                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 16-1156
                                       ___________

                                    ANDY BUXTON,
                                             Appellant

                                             v.

         IVA C. DOUGHERTY; KATIE A. WYMARD; RICHARD MILLER;
        CHRISTOPHER ANTONUCCI; ROBERT MARSILI; AMBER NOEL;
                              SCOTT SHANK
                   ____________________________________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                         (D.C. Civil Action No. 2-15-cv-01653)
                      District Judge: Honorable Joy Flowers Conti
                      ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   April 11, 2017
             Before: SHWARTZ, COWEN and FUENTES, Circuit Judges

                              (Opinion filed: April 13, 2017)
                                      ___________

                                        OPINION*
                                       ___________

PER CURIAM




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Andy Buxton appeals from an order of the United States District Court for the

Western District of Pennsylvania, which dismissed his complaint for failure to state a

claim upon which relief could be granted. Because we believe that Buxton may have

been able to amend the complaint to cure some of its insufficiencies, we will vacate the

District Court’s order and remand for further proceedings.

       In 2013, numerous criminal charges were filed against Buxton in the Allegheny

County Court of Common Pleas, including criminal use of a communication facility,

manufacture, delivery, or possession with intent to manufacture or deliver a controlled

substance, and participating in corrupt organizations. While these charges were pending,

Buxton filed a civil rights complaint against numerous defendants in the District Court.

Buxton alleged that the criminal charges were based on fabricated evidence and perjured

testimony presented at his preliminary hearing and claimed a violation of his due process

rights. He also claimed that a narcotics agent leaked sealed information to persons at his

place of employment and to others in law enforcement in violation of the “Grand Jury

Secrecy Act.”1 Buxton sought damages and declaratory and injunctive relief.




1
  It is not clear whether Buxton is referring to a state law, as his complaint does not give a
citation for such an act, although perhaps he was referring to 42 Pa. C.S. § 4551(b), or
perhaps Pa. R. Crim. P. 556.10. We are unaware of any private cause of action under
Pennsylvania law for violation of grand jury secrecy. See Pa. R. Crim. P. 556.10(A)(2)
(“A violation of grand jury secrecy rules may be punished as a contempt of court); cf.
Finn v. Schiller, 72 F.3d 1182, 1188 (4th Cir. 1996) (declining to imply right of private
enforcement for violation of federal rule imposing grand jury secrecy). It appears from
Buxton’s brief on appeal that he was attempting to claim that the disclosures violated his
federal due process rights.

                                              2
       The District Court adopted the Magistrate Judge’s report and recommendation to

dismiss the complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) for

failure to state a claim upon which relief may be granted. The District Court ruled that

Buxton’s claims would call into question any conviction he might receive and were thus

barred under Heck v. Humphrey, 512 U.S. 477 (1994).2 The District Court also ruled that

Buxton’s claims for injunctive relief were barred by the abstention doctrine in Younger v.

Harris, 437 U.S. 37 (1971). Finally, the District Court denied Buxton’s motion to

withdraw and dismiss his action, which he filed after the Magistrate Judge issued her

report.3 Buxton timely appealed.

       Our review of the District Court’s dismissal order is plenary. See Allah v.

Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). We review the District Court’s conclusion

that Buxton’s complaint failed to state a claim using the same standard that we use for

Fed. R. Civ. P. 12(b)(6) dismissals. See Allah, 229 F.3d at 223. To pass muster under

Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to

‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This standard is


2
 Under Heck, a claim for damages for an allegedly unconstitutional conviction or
imprisonment requires proof that the conviction has been invalidated. Id. at 486-87.
3
 The District Court denied Buxton’s request, as allowing Buxton to voluntarily withdraw
his complaint might allow him to avoid a dismissal for failure to state a claim, which
would count as a “strike” under the Prison Litigation Reform Act, 28 U.S.C. § 1915(g).
Buxton did not challenge the denial of his motion to withdraw and dismiss in his brief
here, so he has waived any challenge to that aspect of the order. See Voci v. Gonzales,
409 F.3d 607, 610 n.1 (3d Cir. 2005).

                                              3
met “when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id.

