GLD-057 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-3572

___________

MARCUS L. WALLACE,

Appellant

v.

COREY FEGAN; COUNTY OF FRANKLIN

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil No. 3-10-cv-01338)

District Judge: Honorable Edwin M. Kosik

____________________________________

Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)

or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

December 1, 2011

Before: FUENTES, GREENAWAY, JR. and STAPLETON, Circuit Judges

(Opinion filed: December 16, 2011)

_________

OPINION

_________

PER CURIAM
2

The appellant, Marcus L. Wallace, is a state pretrial detainee, currently housed at 

the Franklin County Jail in Chambersburg, Pennsylvania.1 Proceeding pro se, he filed 

suit in the United States District Court for the Middle District of Pennsylvania, alleging 

that four named defendants—Officer Corey M. Fegan, Judge Gary Carter, the 

Chambersburg Police Department, and Franklin County—had violated his constitutional 

rights in connection with his arrest and prosecution thus far. Having identified at length 

several deficiencies in the complaint, the presiding Magistrate Judge granted Wallace 

leave to amend to forestall a recommendation of dismissal. See Order, ECF No. 13. 

Wallace failed to comply with the Magistrate Judge‘s requirements as to the form of his 

amended complaint, but was granted additional leave to amend to correct this 

shortcoming. See Order, ECF No. 17. 

Wallace then filed the operative amended complaint, ECF No. 19; a discursive 

document invoking numerous causes of action and multiple claims for relief, the 

amended complaint appeared primarily to challenge the validity of Wallace‘s arrest and

the state court‘s denial of bail, although it also requested, inter alia, a gag order against 

the news media to ―prohibit access to publication of any information in relation to‖ the 

ongoing criminal case. The Magistrate Judge concluded that this complaint fared no 

better than the previous iterations, recommending dismissal, ECF No. 20; the District 

 

1

The docket number for the relevant consolidated criminal action is CP-28-CR-0000213-

2010. We note that Wallace has separately challenged his state pretrial detention—often 

incorporating many of the same basic issues he raises in the present case—through writs 

of habeas corpus, mandamus, and prohibition. See, e.g., Wallace v. Commonwealth of 

Pa., No. 10-4081 (order entered Jan. 28, 2011); In re Wallace, 405 F. App‘x 582 (3d Cir. 

2011).
3

Court agreed and, overruling Wallace‘s objections, adopted the Report and 

Recommendation and dismissed the case pursuant to 28 U.S.C. § 1915A. Wallace then 

filed numerous motions under a variety of captions, all of which were dismissed or 

denied by the District Court. One such filing, captioned ―Petition for Writ of Certiorari‖ 

and filed on September 7, 2011, see ECF No. 45, was construed as a notice of appeal.

We have jurisdiction under 28 U.S.C. § 1291,

2

and conduct plenary review of 

dismissals pursuant to 28 U.S.C. § 1915A. See Tourscher v. McCullough, 184 F.3d 236, 

240 (3d Cir. 1999). Pleadings and other submissions by pro se litigants are subject to 

liberal construction, see Higgs v. Att‘y Gen., 655 F.3d 333, 339 (3d Cir. 2011), and we 

 

2

The District Court‘s order dismissing the case was issued on November 15, 2010. 

While it was independently captioned and contained neither reasoning nor factual 

recitation, it was nonetheless docketed alongside and paginated consecutively to the 

District Court‘s memorandum. In LeBoon v. Lancaster Jewish Community Center 

Association, 503 F.3d 217 (3d Cir. 2007), we discussed the formal requirements for an 

―independent‖ document under Fed. R. Civ. P. 58(a) (a.k.a. the ―Separate Judgment 

Rule‖), explaining: ―To be independent of the court‘s opinion, an order must be 

separately titled and captioned, not paginated consecutively to the opinion or 

memorandum, not stapled or otherwise attached to the opinion, and must be docketed 

separately.‖ Id. at 224. Mechanically applying the mandates of Rule 58, see United 

States v. Indrelunas, 411 U.S. 216, 221–22 (1973) (per curiam), we conclude that the 

November 15 order was not in compliance with the Separate Judgment Rule. Hence, 

pursuant to Fed. R. Civ. P. 58(c)(2)(B), judgment was entered 150 days later, on April 14, 

2011. And, under Fed. R. App. P. 4(a)(1)(A), the time to appeal the judgment expired on 

May 16, 2011. 

With these conditions in hand, we construe an earlier ―Petition for Writ of Certiorari,‖ 

sent to the District Court on February 21, 2011, as a timely filed notice of appeal; while 

falling short of the formal requirements of Fed. R. App. P. 3(c), it is nevertheless the 

―functional equivalent‖ of a notice of appeal, and it clearly evidences an intention to seek 

review. See Fed. R. App. P. 3(c) advisory committee‘s 1993 note; 3d Cir. L.A.R. 3.4; see 

also Smith v. Barry, 502 U.S. 244, 248 (1992); cf. Joseph v. Hess Oil V.I. Corp., 651 

F.3d 348, 356 (3d Cir. 2011). 
4

are required to accept the truth of Wallace‘s well-pleaded allegations while drawing 

reasonable inferences in his favor, Capogrosso v. Sup. Ct. of N.J., 588 F.3d 180, 184 (3d 

Cir. 2009) (per curiam). But a pro se complaint must still ―contain sufficient factual 

matter, accepted as true, to  ̳state a claim to relief that is plausible on its face.‘‖ Ashcroft 

v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 

544, 570 (2007)). Motions for reconsideration are reviewed for abuse of discretion. 

