                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-16-2006

Bierley v. Grolumond
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3696




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Recommended Citation
"Bierley v. Grolumond" (2006). 2006 Decisions. Paper 1416.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1416


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RESUBMIT DPS-150                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                   NO. 05-3696
                     ______________________________________

                                   HARRY BIERLEY,
                                           Appellant

                                              v.

                    DEP. SHERIFF MICHAEL GROLUMOND;
                  ERIK CHRISTENSEN; STEPHEN BRANDON;
              SHERIFF ROBERT MERSKI; JUDGE ERNEST DISANTIS
                   ______________________________________

                    On Appeal From the United States District Court
                       For the Western District of Pennsylvania
                             (D.C. Civ. No. 05-cv-00049)
                         District Judge: Thomas M. Hardiman
                    _______________________________________

           Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
                                    March 7, 2006

      Before: ROTH, FUENTES AND VAN ANTWERPEN, CIRCUIT JUDGES

                                (Filed: March 16, 2006 )
                                ____________________

                                      OPINION
                              _______________________
PER CURIAM

      Appellant Harry Bierley appeals the District Court’s orders of May 31, 2005, and

July 1, 2005. For the reasons that follow, we will dismiss the appeal as frivolous. See 28

U.S.C. § 1915(e)(2)(B); see also Neitzke v. Williams, 490 U.S. 319, 315 (1989).
       The parties are familiar with the facts, so we will only briefly revisit them here. In

November 2004, Bierley was sentenced by Judge DiSantis in the Court of Common Pleas

of Erie County to a term of two to eleven months’ imprisonment. As a condition of

Bierley’s parole, Judge DiSantis restricted his access to the Erie County Courthouse.

Specifically, Bierley was required to give prior notice to his parole officer if he wished to

conduct official business on his own behalf or testify as a witness during his parole

period. However, if Bierley wanted access to the Courthouse for any other reason, Judge

DiSantis’ prior approval was necessary. On February 3, 2005, Bierley entered the

Courthouse to “conduct[] business on a civil matter.” However, because Bierley had

neither given prior notice to his parole officer nor received permission from Judge

DiSantis to enter the Courthouse, Bierley was ordered to leave the premises.

       The following day, Bierley initiated the underlying civil rights action in the United

States District Court for the Western District of Pennsylvania. In his complaint and

subsequent amended complaint, Bierley alleged violations of his rights to due process,

equal protection, and access to the courts resulting from the 2004 state criminal

proceedings and his removal from the Courthouse on February 3, 2005. Bierley sought

compensatory damages, and declaratory and injunctive relief. The defendants responded

to Bierley’s complaint by arguing, inter alia, that his claims were without merit and that

they were entitled to either qualified or absolute immunity. On May 26, 2005, the District




                                              2
Court held a 40-minute telephonic hearing with Bierley and counsel for the defendants.1

Thereafter, by order entered May 31, 2005, the District Court dismissed Bierley’s action.

Bierley then filed a timely motion for reconsideration, which the District Court denied by

order entered July 1, 2005. This timely appeal followed.

       This Court has jurisdiction pursuant to 28 U.S.C. § 1291. Because Bierley has

been granted leave to proceed in forma pauperis on appeal, this Court must dismiss his

appeal if it is “frivolous.” 28 U.S.C. § 1915(e)(2)(B). A frivolous appeal has no arguable

basis in law or fact. Neitzke, 490 U.S. at 325. After a careful review of the record,

including the transcript of the May 26 hearing, we will dismiss this appeal because

Bierley’s claims lack an arguable basis in law or fact.

       We turn first to Bierley’s claims regarding his 2004 state court conviction. Insofar

as Bierley is attempting to challenge the fact or duration of his conviction or sentence, a

petition pursuant to 28 U.S.C. § 2254 is the exclusive method for seeking relief.2 See

Preiser v. Rodriguez, 411 U.S. 475, 488-90 (1973). Likewise, to the extent that Bierley’s

claims “would necessarily imply the invalidity of his conviction or sentence,” they are

barred by Heck v. Humphrey, 512 U.S. 477, 487 (1994). See Gilles v. Davis, 427 F.3d



       1
         A court reporter was present for the May 26 hearing, which was subsequently
transcribed.
       2
         We note that on December 14, 2004, Bierley filed in the District Court for the
Western District of Pennsylvania a § 2254 petition challenging his November 2004 state
court conviction. See W.D. Pa. Civ. No. 04-00363. Bierley’s petition is presently
pending in the District Court.

