                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-4-2003

Chapman v. Comm of PA
Precedential or Non-Precedential: Non-Precedential

Docket No. 99-3278




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                                                    NOT PRECEDENTIAL

         THE UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT

                           __________

                        Case No: 99-3278
                          __________

        J. TODD CHAPM AN, a/k/a James Todd Chapman


                                v.

            COMMONWEALTH OF PENNSYLVANIA;
MICHAEL FISHER, sued in his official capacity as Attorney General
                of the Commonwealth of Pennsylvania;
  REBECCA BICKLEY, sued in her individual capacity and in her
         official capacity as Director of the Bureau of Driver
  Licensing, Department of Transportation of the Commonwealth
     of Pennsylvania; MICHAEL DAWIDA, sued in his official
capacity as Allegheny County Commissioner; LAWRENCE DUNN,
           sued in his official capacity as Allegheny County
 Commissioner; ROBERT CRANMER, sued in his official capacity
as Allegheny County Commissioner; ROBERT COLVILLE, sued in
      his individual capacity and in his former official capacity
         as District Attorney of Allegheny County; CLAIRE
        CAPRISTO, sued in her individual capacity and in her
      official capacity as Assistant District Attorney Allegheny
  County; SANDRA PRUEHS, sued in her individual capacity and
       in her official capacity as Assistant District Attorney of
   Allegheny County; ANAGARD STOCK, sued in her individual
       capacity and in her official capacity as Assistant District
    Attorney of Allegheny County; DEBRA JUGAN, sued in her
           individual capacity and in her official capacity as
    Assistant District Attorney of Allegheny County; JOHN DOE
    GOODWIN, sued in his individual capacity and in his official
    capacity as Assistant District Attorney of Allegheny County;
   EUGENE RICUITTI, sued in his individual capacity and in his


                                1
              official capacity as Assistant District Attorney of
   Allegheny County; MICHAEL STRIELLY, sued in his individual
         capacity and in his official capacity as Assistant District
   Attorney of Allegheny County; MARK TRANQUILLI, sued in his
              individual capacity and in his official capacity as
      Assistant District Attorney of Allegheny County; PATRICK
       NIGHTINGALE, sued in his individual capacity and in his
              official capacity as Assistant District Attorney of
  Allegheny County; RAYMOND A. NOVAK, sued in his individual
        capacity and in his official capacity as Judge of the Court
  of Common Pleas of Allegheny County; DONALD MACHEN, sued
          in his individual capacity and in his official capacity as
       Judge of the Court of Common Pleas of Allegheny County;
        LOUIS COLES, sued in his individual capacity and in his
        official capacity as Magistrate Judge of the Traffic Court
of the City of Pittsburgh; WILLIAM SIMMONS, sued in his individual
      capacity as Chief Magistrate Judge of the City of Pittsburgh;
MICHAEL M ACHEN, sued in his individual capacity and in his former
          official capacity as Director of the Office of the Public
    Defender of Allegheny County; KEVIN G. SASINOSKI, sued in
           his individual capacity and in his official capacity as
       Director of the Office of the Public Defender of Allegheny
 County; MITCHELL KAUFM AN, sued in his individual capacity and
      in his official capacity as Chief of the Appellant division of
         the Office of the Public Defender of Allegheny County;
   JOHN FENNER, sued in his individual capacity and in his official
            capacity as a Public Defender of Allegheny County;
      JAM ES DURKIN, sued in his individual capacity and in his
      official capacity as a Public Defender of Allegheny County;
 CANDACE CAIN, sued in her individual capacity and in her official
            capacity as a Public Defender of Allegheny County;
CHARLES T. CLARK, sued in his individual capacity and in his official
            capacity as a Public Defender of Allegheny County;
         MARY OGDEN, sued in her individual capacity and in
             her official capacity as a typist in the Office of the
   Public Defender of Allegheny County; CAROL MOSS, sued in her
        individual capacity and in her official capacity as Minute
       Clerk in the Court of Common Pleas of Allegheny County;
     KAREN NORKUS, sued in her individual capacity and in her
        official capacity as Minute Clerk in the Court of Common

