                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-27-2009

John Felgar v. Jeffrey Burkett
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-4089




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Recommended Citation
"John Felgar v. Jeffrey Burkett" (2009). 2009 Decisions. Paper 1304.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1304


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DLD-180                                                   NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT


                                   No. 08-4089


                                JOHN E. FELGAR

                                        v.

 JEFFREY D. BURKETT, Individually, and as District Attorney at Jefferson County;
TONYA S. GEIST, Individually, and as Prothonotary of Jefferson County; JOHN DOE
  #1, Sued in his individual capacity; LAVIETA LERCH, Sued Individually; LARRY
     STRAITIFF, Individually, and as Chief Probation Officer at Jefferson County;
 GREGORY BAZYLAK, Individually, and as Assistant District Attorney at Jefferson
  County; JOHN ENGROS, Individually, and as Public Defender of Jefferson County;
 FRED HUMMEL, Individually, and as Court Appointed Counsel at Jefferson County;
 DANIEL OGDEN, Sued Individually; (FIRST NAME UNKNOWN) DUNKLE, Sued
  Individually; JOHN DOE #2, Sued Individually;JOHN DOE #3, Sued Individually;
MARILYN BROOKS, Sued Individually; WILLIAM HARRISON, Sued Individually;
   BETH MILLER KLAUK, Sued Individually; C. (FNU) GILL, Sued Individually;
 PATRICIA THOMPSON, Sued Individually; JAMES NOON, Jr., Sued Individually;
 MR. (FIRST NAMEUNKOWN) BRYANT, Sued Individually; MICHAEL CLARK,
   Sued Individually; SHARON BURKS; WILLIAM BARR, Sued Individually; MS.
   (FIRST NAME UNKNOWN) CARSON, Sued Individually; MS. (FIRST NAME
     UNKNOWN) GAMBLE, Sued Individually; PATRICIA MCKISSOCK, Sued
  Individually; JEFFREY BEARD, Sued Individually; WILLIAM STICKMAN, Sued
 Individually; GERALD PAPPERT, Sued Individually; THOMAS W. CORBETT, Jr.,
   Sued Individually; ROBERT ENGLESBURG, Sued Individually; ALEXANDER
   MERICLI, Sued Individually; SUSAN J. FORNEY, Sued Individually; SHERIFF
  THOMAS DEMCO; CHRISTOPHER SHAW; CARL GOTWALD; KIRK BRUND


                  On Appeal from the United States District Court
                     for the Western District of Pennsylvania
                             (D.C. No.1-07-cv-00268)
                  District Judge: Honorable Sean J. McLaughlin
        Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2) or
      Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                    May 7, 2009

                  Before: BARRY, AMBRO and SMITH, Circuit Judges

                               (Opinion filed: May 27, 2009)




                                         OPINION

PER CURIAM

       Appellant, John E. Felgar, appeals from the District Court’s order dismissing his

complaint. For the following reasons, we will affirm.

                                              I.

       In 1997, Felgar pleaded guilty to charges in Jefferson County, Pennsylvania of

aggravated assault and driving under the influence of alcohol. The trial court sentenced

him to a term of 2-4 years’ imprisonment, with a maximum sentence date of November

11, 2001. In June 2000, Felgar was released on parole.

       The following year, while he was on parole, Felgar was arrested for physically

assaulting his girlfriend and threatening to kill her. Because the arrest violated the terms

of his parole, Felgar was returned to prison to serve out the remainder of his sentence. On

November 11, 2001, when he reached the maximum sentence date for his 1997 offenses,

Felgar was turned over to police on a detainer issued for the 2001 incident with his

girlfriend. Felgar was then charged with simple assault, terroristic threats, and reckless



                                              2
endangerment.

       On August 22, 2002, Felgar appeared before Jefferson County Common Pleas

Court Judge Foradora and entered into a negotiated plea agreement on these charges.

