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


10-6-2005

Walker v. Fisher
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1437




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Recommended Citation
"Walker v. Fisher" (2005). 2005 Decisions. Paper 446.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/446


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EPS-51                                      NOT PRECEDENTIAL

            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT

                           NO. 05-1437

                         ________________

                        EDWIN WALKER,

                                Appellant

                                 v.

                 MICHAEL FISHER, INDIVIDUALLY
                   AND AS ATTORNEY GENERAL;
                PATRICK LEONARD, INDIVIDUALLY
                     AND AS SPEC. PROSECUTOR;
                  JACK SHARKEY, INDIVIDUALLY
                    AND AS TASK FORCE AGENT;
                   JAMES AVERY, INDIVIDUALLY
                    AND AS TASK FORCE AGENT;
                 PAUL J. ROBERTS, INDIVIDUALLY
                  AND AS JUSTICE OF THE PEACE;
                      PETER PAUL OLSZEWSKI;
                 DAVID LUPAS, LUZERNE COUNTY
         DISTRICT ATTORNEY IN THEIR OFFICIAL CAPACITY;
                  THOMAS GATES, INDIVIDUALLY
                  AND IN HIS OFFICIAL CAPACITY
                  AS JUDGE OF DAUPHIN COUNTY;
              JOSEPH AUGELLO, HON., INDIVIDUALLY
          AND AS PRESIDENT JUDGE OF LUZERNE COUNTY;
            PATRICK J. TOOLE, JR., HON., INDIVIDUALLY
               AND AS JUDGE OF LUZERNE COUNTY;
           WILLIAM GUZZI, INMATE, INDIVIDUALLY AND
             IN HIS INDIVIDUAL CAPACITY AS INMATE
              ALL SUED IN THEIR INDIVIDUALLY AND
                    IN THEIR OFFICIAL CAPACITY

               ____________________________________
                     On Appeal From the United States District Court
                         For the Eastern District of Pennsylvania
                                (D.C. Civ. No. 01-cv-00578)
                      District Judge: Honorable Eduardo C. Robreno
                     _______________________________________

           Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
                                SEPTEMBER 26, 2005

             Before: SLOVITER, ROTH AND NYGAARD, Circuit Judges.

                                  (Filed: October 6, 2005)

                                _______________________

                                        OPINION
                                _______________________

PER CURIAM

       Appellant, Edwin Walker, appeals from the orders of the District Court for the

Eastern District of Pennsylvania granting judgment in the defendants’ favor and

dismissing his civil rights action for false arrest, false imprisonment, excessive use of

force, and malicious prosecution.

       The background and travel of this case is well-known to the parties, and thus, we

need only provide a summary here. Walker was arrested on March 13, 1998, and

convicted in Luzerne County Pennsylvania of multiple controlled substance charges. He

is currently serving a sentence of imprisonment in a state correctional facility. On

February 5, 2001, Walker filed a civil rights complaint claiming that he was illegally

convicted. He alleged that all of the defendants conspired to violate his constitutional



                                              2
rights by arresting him without probable cause, by searching his home without a warrant,

and by allowing a Commonwealth witness, William Guzzi, to present perjured testimony

to the jury.1 He also alleged that one of the defendants, Task Agent Avery, used

excessive force in effecting Walker’s arrest. Walker sought damages.

       On July 15, 2002, and May 5, 2003, respectively, the District Court dismissed for

failure to state a claim under Fed. R. Civ. P. 12(b)(6), all claims against judges Augello,

Toole, Gates, and Roberts as barred by the doctrine of judicial immunity and all claims

against prosecutorial defendants Lupas and Olszewski as barred by the doctrine of

prosecutorial immunity. On September 2, 2003, the District Court dismissed all claims

against Commonwealth defendants former Attorney General Fisher, Deputy Attorney

General Leonard, and Task Agent Starkey, on several grounds. First, the District Court

held that absent any evidence that Walker’s conviction was invalidated, his complaint for

damages was not cognizable under Heck v. Humphrey, 512 U.S. 477 (1994). But the

District Court also held that Walker’s claims against Fisher and Sharkey failed under

Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988), because none of the

allegations supported an inference that they were personally involved. The District Court

also found that prosecutorial immunity barred suit against Leonard. Finally, the District

Court denied Task Agent Avery’s motion to dismiss Walker’s excessive use of force




       1
       The District Court severed Walker’s action against Guzzi on November 12,
2003. See Walker v. Guzzi, Civ. A. No. 03-06193.

                                              3
claim.

         Both Walker and Avery moved for summary judgment. Avery contended that the

excessive force claim was barred by the statute of limitations. The District Court denied

Walker’s motion and granted summary judgment in Avery’s favor on January 24, 2005,

holding that the complaint was time-barred and that equitable tolling was not warranted.

Walker timely appealed.

         We have jurisdiction pursuant to 28 U.S.C. § 1291. Walker has been granted leave

to proceed IFP on appeal. Because his appeal lacks arguable merit, we will dismiss it

pursuant to § 1915(e)(2)(B)(I). See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000).

         Substantially for the same reasons set forth by the District Court, we conclude that

Walker’s civil rights complaint was properly dismissed for failure to state a claim upon

which relief can be granted and that the District Court properly entered judgment in

Avery’s favor pursuant to Fed. R. Civ. P. 56. Assuming in Walker’s favor that his false

arrest/imprisonment claim is not barred by Heck, the claim is barred, in any event, by the

statute of limitations. See Montgomery v. DeSimone, 159 F.3d 120, 126 (3d Cir. 1998).

Here, because Heck’s deferred accrual rule does not apply, Walker’s Fourth Amendment

claim accrued on the day that he was arrested, March 13, 1998. Under the applicable two

year statute of limitations, Pa. Cons. Stat. Ann. § 5524, Walker had until March 2000 to

file a timely complaint. The complaint was filed in February 2001, well after the

limitations period had expired.



                                               4
      Accordingly, the appeal will be dismissed. Walker’s motions for appointment of

counsel and for entry of judgment of default are denied.




                                         5