                                 2
 Pleas of Allegheny County; CHRISTINE MARTONE, sued in her
        individual capacity and in her official capacity as Chief
       Psychiatrist in the Court of Common Pleas of Allegheny
  County; SABOTO STILE, sued in his individual capacity and in
     his official capacity as Psychiatrist in the Court of Common
    Pleas of Allegheny County; JOYCE LEE ITKIN, sued in her
      individual capacity and in her official capacity as Clerk of
    Courts of Allegheny County; THOMAS FRANK, sued in his
        individual capacity and in his official capacity as Court
       Reporting Network Officer; JOSEPH ROSE, sued in his
        individual capacity and in his official capacity as Parole
    Officer of the Court of Common Pleas of Allegheny County;
    JOLYNNE ROSS, sued in her individual capacity and in her
           official capacity as Director of Court Reporters of
     Allegheny County; MARK CORBIN, sued in his individual
          capacity and in his official capacity as Official Court
  Reporter of Allegheny County; SUSAN E. LLOYD, sued in her
      individual capacity and in her official capacity as Official
Court Reporter of Allegheny County; KIMBERLY HOLBEIN, sued
        in her individual capacity and in her official capacity as
Official Court Reporter of Allegheny County; LOURIE KASARDA,
      sued in her individual capacity and in her official capacity
    as Official Court Reporter of Allegheny County; WENDY J.
     DODDS, sued in her individual capacity and in her official
       capacity as Official Court Reporter of Allegheny County;
   LISA VAN SCYOC, sued in her individual capacity and in her
       official capacity as Official Court Reporter of Allegheny
  County; TERESA BENSON, sued in her individual capacity and
          in her official capacity as Official Court Reporter of
  Allegheny County; JANET CAM PBELL, sued in her individual
          capacity and in her official capacity as Official Court
    Reporter of Allegheny County; EUGENE COON, sued in his
       individual capacity and in his official capacity as Sheriff
    of Allegheny County; MARK ZUGER, sued in his individual
       capacity and in his official capacity as Chief of Police of
  the Borough of Homestead; JOHN M CDONOUGH, sued in his
      individual capacity and in his official capacity as Sergeant
 of Police of the Borough of Homestead; CARL MARCUS, sued in
  his individual capacity as an attorney; MARILYN AL KHAFIZ,
    sued in her individual capacity as an attorney; ST. FRANCIS

                                3
         CENTRAL MEDICAL CENTER, a corporation which operates in
       Allegheny County; JANE DOE BROWN, a nurse at St. Francis CMC;
           DR. JOHN DOE MINSHULL, a physician at St. Francis CMC;
            TOM MURPHY, sued in his official capacity as Mayor of the
         City of Pittsburgh; SALVATRE SIRABELLA, sued in his official
                 capacity as the Deputy Mayor of the City of Pittsburgh;
            ROBERT W. MCNEILLY, JR., sued in his official capacity as
             Chief of Police, City of Pittsburgh; EARL BUFORD, former
         Chief of Police, City of Pittsburgh, sued in his individual capacity;
FRATERNAL ORDER OF POLICE, FORT PITT LODGE NO. 1, c/o Marshall Hynes,
             President; JOHN DOE ALLM AN, Pittsburgh Police Officer;
     BART SCALA, Pittsburgh Police Officer; CHESTER KEPKA, Pittsburgh
        Police Officer; JOHN DOE MIHALOW, Pittsburgh Police Officer;
       MANI GREGORCHIK, Pittsburgh Police Officer; SAM UEL BRUNI,
           Pittsbrugh Police Officer; JAMES R. SMITH, Pittsburgh Police
            Officer; DAVID CAPLAN, Pittsbrugh Police Officer; CHRIS
      WYDRA, Pittsburgh Police Officer; DOES 1-8, sued in their individual
          capacities; DOES 9-14, Deputy Sheriff of Allegheny sued in their
         individual capacities; ALTERNATIVES DUI, a corporation which
      operates in Allegheny County; STEVEN R. TABANO, a private lawyer,
   sued in his individual capacity; MELANIE SHANNON ROTHEY, sued in her
             individual capacity as a law clerk for fr. Raymond A. Novak;
           ROBERT E. DAUER, sued in his individual capacity and in his
       official capacity as Judge of the Court of Common Pleas of Allegheny
    County; DAVID A. SZEWCZAK, sued in his individual capacity and in his
               official capacity as the Prothonotary of the Superior Court
          Pennsylvania; ELEANOR R. VALECKO, sued on her individual
                   capacity and in her official capacity as the Deputy
             Prothonotary of the Superior Court Pennsylvania; RONALD
             BOGLITZ, sued in his individual capacity and in his official
            capacity as Parole Officer Supervisor of the Court of Common
          Pleas of Allegheny County; MARY B. MCCARTHY, sued in her
               individual capacity and in her official capacity as Official
        Court Reporter of Allegheny County; GARY GRAHAM, sued in his
                individual capacity and in his former official capacity as
         Mayor of the Borough of Homestead; BETTY ESPER, sued in her
           official capacity as Mayor of the Borough of Homestead; BART
      VANT, sued in his individual capacity; JANE DOE TW O, a nurse at the
     Allegheny County Jail; CALVIN LIGHTFOOT, warden of the Allegheny
             County jail, sued in his official capacity and in his individual