       If the complaint does not meet the pleading standard, the District Court should

allow the plaintiff to amend the complaint, unless amendment would be inequitable or

futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). Here, the

District Court, citing our decision in Smith v. Holtz, 87 F.3d 108, 113 (3d Cir. 1996),

concluded that Buxton’s claims were barred by Heck even though his criminal charges

were still pending; thus, the Court concluded that amendment would be futile. But since

Smith, the United States Supreme Court clarified in Wallace v Kato, 549 U.S. 384

(2007), “that the Heck bar is applicable only when, at the time the § 1983 suit would

normally accrue, there is an existing criminal conviction . . . .” Dique v. New Jersey

State Police, 603 F.3d 181, 187 (3d Cir. 2010) (emphasis in original).

       We take judicial notice, however, that Buxton’s conviction is now final. See

Docket Sheet, Commonwealth v. Buxton, No. CP-02-CR-0012834-2013. Buxton was

acquitted of one charge, four charges were nolle prossed, and the jury found Buxton not

guilty of six charges, but the jury also found him guilty of eleven charges.4 Heck would

now bar any claim for damages that would impugn his conviction. See Wallace, 549

U.S. at 394; see also Williams v. Schario, 93 F.3d 527, 529 (8th Cir. 1996) (judgment in

plaintiff’s favor on damages claims that defendants presented perjured testimony at

preliminary hearing “would necessarily imply the invalidity of his conviction”) (internal


4
 He was sentenced on July 14, 2016, to five to ten years in prison, followed by
probation. The docket does not reflect that Buxton filed any appeal. Id.
                                             4
quotation marks omitted). But because Buxton was not convicted of all of the charges,

he might be able to meet the favorable termination requirement. See Kossler v. Crisanti,

564 F.3d 181, 188 (3d Cir. 2009) (en banc) (“[T]he favorable termination of some but not

all individual charges does not necessarily establish [or disestablish] the favorable

termination of the criminal proceeding as a whole.”).

       In Kossler, we held that a plaintiff who had been convicted of disorderly conduct

but acquitted of aggravated assault and public intoxication did not satisfy the favorable

termination requirement. Id. at 183. But “we [did] not hold that there is never favorable

termination unless a plaintiff is acquitted of all charges.” Id. at 192. We noted, for

example, that in cases in two other courts of appeals “those courts allowed malicious

prosecution claims to proceed despite the plaintiffs’ convictions on some but not all of

the charges.” Id. at 190 (discussing Janetka v. Dabe, 892 F.2d 187 (2d Cir. 1989), and

Uboh v. Reno, 141 F.3d 1000 (11th Cir. 1998)). We distinguished those cases because

unlike the case in Kossler, “the charges for which the plaintiff[s] [were] convicted and

the charges which were dismissed aimed to punish separate conduct.” Id. at 191.

       Given the vagueness of Buxton’s complaint (his complaint does not explain what

evidence or testimony was fabricated or perjured), the mixed disposition after trial,5 and

the varied crimes for which he was tried, it is not clear whether Buxton can meet the

favorable termination requirement with respect to the claims in his complaint. But if any

5
  A disposition of “nolle prossed” may or may not satisfy the requirements of favorable
termination. See Hilfirty v. Shipman, 91 F.3d 573, 579-80 (3d Cir. 1996) (discussing
adequacy of grant of nolle prosequi for satisfying favorable termination requirement for
malicious prosecution claim).

                                             5
claim, even if successful, would not show the invalidity of Buxton’s criminal judgment, it

should be allowed to proceed. See Heck, 512 U.S. at 487; see also Kossler, 564 F.3d at

190-92.

         We will thus vacate the District Court’s decision and remand so that the District

Court can give Buxton a chance to amend his complaint to show that his claims for

damages should not be barred by Heck.6 We note that if, after amendment, the District

Court holds that the complaint is barred by Heck, the dismissal should be without

prejudice, in case Buxton is later able to overturn his conviction. See Curry v. Yachera,

835 F.3d 373, 379 (3d Cir. 2016).7




6
  To the extent that Buxton sought to enjoin his criminal prosecution, the District Court’s
abstention was proper. See Sprint Commc’ns v. Jacobs, 134 S. Ct. 584, 588 (2013)
(“When there is a parallel, pending state criminal proceeding, federal courts must refrain
from enjoining the state prosecution.”). Moreover, there was no indication in Buxton’s
complaint that the extraordinary circumstances that might render Younger abstention
improper were present here. See Port Auth. Police Benev. Ass’n, Inc. v. Port Auth. of
N.Y. & N.J. Police Dep’t, 973 F.2d 169, 176 (3d Cir. 1992).
7
    Buxton’s motions for appointment of counsel and to expand the record are denied.
                                              6
