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


7-18-2007

Schaeffer v. Wilson
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1458




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Recommended Citation
"Schaeffer v. Wilson" (2007). 2007 Decisions. Paper 728.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/728


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BLD-272                                                        NOT PRECEDENTIAL


                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 07-1458
                                   ________________

                               STONEY L. SCHAEFFER,
                                     Appellant

                                            v.

    HARRY E. WILSON, Facility Superintendent; TIMOTHY CROSS, State Police
            Supervisor; and NANCY D. VERNON, District Attorney
                 ____________________________________

                    On Appeal From the United States District Court
                       For the Western District of Pennsylvania
                           (W.D. Pa. Civ. No. 06-cv-00189)
                     District Judge: Honorable Arthur J. Schwab
                    _______________________________________

 Submitted For Possible Dismissal due to a Jurisdictional Defect and Possible Dismissal
                           Under 28 U.S.C. § 1915(e)(2)(B)
                                    June 21, 2007

           Before: MCKEE, FUENTES AND VAN ANTWERPEN, CIRCUIT JUDGES


                                 (Filed July 18, 2007)
                              _______________________

                                      OPINION
                              _______________________

PER CURIAM

      Stoney Schaeffer, a state prisoner proceeding pro se, appeals an order of the

United States District Court for the Western District of Pennsylvania dismissing his
complaint against Harry Wilson, a prison superintendent, Timothy Cross, a state police

supervisor, and Nancy Vernon, a district attorney, pursuant to 28 U.S.C. § 1915(e)(2)(B).

We will dismiss Schaeffer’s appeal pursuant to 28 U.S.C. § 1915(e)(2)(B).

       We must first address our jurisdiction to entertain this appeal. We have

jurisdiction of appeals from all final decisions of the district courts. 28 U.S.C. § 1291.

Schaeffer filed his notice of appeal after a Magistrate Judge recommended that the

District Court dismiss his complaint. The Magistrate Judge’s report, however, is not a

final, appealable order under § 1291. See Siers v. Morrash, 700 F.2d 113, 115 (3d Cir.

1983). The District Court then entered a final order adopting the Magistrate Judge’s

report. But Schaeffer’s appeal from the Magistrate Judge’s report did not ripen upon

entry of the final order. Perez-Priego v. Alachua County Clerk of Court, 148 F.3d 1272,

1273 (11th Cir. 1998); Serine v. Peterson, 989 F.2d 371, 372-73 (9th Cir. 1993).

       Although Schaeffer did not file another notice of appeal after the District Court

entered its final order, he did file an application to proceed in forma pauperis on appeal in

this Court within thirty days of the District Court’s order. Because Schaeffer timely

demonstrated an intent to appeal, we conclude that we have jurisdiction. See Smith v.

Barry, 502 U.S. 244, 247-49 (1992) (holding an appellate brief may serve as a notice of

appeal); Fleming v. Evans, 481 F.3d 1249, 1253-54 (10 th Cir. 2007) (holding court had

jurisdiction where the appellant filed a motion for leave to proceed on appeal without

prepayment of costs or fees, which evidenced an intent to appeal).



                                              2
       On the merits, Schaeffer alleged in his complaint that a correctional officer

purposefully opened cell doors to enable three inmates to assault him, and did not respond

when he sought help via an emergency intercom. He further averred that two other

correctional officers paid the inmates to harm him and gave an order to open the cell

doors. Schaeffer claimed that Wilson, the prison superintendent, refused to handle this

incident legally with the courts; that Cross, the state police supervisor, refused to

investigate and prosecute his assailants and answer his letters; and that Vernon, the

district attorney, visited him after he wrote her, but then refused to investigate further and

prosecute his assailants.

       Schaeffer’s complaint fails to state a claim upon which relief may be granted.

Absolute immunity attaches to a prosecutor’s actions performed in a “quasi-judicial” role.

Giuffre v. Bissell, 31 F.3d 1241, 1251-52 (3d Cir. 1994) (citing Imbler v. Pachtman, 424

U.S. 409, 430-31 (1976)). The decision to initiate a prosecution is at the core of a

prosecutor’s judicial role. Id. It follows that Vernon is absolutely immune from liability

arising from her decision not to prosecute the inmates and officers. And we have found

no authority creating a mandatory duty upon Wilson or Cross to investigate and pursue

the prosecution of the inmates and officers. See Inmates of Attica Correctional Facility v.

Rockefeller, 477 F.2d 375, 382 (2d Cir. 1973) (holding inmates failed to state a claim




                                              3
against state officials for failing to investigate or prosecute civil rights violations).1

       Accordingly, we will dismiss this appeal pursuant to 28 U.S.C. § 1915(e)(2)(B).




   1
    The Magistrate Judge also considered whether Schaeffer stated an Eighth Amendment
claim based upon a failure by Wilson, Cross, and Vernon to protect him from the assault.
We do not read the complaint as making such a claim. Schaeffer’s complaint concerns
the lack of response to the assault. Schaeffer mentioned a failure to protect him only in
response to a question in the form complaint asking the result of his report of the assault
to prison authorities. See Complaint at 6, 9.

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