL P. MULROONEY;
WILLIAM A. OBERLE; WILLIAM R. OUTTEN; HAZEL D. PLANT; TERESA SCHOOLEY;
PETER C. SCHWARTZKOPF; TERRY R. SPENCE; DONNA D. STONE; PAMELA J.
 THORNBURG; ROBERT J. VALIHURA; JOHN J. VIOLA; NANCY H. WAGNER;
                     ROBERT E. WALLS; DENNIS J. WILLIAMS
                            __________________________
                       Appeal From the United States District Court
                                For the District of Delaware
                              (D.C. Civil No. 07-cv-00342)
                       District Judge: Honorable Sue L. Robinson
                            ___________________________

        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
                                   March 17, 2008

                Before: McKEE, RENDELL and SMITH, Circuit Judges

                                 (Filed March 31, 2008 )
                                        _________

                               OPINION OF THE COURT
                                     _________


PER CURIAM

       Arson I. Gibbs, a state prisoner proceeding pro se, appeals from the District

Court’s order dismissing his complaint as frivolous pursuant to 28 U.S.C. §

1915(e)(2)(B). Because we agree with the District Court and conclude that this appeal is

frivolous as well, we will dismiss it pursuant to § 1915(e)(2)(B).

                                             I.

       Gibbs is currently serving a ten-year prison sentence imposed following his

conviction on multiple counts of forgery and theft. Before his conviction, he had been

detained on these felony charges because he was in default of his bail. Gibbs sought

state-court habeas corpus relief from that confinement, which the state courts denied

pursuant to 10 Del. Code § 6902(1) after determining that his detention on that basis was

                                             2
lawful. He later sought federal habeas relief from his subsequent conviction. The United

States District Court for the District of Delaware denied his petition, and we declined to

issue a certificate of appealability. Gibbs v. Carroll, C.A. No. 07-2944 (Sept. 24, 2007

order).

          While Gibbs’s federal habeas proceeding was pending, he filed the instant action

under 42 U.S.C. § 1983. The precise nature of his claim is somewhat unclear, but he

appears to allege that 10 Del. Code § 6902(1) suspends the federal writ of habeas corpus

in violation of the Suspension Clause (Article I, Section 9, Clause 2) of the United States

Constitution.1 Gibbs named as defendants the Governor of Delaware and (by name)

every member of the Delaware state legislature, each of whom he asserts acted

unconstitutionally in enacting and ratifying § 6902. He seeks monetary damages, an order

enjoining defendants from passing “unconstitutional laws,” and a declaration that § 6902

is unconstitutional. Gibbs later amended his complaint once (to add the names of the

individual legislators), then filed a motion for leave to amend his complaint again. Gibbs

sought to add as defendants certain state-court judges on the basis of their allegedly

unconstitutional enforcement of § 6902.

          The District Court granted Gibbs leave to proceed in forma pauperis. By




 1
   The statute provides, in relevant part, that “[e]very person imprisoned or restrained of
liberty . . . shall have remedy by the writ of habeas corpus, except persons committed or
detained on a charge of treason or felony, the species whereof is plainly and fully set forth
in the commitment.” 10 Del. Code § 6902(1).

                                               3
memorandum order entered July 19, 2007, the District Court dismissed his amended

complaint pursuant to § 1915(e)(2)(B) and denied his motion for leave to amend his

complaint a second time. Gibbs filed a motion for reconsideration, which the District

Court denied by order entered November 13, 2007. Gibbs appeals.2

                                              II.

       Gibbs is proceeding in forma pauperis, so we review this appeal to determine

whether it should be dismissed as frivolous pursuant to § 1915(e)(2)(B). An appeal is

frivolous if it “lacks an arguable basis in law or in fact.” Neitzke v. Williams, 490 U.S.

319, 325 (1989). We agree that Gibbs’s complaint was frivolous and that his proposed

amendment would have been futile for the reasons (including legislative immunity) amply

stated by the District Court. Our independent review reveals that, for those same reasons,

there is no arguable basis to challenge those rulings on appeal.

       We note only two points that the District Court did not specifically address. First,

Gibbs seeks prospective injunctive relief. Legislative immunity does not extend to such

claims for relief in some cases, but it clearly extends to claims – like Gibbs’s here – that

would “seriously interfere” with the legislative function. See Baraka v. McGreevey, 481




 2
   The District Court dismissed Gibbs’s complaint without prejudice, but we have
jurisdiction pursuant to 28 U.S.C. § 1291, both because the dismissal was in part pursuant
to § 1915(e) and because any amendment of the complaint would be futile. See Deutsch
v. United States, 67 F.3d 1080, 1083 (3d Cir. 1995); Borelli v. City of Reading, 532 F.2d
950, 951-52 (3d Cir. 1976). Our review is plenary. See Tourscher v. McCullough, 184
F.3d 236, 240 (3d Cir. 1999).

                                              4
F.3d 187, 202-03 (3d Cir. 2007).

       Second, the District Court concluded that Gibbs challenged only defendants’

actions and raised no direct challenge to the constitutionality of § 6902 itself. Gibbs’s

complaint, however, does seek a declaration that § 6902 is unconstitutional, apparently

contending that it somehow suspends the federal writ of habeas corpus. Even if there

were any merit to Gibbs’s challenge (which we do not decide), he does not allege that §

6902 impeded his ability to seek federal habeas relief in any way. In fact, he sought

federal habeas relief, which was denied for reasons unrelated to § 6902. Moreover, his

current incarceration is the result of the conviction that he unsuccessfully challenged in

his federal habeas proceeding, not the pre-trial detention from which he alleges § 6902

precluded him from obtaining state-court relief. Because Gibbs has not been injured by

any infirmity of the statute that he alleges, he lacks standing to challenge it. See

Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181, 188 (3d Cir. 2006). Accordingly, the

District Court lacked subject matter jurisdiction over this claim, as do we. See id.

Gibbs’s motion for “entry of default” against appellees is denied. See Fed. R. App. P.

26(b), 31(a) and (c).




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