United States v. Dupree, 617 F.3d 724, 732 (3d Cir. 2010). 

We have carefully examined Wallace‘s submissions, which—as the District Court 

observed—are voluminous, numerous, and difficult to parse. From what we are able to 

glean, however, we agree with the District Court that his allegations do not state a claim 

upon which relief could be granted. 

First, to the extent that Wallace intended to sue the judges who have presided over 

his criminal case thus far, they are insulated by both absolute and statutory judicial 

immunity. See Mireles v. Waco, 502 U.S. 9, 9 (1991) (per curiam); Azubuko v. Royal, 

443 F.3d 302, 303–04 (3d Cir. 2006) (per curiam). While ―immunity, whether qualified 

or absolute, is an affirmative defense which must be affirmatively pleaded,‖ Kennedy v. 

City of Cleveland, 797 F.2d 297, 300 (6th Cir. 1986), the District Court did not err in 

raising it sua sponte, as the defect was apparent from the face of the complaint. Ray v. 

Kertes, 285 F.3d 287, 296 (3d Cir. 2002). 

Wallace also alleged that defendant Fegan violated his Fourth Amendment rights
5

in several ways, principally through a supposed ―false arrest.‖3 ―The proper inquiry in a 

section 1983 claim based on false arrest or misuse of the criminal process is . . . whether 

the arresting officers had probable cause to believe the person arrested had committed the 

offense.‖ Dowling v. City of Phila., 855 F.2d 136, 141 (3d Cir. 1988). ―[W]here the 

police lack probable cause to make an arrest, the arrestee has a claim under § 1983 for 

false imprisonment based on a detention pursuant to that arrest.‖ Groman v. Twp. of 

Manalapan, 47 F.3d 628, 636 (3d Cir. 1995). Assuming for the moment that Fegan did 

arrest Wallace—the complaint is not entirely clear on that front—Wallace did not allege 

that Fegan lacked probable cause to do so. Rather, Wallace asserted that 1) Fegan erred 

in describing him as a ―convicted felon‖ on the affidavit of probable cause that supported 

the issuance of an arrest warrant, and that 2) Fegan was acting outside of his jurisdiction 

when he arrested Wallace. But Wallace has not argued that his status (or lack thereof) as 

a felon was material to a finding of probable cause in this particular case. See Sherwood 

v. Mulvihill, 113 F.3d 396, 399 (3d Cir. 1997). While Pennsylvania limits the ability of 

municipal police to arrest suspects outside of their jurisdiction, see 42 Pa. Cons. Stat. 

Ann. § 8953, the Fourth Amendment is not violated when an otherwise-valid arrest is 

secured in contravention of a state law regulating the intrastate rules of municipal 

 

3 As Wallace‘s state criminal trial is still ongoing, civil relief is not categorically barred 

by the favorable termination rule of Heck v. Humphrey, 512 U.S. 477, 486–87 (1994). 

See Wallace v. Kato, 549 U.S. 384, 393–94 (2007); Wilkins v. DeReyes, 528 F.3d 790, 

801 n.6 (10th Cir. 2008) (―[T]he Heck favorable termination requirement does not apply 

to false arrest claims in the absence of an existing conviction . . . .‖). 
6

jurisdiction.4 

To the extent that Wallace alleged that he was injured by a ―policy or custom‖ of 

Franklin County, see Monell v. Dep‘t of Soc. Servs., 436 U.S. 658, 694 (1978), we agree 

with the District Court that Wallace‘s bare invocation of ―policy‖ and ―custom‖ was 

insufficient to state a valid claim. Finally, having examined the many documents that 

Wallace filed following the District Court‘s dismissal of his complaint, we conclude that 

the District Court did not abuse its discretion by declining to grant relief from judgment.

5

We close by observing that Wallace‘s complaint attempted, in part, to attack the 

in-progress criminal proceedings in state court; for example, he appeared to request 

criminal discovery and asked the District Court to ―bar action‖ in the criminal case. 

―[T]he normal thing to do when federal courts are asked to enjoin pending proceedings in 

state courts is not to issue such injunctions.‖ Younger v. Harris, 401 U.S. 37, 45 (1971); 

see also Lazaridis v. Wehmer, 591 F.3d 666, 670 n.4 (3d Cir. 2010) (per curiam) (listing 

limited exceptions). His seeming challenge to pretrial incarceration seeks a remedy 

available only in habeas. See Walck v. Edmondson, 472 F.3d 1227, 1235 (10th Cir. 

2007). 

In sum, because this appeal presents no substantial question, we will summarily 

 

4 Wallace also raised state-law versions of these claims. But without the existence of 

viable federal claims, the District Court would have lacked independent subject-matter 

jurisdiction over them. 

5 On appeal, Wallace seems to stress the apparent inpropriety of a cheek swab to which 

he was subjected, implying that his constitutional rights were violated in some fashion by 

the swab. Outside of a cursory mention, Wallace did not raise this claim in his operative 
7

affirm the District Court‘s judgment. Murray v. Bledsoe, 650 F. 3d 246, 248 (3d Cir. 

2011) (per curiam); see also 3d Cir. L.A.R. 27.4; I.O.P. 10.6. Wallace‘s two requests for 

the admission of exhibits are denied as in part barred and in part unnecessary. See In re 

Capital Cities/ABC, Inc.‘s Application for Access to Sealed Transcripts, 913 F. 2d 89, 96 

(3d Cir. 1990).

 

amended complaint and, accordingly, to the extent that it requests independent relief, it is 

waived. Patterson v. Cuyler, 729 F.2d 925, 929 (3d Cir. 1984).