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RESUBMIT BLD-043 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-3163

___________

ERIC HUMBERT,

Appellant

v.

WARDEN SCI MAHANOY; AGENCY SPOL, Megan's Law Unit Harrisburg;

ELAINE A. LANGTON, Registered Nurse; PA PAROLE BOARD; PA STATE POL, 

Megan's Law Unit; MICHAEL J. KURTZ, Forensic Scientist Supervisor; PAUL J. 

EVANKO, Former Commissioner of the Pennsylvania State Police; JEFFREY B. 

MILLER, Former Commissioner of the Pennsylvania State Police; FRANK E. 

PAWLOWSKI, Commissioner of the Pennsylvania State Police; BENJAMIN 

MARTINEZ, Former Chairman of the Pennsylvania Board of Probation and Parole;

CATHERINE C. MCVEY, Chairman of the Pennsylvania Board of Probation and Parole;

JOHN R. TUTTLE, Past and/or Current Director of the Office of Probation and Parole 

Services; SECRETARY PENNSYLVANIA DEPARTMENT OF CORRECTIONS;

JAMES C. BARNACLE, Director of the Bureau of Professional Responsibility;

KATHLEEN ZWIERZYNA, Director of the Bureau of Standards and Security;

JANE/JOHN DOE, Corrections Doe's; JOHN/JANE DOE, BPP Doe's; JOHN/JANE 

DOE, PSP Doe's; THOMAS W. CORBETT, JR., Attorney General of Pennsylvania

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil No. 1:05-cv-01967)

District Judge: Honorable Sylvia H. Rambo

____________________________________
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Submitted for Possible Dismissal Due to Jurisdictional Defect, and 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

January 18, 2013

Before: SCIRICA, HARDIMAN and GREENAWAY, JR., Circuit Judges

(Opinion filed: March 07, 2013)

_________

OPINION

_________

PER CURIAM

Eric Humbert appeals orders dismissing portions of his third amended complaint 

and granting summary judgment in favor of the defendants on the remainder. We will 

affirm.

Humbert is a federal prisoner currently incarcerated in Virginia. In the early 

1990s, he was charged with a variety of Pennsylvania offenses, among them two counts 

of kidnapping. The exact nature of the crime is not as well developed as we might like, 

but from the various police reports provided by the defendants, it appears that Humbert 

(along with several accomplices) was accused of participating in a breaking-and-entering 

robbery that involved removing or confining a mother, a ten-month-old baby, and ―two 

other children.‖ The relevant version of the Pennsylvania kidnapping statute allowed for 

two different paths to a conviction: 1) if the act was ―accomplished by force, threat, or 

deception‖; or 2) if it was accomplished ―without the consent of‖ a parent or guardian for

a victim ―under the age of 14 years.‖ 18 Pa. Cons. Stat. § 2901(b) (1992). Humbert was 
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charged with both kinds of kidnapping, apparently as separate offenses. He was 

convicted of the force offense, but was acquitted of the ―under fourteen‖ offense.

In late 2002, Humbert was granted parole. At the time, Pennsylvania law required 

that those convicted of certain crimes provide a DNA sample prior to being released on 

parole. Thus, in January 2003, Nurse Langton withdrew a blood sample from Humbert 

for testing and entry into the Combined DNA Index System (CODIS) database. Shortly 

thereafter, Patrice Schwalm, a parole agent at the Pennsylvania prison where Humbert 

was incarcerated, was tasked with determining the conditions of Humbert’s parole. As 

part of her analysis, Schwalm determined that Humbert was required to register under 

Megan’s Law; in so doing, she relied upon criminal-history information that showed 

Humbert’s kidnapping conviction and the fact that the offense ―involved‖ a ten-monthold child, but that did not reflect his separate acquittal of another kidnapping charge. On 

March 6, 2003, Humbert (with Schwalm witnessing) signed a Sexual Offender 

Registration that described his offense simply as ―kidnapping,‖ and which contained a 

lengthy statement about his ―sexual offense.‖

Humbert’s time at large was short lived. In 2004, he was indicted in the Eastern 

District of Pennsylvania (E.D. Pa. Crim. No. 04-cr-00192-2) and was ultimately 

convicted of offenses related to a bank robbery. In the federal case, the DNA collected 

by Pennsylvania in 2003 was used as a comparison to DNA recovered from a victim who 
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was carjacked and assaulted during the robbery scheme—the samples matched.1