                                      4
                                              capacity


                                              J. Todd Chapman,
                                                       Appellant
                                            __________

            ON APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE WESTERN DISTRICT OF PENNSYLVANIA

                                 (D.C. Civil No. 98-cv-00479)
                      District Judge: The Honorable Robert J. Cindrich

                                           ___________

                         Submitted Under Third Circuit LAR 34.1(a)
                                     October 9, 2003

           BEFORE: NYGAARD, M cKEE and STAPLETON, Circuit Judges.


                                   (Filed: November 4, 2003 )

                                           ___________

                                  OPINION OF THE COURT
                                       ___________


NYGAARD, Circuit Judge.

       Appellant Todd Chapman filed a voluminous civil rights complaint against various

officials of the Commonwealth of Pennsylvania as well as several private entities. The

District Court dismissed the complaint. We will affirm.

                                                  I.

       The facts of this case are set forth at length in the parties’ briefs and, therefore, will only



                                                  5
be summarized here. Appellant, Todd Chapman, was convicted by a jury in the Court of

Common Pleas of Allegheny County of driving under the influence (“DUI”) and resisting arrest.

Chapman was sentenced to a period of incarceration of twenty-eight days and to a two-year term

of probation for the DUI charge. No further penalty was imposed for the resisting arrest

conviction, and his sentence was stayed pending appeal. Chapman had difficulties with several

of the attorneys appointed to represent him and, after conducting a hearing, the trial court

determined that new counsel should not be appointed for Chapman.

       The Pennsylvania Superior Court adopted the trial court’s findings, and ordered Chapman

to file his brief by March 1, 1999. Chapman failed to comply with this order and the Superior

Court dismissed his appeal for failure to prosecute. Two months later, the trial court ordered

Chapman to report to the courthouse to serve the sentence that had been imposed. Chapman

failed to appear, was found to be in contempt of the court’s January 30, 1997 sentencing order,

and was remanded to the custody of the Allegheny County Jail. At a contempt review hearing,

the trial court determined that Chapman was unable to cooperate in the criminal justice system

due to mental illness. Accordingly, the court revoked its previous sentence, imposed a sentence

of time served plus eighteen months probation, and released Chapman from custody. Chapman

did not appeal this sentence.

       During the pendency of these state court proceedings (in particular, while his appeal was

before the Pennsylvania Superior Court), Appellant filed a complaint pursuant to 42 U.S.C. §

1983 alleging violations of his constitutional and civil rights arising out of his arrest, convictions

and sentence. Chapman alleged, inter alia, that various state defendants (more than eighty in

total) had falsely arrested and imprisoned him, used excessive force in arresting him, and pursued


                                                  6
his arrest, prosecution and incarceration without probable cause and on the basis of his race.

