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


10-7-2005

McDaniel v. Turnbach
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2801




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Recommended Citation
"McDaniel v. Turnbach" (2005). 2005 Decisions. Paper 440.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/440


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BPS-371                                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                   NO. 05-2801
                     ______________________________________

                               MICHAEL P. MCDANIEL,
                                          Appellant

                                              v.

                               EDWARD J. TURNBACH;
                                   PETER J. GIOVINE,
                      Individually and in their/his official capacity,
                    as Justice of the Superior Court of Ocean County
                     ______________________________________

                    On Appeal From the United States District Court
                           For the District of New Jersey
                            (D.C. Civ. No. 03-cv-04740)
                           District Judge: Mary L. Cooper
                    _______________________________________

           Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
                                  September 15, 2005

     Before: RENDELL, FISHER AND VAN ANTWERPEN, CIRCUIT JUDGES

                                 (Filed: October 7, 2005)
                                ____________________

                                      OPINION
                                ____________________


PER CURIAM

      Appellant Michael P. McDaniel, a state prisoner proceeding pro se, appeals the

May 20, 2005, order of the United States District Court for the District of New Jersey
dismissing his complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). For the reasons that

follow, we will dismiss the appeal as frivolous. See 28 U.S.C. § 1915(e)(2)(B); see also

Neitzke v. Williams, 490 U.S. 319, 325 (1989).

       In 2000, McDaniel was charged with two counts of second-degree robbery by

separate indictments in Ocean County, New Jersey. McDaniel’s case was initially

assigned to Superior Court Judge Giovine, who set bail at $50,000.00. According to his

complaint, after McDaniel filed a motion to recuse Judge Giovine, his case was

reassigned to Superior Court Judge Turnbach. In 2001, McDaniel was convicted by a

jury of one count of second-degree robbery, and pled guilty to one count of second-degree

robbery. McDaniel was sentenced in August 2001, and has since been incarcerated at the

New Jersey State Prison in Trenton.

       In October 2003, McDaniel submitted the underlying complaint pursuant to 42

U.S.C. § 1983 in the District Court. In his complaint, McDaniel alleged that Judges

Giovine and Turnbach violated his Fourth, Fifth, Sixth, Eighth, and Fourteenth

Amendment rights during his 2000 and 2001 criminal proceedings. McDaniel sought

equitable relief, asking the District Court to enter an order deciding whether: (1) his

extended term sentence is appropriate, he is a habitual offender, and his guilty plea was

knowing and intelligent; and (2) Judges Giovine and Turnbach admitted “tainted”

evidence because of racial bias.

       In an order entered on May 20, 2005, the District Court sua sponte dismissed



                                              2
McDaniel’s complaint pursuant to § 1915(e)(2)(B). First, insofar as McDaniel was

attempting to challenge the fact or duration of his conviction or sentence, the District

Court concluded that his sole remedy is a federal petition for writ of habeas corpus. See

Preiser v. Rodriguez, 411 U.S. 475, 488-90 (1973). The District Court next explained

that, to the extent that McDaniel’s claims “would necessarily imply the invalidity of his

conviction or sentence, they are barred by Heck v. Humphrey, 512 U.S. 477, 487 (1994).

Finally, the District Court concluded that even if McDaniel’s complaint could be read as

asserting a claim for damages against Judges Giovine and Turnbach, dismissal would be

appropriate because they are absolutely immune from suit for damages under § 1983

when they act in a judicial capacity. See Stump v. Sparkman, 435 U.S. 349, 356-57

(1978). This timely appeal followed.

       This Court has jurisdiction pursuant to 28 U.S.C. § 1291. McDaniel has been

granted leave to proceed in forma pauperis on appeal. When an appellant proceeds in

forma pauperis, this Court must dismiss the appeal if it is “frivolous.” 28 U.S.C.

§ 1915(e)(2)(B). A frivolous appeal has no arguable basis in law or fact. Neitzke, 490

U.S. at 325. After a careful review of the record, we will dismiss this appeal as frivolous

because McDaniel’s claims lack merit for the reasons fully explained in the District

Court’s comprehensive opinion.




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