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


8-19-2005

Mensah v. Darby Pol Dept
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2193




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Recommended Citation
"Mensah v. Darby Pol Dept" (2005). 2005 Decisions. Paper 674.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/674


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DPS-278                                                       NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                       NO. 05-2193

                                CAROLYN R. MENSAH,
                                   a/k/a Carol Allen,

                                                       Appellant
                                             v.

                      DARBY BOROUGH POLICE DEPARTMENT
                               _______________

                      On Appeal From the United States District Court
                          For the Eastern District of Pennsylvania
                                (D.C. Civ. No. 05-cv-01163)
                          District Judge: Honorable Marvin Katz
                      _______________________________________

                        Submitted Under 28 U.S.C. § 1915(e)(2)(B)
                                     June 16, 2005

               Before: ROTH, BARRY AND SMITH, CIRCUIT JUDGES

                                 (Filed August 19, 2005)
                               _______________________

                                       OPINION
                               _______________________

PER CURIAM

       Appellant Carolyn Mensah, a/k/a Carol Allen, appeals from the dismissal of her

complaint as frivolous. The appeal is frivolous and we will dismiss pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(i).

       On March 15, 2005, Mensah filed a three-page complaint under 42 U.S.C. § 1983
alleging that the Darby Police Department is retaining fictitious criminal information on

both her and her sons. Additionally, she claims that this information has led to the use of

aircraft and other devices for surveillance purposes. Mensah seeks an injunction

compelling the Darby Police to expunge whatever records they may have with references

to some incident occurring on May 20, 1989, and we surmise, an injunction prohibiting

the alleged surveillance. In a one-sentence order, the District Court dismissed the

complaint as frivolous. Mensah appealed.

       We have jurisdiction under 28 U.S.C. § 1291. We will dismiss an appeal as

frivolous under § 1915(e)(2)(B) when it is lacking in arguable legal merit. We exercise

plenary review over the dismissal of a complaint. Oran v. Stafford, 226 F.3d 275, 281 n.2

(3d Cir. 2000). Here, even if we accepted the complaint as true, the filing of false

information states a claim for libel or defamation, a state law tort, not a constitutional

violation. See generally Bd. of Regents v. Roth, 408 U.S. 564 (1972) (requiring a

deprivation of either property or liberty to assert a due process claim); Paton v. La Prade,

524 F.2d 862, 869-71 (3d Cir. 1975) (involving a First Amendment challenge to the

collection and maintenance of records). Even if it were a constitutional violation, Mensah

would likely now be time-barred. See 42 Pa. Cons. Stat. Ann. §§ 5523(1), 5524(7).

Similarly, harassment alone does not amount to a constitutional violation. Even assuming

arguendo that Mensah could show that her claim states a violation, the Darby Police

would be immune because to succeed under § 1983, the violated right must be “clearly

established.” See Carswell v. Borough of Homestead, 381 F.3d 235, 241-42 (3d Cir.
2004). Mensah cannot make this showing.

      For the foregoing reasons, the appeal is frivolous. Accordingly, we will dismiss.
