                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-9-2007

Lopez v. Howard
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2361




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"Lopez v. Howard" (2007). 2007 Decisions. Paper 1501.
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                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                       NO. 06-2361
                                    ________________

                                    JOHNNY LOPEZ,

                                                  Appellant

                                             v.

         CATHY L. HOWARD; LISA A. SEMANS; STATE OF DELAWARE

                       ____________________________________

                     On Appeal From the United States District Court
                                For the District of Delaware
                               (D.C. Civ. No. 06-cv-00107)
                       District Judge: Honorable Gregory M. Sleet
                     _______________________________________


                       Submitted Under Third Circuit LAR 34.1(a)
                                    March 8, 2007

           Before: SLOVITER, MCKEE AND AMBRO, CIRCUIT JUDGES

                                  (Filed: March 9, 2007)

                               _______________________

                                      OPINION
                               _______________________

PER CURIAM

       Johnny Lopez, a prisoner at the Delaware Correctional Center, appeals an order of

the United States District Court for the District of Delaware dismissing his civil rights
complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b)(1). For the following

reasons, we will affirm.

       Lopez instituted this action against the State of Delaware and two state judicial

employees alleging that the defendants violated his constitutional right of access to the

courts. Lopez alleges that members of the Delaware Supreme Court’s administrative staff

deliberately frustrated his efforts to obtain appellate review of his drug convictions. In

support of this claim, Lopez points out that the Delaware Supreme Court’s opinion

affirming his conviction does not address every argument that he raised in his filings with

the Court. He also argues that the lack of a signature on the opinion and the Court’s

denial of his motion for a signature is evidence that the opinion is a forgery. He requests

monetary and injunctive relief.1

       We have jurisdiction under 28 U.S.C. § 1291. Our review of the District Court’s

dismissal is plenary. See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). We must

“accept as true all well-pled factual allegations . . . [and] examine whether, under any

reasonable reading of the complaint, the plaintiff may be entitled to relief.” Delaware

Nation v. Pennsylvania, 446 F.3d 410, 415 (3d Cir. 2006) (citations omitted). Because

Lopez is proceeding pro se, we must liberally construe his pleadings. See Dluhos v.



   1
     Lopez also attacks the validity of his conviction. We note that such a challenge may
be brought in federal court only via a petition for a writ of habeas corpus. See Leamer v.
Fauver, 288 F.3d 532, 540-42 (3d Cir. 2002). Lopez has already filed a federal habeas
petition, and an appeal of the District Court’s denial of habeas relief is pending before this
Court (3d Cir. No. 06-3758).

                                              2
Strasberg, 321 F.3d 365, 369 (3d Cir. 2003). In evaluating the sufficiency of the

complaint, we may take judicial notice of official court records for the purpose of

ascertaining whether an allegedly “lost” claim was actually litigated. See In re Indian

Palms Associates, Ltd., 61 F.3d 197, 205 (3d Cir. 1995); Kramer v. Time Warner Inc.,

937 F.2d 767, 774 (2d Cir. 1991).

       First, we take judicial notice of records from the Delaware Supreme Court that

contradict Lopez’s perfunctory allegations that members of the Court’s administrative

staff deliberately concealed his filings from the judges. We note that the Delaware

Supreme Court docket sheet lists all the submissions that Lopez claims to have sent to

that Court. Moreover, the Delaware Supreme Court expressly stated in its opinion that it

had “reviewed the record carefully” prior to denying Lopez’s appeal. Lopez v. State, 861

A.2d 1245, 1251 (Del. 2004). Even if we disregard these official documents and accept

the allegations of official misconduct as true, the complaint still fails to state a denial of

access claim because there is no indication that Lopez was precluded from asserting a

non-frivolous claim. See Christopher v. Harbury, 536 U.S. 403, 414-16 (2002).

Although Lopez claims that the Delaware Supreme Court never addressed his challenge

to the legality of the state’s search and seizure and the sufficiency of the evidence

supporting his conviction, the Court’s opinion indicates that these claims were analyzed

on the merits. See Lopez, 861 A.2d at 1248-50.

       We also reject Lopez’s inference regarding the significance of the Delaware

Supreme Court’s issuance of an unsigned opinion. Lopez does not cite, and we are

                                               3
unable to locate, any provision under Delaware law that entitles an appellant before the

Delaware Supreme Court to a signed opinion.

       For the foregoing reasons, we conclude that Lopez has failed to state a claim on

which relief may be granted. Accordingly, we will affirm the District Court’s dismissal

of the complaint.




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