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


2-2-2007

Cardone v. Ryan
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3338




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Recommended Citation
"Cardone v. Ryan" (2007). 2007 Decisions. Paper 1683.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1683


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ALD-102                                                   NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT

                                   No. 06-3338
                                ________________

                             CHARLES F. CARDONE,

                                        Appellant

                                          v.

 PAULA RYAN; E. STEPHEN CALLAWAY; ATTORNEY GENERAL; E. SCOTT
BRADLEY; T. HENLEY GRAVES; MELANIE WITHERS; LAWRENCE SULLIVAN;
            JUDGE RICHARD STOKES; MICHAEL R. ABRAM*

                     (*Amended pursuant to order of 7/26/06)
                    ____________________________________

                  On Appeal From the United States District Court
                            For the District of Delaware
                           (D. Del. Civ. No. 06-cv-00177)
                     District Judge: Honorable Kent A. Jordan
                  _______________________________________


          Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
                                  January 19, 2007

    BEFORE: SLOVITER, CHAGARES and NYGAARD, CIRCUIT JUDGES


                             (Filed: February 2, 2007)


                            _______________________

                                    OPINION
                            _______________________

PER CURIAM
       Charles F. Cardone, a Delaware state prisoner proceeding pro se, appeals from the

District Court’s dismissal of his complaint as frivolous pursuant to 28 U.S.C. §§

1915(e)(2)(B) and 1915A(b)(1). 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).

       Cardone filed a complaint under 42 U.S.C. § 1983, alleging that defendants have

“eroded” his due process rights ever since he has “had the misfortune of coming into

contact [with them] through Delaware’s legal system[.]” Such contact was occasioned by

Cardone’s prosecution for and conviction of three crimes, the sentences for which the

Delaware Supreme Court recently affirmed. See generally Cardone v. State, No.

397,2005, 2006 WL 686588 (Del. Mar. 17, 2006). The defendants are all judges or

lawyers, and include the judge who presided over Cardone’s trial (appellee Graves), the

prosecutor (appellee Ryan) and Cardone’s appointed counsel (appellee Abram). Also

named as defendants are two other judges (appellees Bradley and Stokes), the Delaware

Public Defender and a lawyer in his office (appellees Sullivan and Callaway,

respectively), another prosecutor (appellee Withers) and the Delaware Attorney General.

       Cardone alleges that “each defendant” has denied his “numerous requests” and, in

particular, that he “requested motions to be filed, search for evidence to prove [his]

innocence, bail reviews to reduce [his] bail, only to be ignored.” Cardone further alleges

that he has filed disciplinary complaints against appellees Abram and Graves, which were

dismissed. Cardone seeks damages and requests that the District Court “[p]ull the


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defendant’s [sic] licenses” that allow them to “make a mockery of our legal system.”

          Cardone 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).1 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 are in complete agreement with the District Court’s reasons for

dismissing Cardone’s complaint, and our independent review reveals that there is no

arguable basis to challenge them. In particular, for the reasons explained by the District

Court, we agree that the judicial and prosecutorial defendants are immune from this suit,

that Cardone’s counsel and the public defender defendants are not state actors for § 1983

purposes, and that the complaint does not state an actionable claim against the Delaware

Attorney General. We further agree that the complaint states no basis for relief even if it

is liberally construed to challenge the validity of, or seek damages resulting from,

Cardone’s conviction or sentence, and that any amendment of the complaint would be

futile.




   1
       The District Court dismissed Cardone’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).

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