Specifically, Felgar pleaded guilty to simple assault and terroristic threats, and the

Commonwealth agreed to nolle pros the reckless endangerment charge. The parties

agreed that Felgar would serve 6-24 months’ imprisonment on the simple assault charge,

but that he would be required to serve only five years’ probation on the terroristic threats

charge. After the hearing, Judge Foradora signed two orders to impose these sentences:

one for the simple assault sentence, and one for the suspended sentence on the terroristic

threats charge. It appears, however, that, due to a clerical error, the captions on both of

the orders read “simple assault.” Therefore, on August 26, 2002 Judge Foradora issued

an “Order Correcting Written Sentence Order of August 22, 2002.” As the District Court

explained, this amended order only compounded the confusion; rather than correcting the

caption of the order reflecting the suspended sentence for terroristic threats, the order

changed the caption on the other order.1 As a result, the charges on the sentencing orders

were reversed. On August 29, 2002, Felgar began serving his sentence at the State




   1
    According to Felgar, the amended order stated that, “the sentence order of August 22,
2002, incorrectly lists the charge of simple assault when it should be charged as terroristic
threats. It is hereby Ordered that the written sentence Order of August 22, 2002, is
corrected to list the charge as terroristic threats.” (Am. Compl. ¶ 52.)

                                              3
Correctional Institution at Pittsburgh, Pennsylvania.2

       In November 2002, Felgar filed a petition pursuant to Pennsylvania’s Post-

Conviction Relief Act (“PCRA”), 42 Pa. C.S. § 9541, et seq., in the Court of Common

Pleas of Jefferson County alleging that his sentence was illegal because it failed to

comply with the terms of Judge Foradora’s orders. The court denied the petition, and the

Superior Court affirmed.

       Next, in July 2004, Felgar filed a petition for writ of habeas corpus pursuant to 28

U.S.C. § 2254 in the United States District Court for the Western District of Pennsylvania

raising several challenges to his sentence. The District Court denied the petition, and this

Court denied his application for a certificate of appealability.

       Felgar ultimately served the maximum 24-month term of imprisonment on the

simple assault conviction, plus an additional twelve months of back time on the parole

revocation sentence. Felgar was released from prison on October 10, 2005.3

                                           II.

       On October 5, 2007, Felgar filed a complaint pursuant to 42 U.S.C. § 1983 in the

United States District Court for the Western District of Pennsylvania in which he

essentially alleged that he is being unlawfully confined due to the confusion surrounding


   2
    Meanwhile, the Pennsylvania Board of Probation and Parole determined that Felgar
was a convicted parole violator, and ordered him to serve, as “back time” on his 1997
sentence, 12 of the months during which he had been released on parole.
   3
    Felgar was later recommitted on unrelated charges. It is not clear whether he fully
served the five-year term of probation on the terroristic threats charge.

                                                 4
his August 26, 2003 amended sentencing order.4 Felgar claims that he should have been

released on probation immediately after his sentencing hearing because, “whether the

label being simple assault or whether it being terroristic threats, the [August 26, 2002

amended order] specifically states that the sentence is suspended and The Defendant be

placed on Probation for 5 (five) years.” (Am. Compl. ¶¶ 53-54.) Felgar argues that the

DOC Defendants have violated his Fifth, Eighth, and Fourteenth Amendment rights by

refusing to release him “despite their knowledge of a court order suspending [his]

sentence of incarceration and placing him on [five years’] probation.” (Am. Compl. ¶

101.) Felgar also claimed that the AG Defendants had violated his Fifth, Eighth, and

Fourteenth Amendment rights by attempting to conceal his wrongful commitment, and

that various members of the Jefferson County District Attorney’s office were negligent.5

(Am. Compl. ¶¶ 80-81). Felgar sought declaratory and injunctive relief as well as

monetary damages.

         Both the DOC and AG Defendants moved to dismiss the Amended Complaint.

The matter was referred to a Magistrate Judge who recommended that the District Court

dismiss the case for lack of subject matter jurisdiction. The court agreed, and, by order

entered September 15, 2008, dismissed the Amended Complaint on the ground that the



   4
       Felgar filed an amended complaint on January 23, 2008.
   5
   Felgar further alleged that the AG Defendants had conspired with state officers “to
commit the torts of malice and negligence” by submitting fraudulent evidence in the
habeas proceedings. (Am. Compl. ¶¶ 102-03.)