       The District Court (Cindrich, J.) adopted the report issued by the Magistrate Judge, which

recommended that defendants’ motions to dismiss for failure to state a claim be granted and that

the complaint be dismissed (with the exception of Appellant’s claims of use of excessive force,

which were dismissed as violative of Fed. R. Civ. P. 8) on the ground that Chapman’s

convictions had not been previously invalidated by the state courts or called into question by the

issuance of a federal writ of habeas corpus as required by the Supreme Court in Heck v.

Humphrey, 512 U.S. 477 (1994).1

       Chapman appealed the District Court’s dismissal order and we appointed amicus counsel

to brief the question of whether the favorable termination requirement set forth in Heck bars a

claim brought pursuant to 42 U.S.C. § 1983 by a plaintiff who, because of the imposition of a

very short sentence (or no period of incarceration at all), is no longer in the custody of the State,

and thus has no remedy in habeas corpus.2 Briefing is complete and this appeal is now ripe for


       1
            The District Court’s dismissal of Chapman’s complaint was without prejudice.
When a District Court has dismissed a complaint without prejudice, the dismissal is not
immediately appealable unless the plaintiff cannot amend or declares his or her intention to stand
on the complaint. Borelli v. City of Reading, 532 F.3d 950, 951-52 (3d Cir. 1976). Chapman
contends that he expressed his desire to stand on the complaint as filed in both his objections to
the Magistrate Judge’s Report and Recommendation and in his notice of appeal. Additionally, he
has unequivocally stated in submissions to this Court that he wishes to stand on his amended
complaint. Accordingly, we have jurisdiction over this appeal. See Remick v. Manfredy, 238
F.3d 248, 254 (3d Cir. 2001) (where appellant unequivocally states intent to stand on his
complaint to appellate court, Court of Appeals has jurisdiction over the appeal); see also Shapiro
v. UJB Financial Corp., 964 F.2d 272, 279 (3d Cir. 1992) (“a plaintiff can convert a dismissal
with leave to amend into a final order by electing to stand upon the original complaint”) (citing
Borelli 532 F.3d at 951-52).
       2
          There was no indication in the District Court record or in the parties’ initial
submissions to this Court as to the actual sentence Chapman received for his DUI conviction.
The only period of custody referenced by Appellant was a short stay in jail (i.e., just over one

                                                  7
disposition.3

                                                 II.

        Varied interpretations of the Heck holding have issued, partially because the language of

the holding does not appear to be limited to the facts of the case. The holding speaks in terms of

“a § 1983 plaintiff,” although the plaintiff in Heck was an inmate. The Supreme Court in Heck

held as follows:

       [I]n order to recover damages for allegedly unconstitutional conviction or
       imprisonment, or for other harm caused by actions whose unlawfulness would
       render a conviction or sentence invalid, [footnote omitted] a § 1983 plaintiff must
       prove that the conviction or sentence has been reversed on direct appeal,
       expunged by executive order, declared invalid by a state tribunal authorized to
       make such determination, or called into question by a federal court's issuance of a
       writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that
       relationship to a conviction or sentence that has not been so invalidated is not
       cognizable under § 1983.

512 U.S. at 486-87 (emphasis in original).

       We conclude that we need not answer the question of the applicability of Heck at this

time because the situation presented by this case does not give us the appropriate opportunity to


week), and it was not clear whether this was immediately after his arrest, during the pendency of
the criminal proceedings, or after his conviction. Moreover, no mention was made by the parties
of the imposition of a probationary period. Thus, the issue suggested for supplemental briefing
referred to a § 1983 plaintiff who received a short sentence or no sentence at all. It was not until
the parties filed supplemental briefs and referenced Chapman’s subsequently-filed habeas
petition (discussed infra) that the details of his criminal convictions and sentence were made
known.
       3
            On June 21, 1999, three months after the District Court dismissed his § 1983
complaint, Chapman filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
However, because Appellant had been released from custody on October 8, 1999 and his
probationary period expired on April 8, 2001, the District Court adopted the Report and
Recommendation issued by the Magistrate Judge and dismissed the petition as moot in an order
entered on July 11, 2001. See Chapman v. Commonwealth of Pa., et al., W.D. Pa. Civ. No. 99-
cv-00979. It does not appear that Chapman ever appealed the District Court’s dismissal order.