                                              3
197, 208-210 (3d Cir. 2005).

       Moreover, to the extent that any of the remaining claims can arguably survive the

Heck bar, we find them to be meritless. Bierley’s claims against Judge DiSantis are, of

course, barred by the doctrine of judicial immunity. It is a well-established principle that

judges are absolutely immune from suits for damages under 42 U.S.C. § 1983 when they

act in a judicial capacity. See Stump v. Sparkman, 435 U.S. 349, 356-57 (1978) (citation

omitted) (“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.’”). Because the

acts Bierley complains of – sentencing, denial of pre-trial motions, and the conditions of

parole – were all performed by Judge DiSantis in his official capacity, Judge DiSantis is

entitled to judicial immunity. See, Gallas v. Supreme Court of Pennsylvania, 211 F.3d

760, 768-69 (3d Cir. 2000).

       We next address Bierley’s claims regarding his February 3, 2005, removal from

the Courthouse. To bring a successful equal protection claim under § 1983, a plaintiff

must prove the existence of purposeful discrimination, and demonstrate that he was

treated differently from individuals similarly situated. See Keenan v. City of

Philadelphia, 983 F.2d 459, 465 (3d Cir. 1992). Bierley simply failed to allege any facts

in the District Court which can be construed as establishing a viable equal protection

claim. Bierley’s due process allegations regarding the events of February 3, 2005, are



                                              4
likewise without merit. On November 29, 2004, Judge DiSantis drafted a memorandum

to defendant Sheriff Merski, explaining that Bierley’s access to the Courthouse was

restricted during the period of his parole. Bierley alleges that the defendants violated his

due process rights by failing to serve him with a copy of Judge DiSantis’ memorandum as

required by Pennsylvania Rule of Criminal Procedure 114, and by removing him from the

Courthouse without giving him prior notice of the conditions of his parole. Even

assuming arguendo that Bierley was entitled to a copy of Judge DiSantis’ memorandum

under Pennsylvania law, it is well-established that “state law does not ordinarily define

the parameters of due process for Fourteenth Amendment purposes; rather, the minimum,

constitutionally mandated requirements of due process in a given context and case are

supplied and defined by federal law, not by state law or regulations.” Shuman ex rel.

Shertzer v. Penn Manor Sch. Dist., 422 F.3d 141, 150 n. 4 (quotation and citation

omitted). Bierley does not assert that he was not present at his November 4, 2004,

sentencing hearing where Judge DiSantis explained the conditions of his parole, and he

simply fails to allege that he was deprived of any process due him under federal law.

Under these circumstances, we can deduce no due process violation.

       Finally, a violation of the First Amendment right of access to the courts is only

established where a litigant shows that he was actually injured by the alleged denial of

access. The actual injury requirement is a constitutional prerequisite to suit. Lewis v.

Casey, 518 U.S. 343, 351 (1996); Christopher v. Harbury, 536 U.S. 403, 415 (2002)



                                              5
(explaining that the constitutional right of access is “ancillary to the underlying claim,

without which a plaintiff cannot have suffered injury by being shut out of court”). An

actual injury is shown only where a non-frivolous, arguable claim is lost. Christopher,

536 U.S. at 415. Bierley has not alleged, must less established, that he suffered the loss

of a non-frivolous legal claim when he was ordered to leave the Courthouse.

Furthermore, Bierley’s parole restrictions did not preclude him from filing lawsuits, or

even entering the Courthouse; instead, he needed merely to contact his parole officer or

Judge DiSantis before doing so. Thus, we have little difficulty concluding that Bierley’s

access to the courts claim lacks merit.

       Having found no merit to this appeal, we will dismiss it pursuant to 28 U.S.C.

§ 1915(e)(2)(B).




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