DLD-444                                                      NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              ___________

                                   No. 13-3115
                                   ___________

                                 DAVID LUSICK,
                                           Appellant

                                         v.

          CITY OF PHILADELPHIA; JUDGE JACQUELINE ALLEN;
        JOSEPH H. EVERS, Prothonotary; ELIZABETH JOBES, A.D.A.;
    CHARLES PELLETREAU; DISTRICT ATTORNEY OF PHILADELPHIA;
      JUDGE SANDRA MAZER MOSS; DAVID WASSONIII CHARLES;
  NORMA MONTE, Motions Clerk; DAVID O'CONNOR; HEATHER KOVACK;
   STEPHANIE VOGLER, Deputy Prothonotary; KOVAK; ZYGMONT PINES;
           HUGH J. BURNS; ATTORNEY GENERAL OFFICE PA;
    ATTORNEY GENERAL PENNSYLVANIA; JUDGE LEGROME DAVIS;
        CLERK MICHAEL KUNZ; LYNN H. PELLETREAU, Civ. Mgr.
                 ____________________________________

                  On Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                            (D.C. Civil No. 12-cv-05150)
                  District Judges: Honorable Matthew W. Brann
                                   Honorable Martin T. Carlson
                   ____________________________________

          Submitted for Possible Dismissal Due to Jurisdictional Defect, or
           Pursuant to 28 U.S.C. § 1915(e)(2)(B), or for Summary Action
                Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                  October 3, 2013

            Before: AMBRO, SMITH and CHAGARES, Circuit Judges

                          (Opinion filed: October 9, 2013)
                                        _________

                                        OPINION
                                        _________

PER CURIAM

       David Lusick appeals from orders entered in his civil rights action filed in the

United States District Court for the Eastern District of Pennsylvania. We will dismiss the

appeal as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).

       We must first address our jurisdiction to entertain this appeal. We have

jurisdiction over appeals from all final decisions of the district courts. 28 U.S.C. § 1291.

Lusick filed his notice of appeal after a Magistrate Judge recommended that the District

Court dismiss his complaint without prejudice and after he denied Lusick’s motion to

clarify the case status and correct the caption. However, neither the Magistrate Judge’s

recommendation nor the order denying Lusick’s motion is a final, appealable order under

§ 1291. See Siers v. Morrash, 700 F.2d 113, 115 (3d Cir. 1983).

       Soon after Lusick filed his notice of appeal, the District Court entered a final order

adopting the Magistrate Judge’s report, rejecting the recommendation, and dismissing the

complaint as frivolous pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i) and 1915A(b)(1). But

Lusick’s appeal from the Magistrate Judge’s recommendation and order did not ripen

upon entry of the final order. Perez-Priego v. Alachua County Clerk of Court, 148 F.3d

1272, 1273 (11th Cir. 1998); Serine v. Peterson, 989 F.2d 371, 372-73 (9th Cir. 1993).

Thus, in an order entered July 31, 2013, our Clerk noted that the District Court had

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entered an order dismissing the action on June 21, 2013, and reminded Lusick that he

would need to file a new notice of appeal in the District Court if he sought review of that

District Court order.

       Although the District Court docket does not reflect a second notice of appeal, the

docket does reflect a ”motion” dated August 3, 2013, which states, among other things,

“On August 3, 2013 Plaintiff filed direct appeal and recusal of Judge Matthew W Brann

and Magistrate Martin T Carlson.” This statement reflects a clear intent to appeal the

final order. Further, a few days earlier, Lusick filed in our Court a document titled

“Proposed Order,” captioned with the names of our Court and the District Court, and

dated August 1, 2013, in which he asked for recusal of Judge Brann and Magistrate Judge

Carlson and stated that he was appealing the June 21, 2013, order of the District Court,

the earlier Magistrate Judge’s order of June 12, 2013, and the District Court’s order of

July 25, 2013. While it does not appear to have been filed in the District Court, the

“Proposed Order” could also be construed as a Notice of Appeal. We thus have

jurisdiction to consider the merits of Lusick’s appeal. Hindes v. FDIC, 137 F.3d 148, 156

(3d Cir. 1998) (document filed by litigant, regardless of its title, within the time for

appeal under Fed. R. App. P. 4, is effective as notice of appeal provided that it gives

sufficient notice of party’s intent to appeal); Fed. R. App. P. 4(d).1


1
  Because Lusick filed, among other things, a timely motion for reconsideration of the
District Court’s June 21, 2013 order, the time to appeal from that order was tolled until
the District Court denied the motion for reconsideration. Fed. R. App. P. 4(a)(4); United
States v. Fiorelli, 337 F.3d 282, 288 (3d Cir. 2003). Because Lusick’s second appeal was
                                               3
       We turn first to Lusick’s challenge to the authority of the Magistrate Judge in this

action. Pursuant to 28 U.S.C. § 636(b)(1)(A) & (B), a magistrate judge may hear and

determine pretrial matters, and also may make recommendations on the disposition of

motions for injunctive relief. Contrary to Lusick’s argument, a magistrate judge’s

authority under subsection (b) does not depend on the “consent of the parties.” Cf.

