                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-20-2005

Ruth v. Richard
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2892




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Recommended Citation
"Ruth v. Richard" (2005). 2005 Decisions. Paper 809.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/809


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DPS-210                                                   NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT

                                  NO. 04-2892
                               ________________

                             ANTHONY RUTH, SR.,

                                         Appellant

                                          v.


                         HEATHER RICHARD;
                COMMONWEALTH OF PENNSYLVANIA;
            YORK COUNTY ADULT PROBATION DEPARTMENT;
                          JOHN S. KENNEDY;
                           WILLIAM GRAFF
                 ____________________________________

                  On Appeal From the United States District Court
                      For the Middle District of Pennsylvania
                             (D.C. Civ. No. 04-cv-00760)
                   District Judge: Honorable Thomas I. Vanaskie
                  _______________________________________


Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B) or Summary Action
                   Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                  April 28, 2005

                Before: ROTH, BARRY and SMITH, Circuit Judges

                               (Filed July 20, 2005)


                           _______________________

                                   OPINION
                           _______________________
PER CURIAM

       Anthony Ruth, pro se, appeals an order of the United States District Court for the

Middle District of Pennsylvania dismissing his 42 U.S.C. § 1983 complaint as frivolous

pursuant to 28 U.S.C. § 1915A(b)(1). We will summarily affirm.

       In 2002, Ruth pleaded guilty to possession with intent to distribute marijuana and

was sentenced to twenty-three months’ restricted intermediate punishment under the

supervision of probation officer Dave Weigle. After four months, defendant Heather

Richard replaced Weigle as Ruth’s probation officer.

       Ruth admitted that, while he was on probation, he thrice tested positive for illegal

drugs, twice smoked marijuana and once tested at a 0.96 blood alcohol level. He was

unable to obtain employment and incurred a new charge of driving while his license was

suspended. Ruth also failed to appear for scheduled appointments with his probation

officer. In February 2004, pursuant to Richard’s petition for imposition of punishment

for violating probationary conditions, Ruth was sentenced to eleven and one-half to

twenty-three months’ imprisonment.

       In April 2004, while he was an inmate at the York County Prison, Ruth filed the

instant complaint. He claimed that the defendants violated his due process rights and

Sixth Amendment rights and subjected him to double jeopardy by revoking his probation

and ordering him to serve time without counting the time he had spent on probation. He

claims that such an action violated the terms of his plea agreement. For relief, Ruth



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sought immediate release with a “total discharge from conviction,” compensatory

damages for breach of the plea agreement and punitive damages.

       The District Court noted that, to the extent Ruth sought release, he was required to

do so by means of a habeas petition. See 28 U.S.C. § 2254; Preiser v. Rodriguez, 411

U.S. 475, 500 (1973). With respect to Ruth’s claims for damages, the District Court

concluded that they were legally frivolous because, pursuant to Heck v. Humphrey, 512

U.S. 477 (1994), until Ruth has had his conviction invalidated, no civil action lies for

damages. The District Court further concluded that, with respect to Judge Kennedy and

District Attorney Graff, even if Ruth had a cause of action, the defendants were immune

from suit. The District Court, therefore dismissed Ruth’s complaint pursuant to §

1915A(b)(1). Ruth timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291.

       We agree with the District Court’s dismissal of Ruth’s claims for the reasons

discussed in the District Court’s memorandum and summarized above.

       Summary action is appropriate if there is no substantial question on appeal. See

Third Circuit LAR 27.4. For essentially the reasons set forth by the District Court, we

will summarily affirm the District Court’s order dismissing Ruth’s complaint. See Third

Circuit I.O.P. 10.6.




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