                                                 8
do so. When Chapman filed his § 1983 action in the District Court, his state appeal was pending

before the Pennsylvania Superior Court. It has long been established that the exclusive method

of challenging an allegedly unconstitutional state conviction in the lower federal courts is a

habeas corpus action. See Preiser v. Rodriguez, 411 U.S. 475, 488-90 (1973); see also Leamer v.

Fauver, 288 F.3d 532, 540 (3d Cir. 2002). Additionally, the Supreme Court has repeatedly

admonished that civil tort actions (as well as § 1983 actions) are not the “appropriate vehicles for

challenging the validity of outstanding criminal judgments.” Heck, 512 U.S. at 486. Thus, the

Court made clear in Heck that to recover damages for an allegedly unconstitutional conviction or

imprisonment, “a § 1983 plaintiff must prove that the conviction or sentence has been reversed

on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to

make such determination, or called into question by a federal court’s issuance of a writ of habeas

corpus.” Id. at 486-87.

       As summarized by the Second Circuit in Huang v. Johnson, “[t]he Court’s rationale was

based, in part, on a desire to ‘avoid parallel litigation over the issues of probable cause and guilt,’

prevent ‘the creation of two conflicting resolutions arising out of the same or identical

transaction,’ and preclude ‘a convicted criminal defendant from making a collateral attack on the

conviction through the vehicle of a civil suit.’” 251 F.3d 65, 73 (2nd Cir., 2001) (quoting Heck

512 U.S. at 484). What Chapman sought to do through the filing of his § 1983 action was to

simultaneously have his DUI and resisting arrest convictions and sentence declared invalid, and

to recover damages for the allegedly improper actions of the named defendants—all while his

direct appeal was still pending in state court. This type of “hybridization,” as the First Circuit

referred to it in Figueroa v. Rivera, 147 F.3d 77, 81 (1st Cir. 1998), is foreclosed by the Supreme


                                                  9
Court’s decision in Heck, which “makes the impugning of an allegedly unconstitutional

conviction in a separate, antecedent proceeding a prerequisite to a resultant section 1983 action

for damages.” As Justice Souter explained in Heck, “allowing a state prisoner to proceed directly

with a federal court § 1983 attack on his conviction or sentence ‘would wholly frustrate explicit

intent’ as declared in the habeas exhaustion requirement.” Heck, 512 U.S. at 498 (quoting

Preiser, 411 U.S. at 489). This appears to be exactly what Chapman did. Without waiting for a

decision by the Superior Court on his direct appeal, Chapman sought to challenge his convictions

and sentence and to obtain damages through a § 1983 action filed in the United States District

Court for the Western District of Pennsylvania.

       This is not a situation where the remedy of federal habeas was unavailable to Chapman,

but rather presents a case in which, at the time he filed his § 1983 complaint, Chapman simply

had not first exhausted state remedies nor availed himself of the federal habeas option.4 The trial

court imposed a sentence of twenty-eight days imprisonment and a two-year probationary period

on Chapman. That sentence was stayed during the pendency of Chapman’s appeal.

Additionally, the trial court revoked its earlier order and sentenced Chapman to time served plus

eighteen months of probation. Chapman failed to seek even initial review of this newly imposed

sentence, despite the fact that such an appeal would have afforded him direct appellate review of

a criminal sentence that had once before been dismissed on procedural grounds.