                                              5
matter was frivolous and failed to state a claim upon which relief could be granted.6 See

28 U.S.C. § 1915(e)(2)(B). This appeal followed.7

                                              III.

          Upon review, we conclude that the District Court’s dismissal of the Amended

Complaint for lack of subject matter jurisdiction was proper.8 It is well-settled that,

when, as in this case, a state prisoner is challenging the fact or duration of his

confinement, his sole federal remedy is a writ of habeas corpus, not a § 1983 action.

Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); Williams v. Consovoy 453 F.3d 173,

177 (3d Cir. 2006). In Heck v Humphrey, 512 U.S. 477 (1994), the Supreme Court held

that, when success in a § 1983 action would implicitly call into question the validity of a

conviction or the duration of a sentence, the plaintiff must achieve a favorable result

through available state or federal challenges to the underlying conviction or sentence

before he may proceed under § 1983. Considering Heck and summarizing the interplay

between habeas and § 1983 claims, the Supreme Court recently explained that:

          [A] state prisoner’s § 1983 action is barred (absent prior invalidation)—no matter


   6
    As a result, the court then dismissed the DOC’s and AG’s motions as moot. The
District Court also dismissed Felgar’s claims against unnamed defendant “John Doe # 1”
because Felgar had failed to identify and serve this defendant within the requisite period,
see Fed. R. Civ. P. 4(m), and because continued pursuit of Felgar’s claims against the
defendant would be frivolous.
   7
       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.
   8
    We may affirm the District Court’s decision on an alternative basis supported by the
record. See Erie Telecomms. v. Erie, 853 F.2d 1084, 1089 (3d Cir. 1988).

                                               6
       the relief sought (damages or equitable relief), no matter the target of the
       prisoner’s suit (state conduct leading to conviction or internal prison
       proceedings)—if success in that action would necessarily demonstrate the
       invalidity of the confinement or its duration.

Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (emphasis in original).

       Thus, the threshold inquiry in determining whether § 1983 is a proper vehicle for

Felgar’s complaint is whether success in this § 1983 action would “necessarily

demonstrate” the invalidity of his sentence. We answer this question in the affirmative

because success on Felgar’s claims against the DOC and AG Defendants—i.e., a finding

that the defendants violated his Fifth, Eighth, and Fourteenth Amendment rights by

confining him in violation of the terms of Judge Foradora’s August 26, 2002 amended

sentencing order—would necessarily demonstrate the invalidity of his sentence.

Accordingly, because the state sentence has not been overturned or otherwise rendered

invalid, Felgar may not attack it via a § 1983 action, and the District Court’s dismissal of

his claims was proper.9

                                             IV.

       For the foregoing reasons, we conclude that the District Court’s decision to

dismiss the Amended Complaint was proper. Accordingly, as there is no substantial

question presented by this appeal, we will summarily affirm. See Third Cir. LAR 27.4;



   9
    To the extent that Felgar alleged that certain defendants committed various torts
against him, (Am. Compl. ¶¶ 95-103), the District Court did not err in declining to
exercise supplemental jurisdiction over these state-law claims once it dismissed the §
1983 claims. See 28 U.S.C. § 1367(c)(3).

                                              7
I.O.P. 10.6. Felgar’s motion for appointment of counsel and his motion for sanctions are

denied.10




   10
     After the Clerk informed Felgar that this appeal would be submitted to a panel for
determination under 28 U.S.C. § 1915(e)(2) or for summary action under Third Circuit
LAR 27.4 and I.O.P. 10.6., Felgar submitted a “Memorandum of Law” in support of his
appeal. After several appellees responded to Felgar’s submission, Felgar requested that
the Court “order sanctions against [appellees’] counsel for the misleading statements in
their [response] and to compensate [him] for cost of attorneys fees at $200.00 per hour for
two hours of unnecessary litigation, and to cease from any further frivolous filings to the
court.” (Motion dated February 8, 2009 ¶ 13.) This motion is denied.

                                             8