§ 636(c)(1) (magistrate judge my conduct any or all proceedings in civil matter “[u]pon

the consent of the parties”). The Magistrate Judge here acted properly within his

statutory authority. See Order, dkt. #29.

       We now consider the Magistrate Judge’s Report, as adopted by the District Court.

We agree with the District Court that Lusick’s complaint is frivolous, for the many

reasons given by the Magistrate Judge.2 In particular, to the extent we can decipher



filed well within the time to appeal from the order denying reconsideration, we have
jurisdiction to consider both District Court orders.
2
  We agree with the Magistrate Judge that: (1) the complaint violates Rule 8 of the
Federal Rules of Civil Procedures; (2) Lusick is estopped from relitigating claims that
were already dismissed for lack of merit; (3) Lusick is barred by Heck v. Humphrey, 512
U.S. 477 (1994), from raising certain claims arising from his criminal case; (4) the
Rooker-Feldman doctrine bars his claims to the extent he seeks review of a completed
state court adjudication; (5) his claims are barred by Younger v. Harris, 401 U.S. 37
(1971), to the extent his claims involve ongoing state proceedings of a judicial nature that
implicate important state interests, and where those proceedings afford him an
opportunity to litigate his federal claims; (6) the judges and judicial staff named as
defendants are entitled to immunity; (7) the prosecutors named as defendants are entitled
to immunity, see Imbler v. Pachtman, 424 U.S. 409, 427 (1976); (8) the victims of his
crime cannot be sued in a civil rights action as they are not state actors, see Lazardis v.
Wehmer, 591 F.3d 666, 672 (3d Cir. 2010); (9) his claims against agency supervisors fail
to show personal involvement in the alleged wrongdoing, see Rode v. Dellarciprete, 845
F.2d 1195, 1207 (3d Cir. 1988); (10) the Eleventh Amendment bars his claims against the
                                             4
Lusick’s prolix complaint, it appears that the only factual allegations within the period of

limitations3 concern actions or inactions by state and federal judicial defendants and their

staff members. As the Report indicated, those defendants are immune from suit. See

Stump v. Sparkman, 435 U.S. 349, 356 (1978) (judges immune from suit unless they act

in complete absence of jurisdiction); Gallas v. Sup. Ct. of Pa., 211 F.3d 760, 773 (3d Cir.

2000) (court personnel entitled to quasi-judicial immunity for alleged acts pursuant to

judge’s instructions). While a district court generally should give a plaintiff an

opportunity to file an amended complaint to correct defects in his complaint, we agree

with the District Court that amendment here would have been futile. See In re Burlington

Coat Factory Sec. Litig., 114 F.3d 1410, 1434-35 (3d Cir. 1997).4 Thus, we do not find

that the District Court erred in dismissing the complaint as frivolous, and we will




Commonwealth of Pennsylvania and the Pennsylvania Office of the Attorney General,
see Benn v. First Judicial Dist. of Pa., 426 F.3d 233, 236 (3d Cir. 2005); and (11) his
claims against the City of Philadelphia fail to show personal involvement of defendants
and fail to indicate any policy or custom that caused a constitutional violation, see Monell
v. Dep’t Soc. Serv., 436 U.S. 658, 694 (1978).
3
 “The statute of limitations for a § 1983 claim arising in Pennsylvania is two years.”
Kach v. Hose, 589 F.3d 626, 634 (3d Cir. 2009). We note that many of the earlier
allegations in Lusick’s complaint appear to be an attempt to relitigate claims from an
earlier unsuccessful lawsuit. See Lusick v. Lawrence, 378 F. App’x 118 (3d Cir. 2010).
4
  Even if the Defendants were not immune from liability, Lusick’s complaint, which
seems to allege that nearly everything he filed in state court was “either destroyed, not
filed and or not processed” borders on the fanciful. See Denton v. Hernandez, 504 U.S.
25, 32-33 (1992).

                                              5
similarly dismiss the appeal as frivolous.5

       For the foregoing reasons, we will dismiss the appeal pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(i).6




5
 To the extent Lusick appeals from the District Court’s July 25, 2013 order, we find no
error in the District Court’s denial of Lusick’s many motions, as those that were not moot
were frivolous.
6
 Lusick has continued in this Court his practice of filing numerous frivolous motions.
All outstanding motions filed by both parties are hereby denied.
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