       4
           Counsel for Appellees St. Francis Central Hospital, Jane Doe Brown, and Dr. John
Doe Minshull, incorrectly states that “at the time Chapman initiated this action on April 19,
1999, he lacked a procedural vehicle to challenge his conviction [as] the Superior Court of
Pennsylvania dismissed his appeal for failure to file a brief on March 10, 1999.” As noted
previously, Chapman filed his § 1983 action on March 10, 1998 (not April 19, 1999), while his
direct appeal was still pending before the Superior Court.

                                                  10
       Given the particular circumstances of this case, Appellant does not appear to fall within

one of the classes of § 1983 plaintiffs that the Justices had noted concern for in the Spencer v.

Kemna dictum, i.e., “individuals without recourse to the habeas statute because they are not ‘in

custody’ (people merely fined or whose sentences have been fully served, for example)”, 523

U.S. 1, 21 (1998), as his probationary period—which did not expire until April 8, 2001 (more

than three years after the filing of his § 1983 complaint)—would have satisfied the habeas “in

custody” requirement even if his period of incarceration had been served in its entirety. See

United States ex rel. Wojtycha v. Hopkins, 517 F.2d 420 (3d Cir. 1975) (a prisoner out on

probation is still in custody). In fact, as noted previously, Chapman did seek habeas relief after

the court dismissed his § 1983 complaint, although without successfully securing its remedy

since his sentence had expired during the pendency of that proceeding.

       Amicus argues that, regardless of Chapman’s custody status at the time he filed his § 1983

action, Appellant has since been released and thus any Heck bar that might have existed at the

time of the District Court’s dismissal has been removed. We do not agree. The Supreme Court

specifically noted in Heck that “the principle barring collateral attacks is not rendered

inapplicable by the fortuity that a convicted criminal is no longer incarcerated.” Heck, 512 U.S.

at 490 n.10. Amicus is correct to point out that in Nonnette v. Small,, the Ninth Circuit allowed

one plaintiff to proceed with a § 1983 claim even though a petition for writ of habeas corpus

would have had to be dismissed for lack of a case or controversy because the plaintiff’s period of

incarceration expired after the entry of the order of dismissal but prior to the disposition of the

appeal. 316 F.3d 872, 877-78 (9th Cir. 2002). The court in Nonnette, however, was particularly

careful to limit its holding to a narrow class of plaintiffs. The court emphasized that its holding


                                                 11
“affects only former prisoners challenging loss of good-time credits, revocation of parole or

similar matters; the status of prisoners challenging their underlying convictions or sentences does

not change upon release, because they continue to be able to petition for a writ of habeas corpus.”

Id. at 878 n.7 (citing Spencer, 523 U.S. at 7-12).

       The court in Nonnette concluded that, under the circumstances of that case (i.e., the loss

of 360 days of good-time credits, the exhaustion of administrative remedies, and the

unavailability of federal habeas relief), “justice requires that we vacate the judgment of the

District Court and permit Nonnette to proceed with his § 1983 claims here.” 316 F.3d at 878.

There does not appear to be any such justification presented by the circumstances of Chapman’s

case, especially given the fact that Chapman abandoned his pursuit of state remedies by failing to

file a brief with the Superior Court and subsequently failing to appeal his new sentence. Even

the subsequent dismissal of Chapman’s habeas petition (which, despite a probationary sentence

that ultimately extended three years into the future, was filed more than a year after he initiated

his § 1983 action, more than three months after the entry of the dismissal order, and prior to

exhaustion of state remedies) fails to tip the “justification” scale in Appellant’s favor. Aside

from the mootness determination, the petition would have been subject to dismissal on the

ground that Chapman failed to exhaust his state court remedies or procedurally defaulted the

claims presented in the § 2254 petition.

                                                 III.

       Chapman’s § 1983 action falls within the purview of the Supreme Court’s decision in

Heck and the District Court properly dismissed the complaint for failing to satisfy the “favorable

termination” requirement. The District Court’s order will be affirmed.


                                                 12
_________________________

TO THE CLERK:

     Please file the foregoing opinion.




                                               /s/ Richard L. Nygaard
                                               Circuit Judge




                                          13