In August 2005, Humbert initiated this federal lawsuit pro se, naming four 

Pennsylvania defendants. The short complaint simply stated that a DNA sample was 

taken, and he was ―falsely logged as a convicted sexual offender,‖ in violation of the 

Fourth and Fourteenth amendments. Humbert demanded $50,000,000 in damages. After 

some of the defendants were dismissed, Humbert amended his complaint to name 

additional defendants and add detail to his charges. He alleged that the defendants had 

―wrongfully, recklessly, and negligently logged the Plaintiff as being convicted of . . . 

kidnapping where the victim is a minor, while [he] had been found not guilty on said 

charge,‖ and claimed that both the blood draw and his inclusion in the Megan’s Law 

database violated his rights under the First, Fourth, Sixth, Eighth, and Fourteenth 

amendments. He stated that, after discovering his presence on the Megan’s Law list, his 

daughter cut off contact with him; furthermore, his allegedly mistaken presence on the 

list ―humiliated [and] embarrassed‖ him. Humbert asked the District Court to order him 

removed from the DNA Database ―under the Megan’s law‖ and award damages. The 

amended complaint was dismissed against the Pennsylvania Board of Probation and 

Parole (the ―Board‖) and the Megan’s Law Unit, but otherwise it survived the 

defendants’ renewed motion to dismiss. 

 

1 We affirmed Humbert’s conviction and sentence. See generally United States v. 

Humbert, 336 F. App’x 132 (3d Cir. 2009). A § 2255 motion appears to be pending 
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The District Court later appointed counsel for Humbert, who then filed (in 2009) a

third amended complaint. It reasserted Humbert’s claims regarding his inclusion in the 

Megan’s Law database and the drawing of his blood for DNA purposes, emphasizing that

he did not discover his Megan’s Law designation until 2005. Humbert now complained 

that the various defendants received ―actual notice‖ of his wrongful inclusion in the 

database due to the initiation of the instant lawsuit in 2005, and that his continued 

presence in the database was both indicative of ―bad faith‖ and caused him ―risk of 

serious bodily injury in the prison population.‖ He now sought the removal of ―all 

identifying information‖ from the sex-offender registry and the Megan’s Law website, a 

finding that the blood draw contravened his constitutional rights, and fees and money 

damages. Shortly after the third amended complaint was filed, Humbert was removed 

from the Megan’s Law website and put on ―inactive‖ status.

The District Court addressed the final batch of claims in two thorough opinions. 

First, it dismissed DNA sample claim. Relying on both Pennsylvania and federal law, the 

Court determined that the blood draw did not violate the Fourth Amendment. See

Humbert v. Langton, No. 1:CV-05-01967, 2010 U.S. Dist. LEXIS 92795, at *23–27 

(M.D. Pa. Sept. 7, 2010) (citing, inter alia, United States v. Sczubelek, 402 F.3d 175, 184 

(3d Cir. 2005), and Luckett v. Blaine, 850 A.2d 811, 817 (Pa. Commw. Ct. 2004)). 

Second, the Court granted summary judgment in favor of the remaining defendants, 

 

before the District Court at the time of writing.
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finding 1) that the conduct relating to Humbert’s Megan’s Law registration fell outside of 

the statute of limitations for 42 U.S.C. § 1983 actions, and that no exception to or tolling 

of the limitations period applied; and 2) that none of the defendants was personally 

involved in any constitutional violation. See generally Humbert v. Evanko, No. 1:CV05-01967, 2012 U.S. Dist. LEXIS 86233 (M.D. Pa. June 21, 2012). This pro se appeal 

followed.2

Our review of both orders is plenary, and utilizes the same standards employed 

below. Mandel v. M&Q Packaging Corp., No. 11-3193, ___ F.3d ___, 2013 U.S. App. 

LEXIS 864, at *10 (3d Cir. Pa. Jan. 14, 2013); Barefoot Architect, Inc. v. Bunge, 632 

F.3d 822, 826 (3d Cir. 2011). Having examined the entire record, including the 

defendants’ evidentiary submissions, we agree that dismissal and summary judgment 

were warranted for substantially the same reasons articulated by the District Court.

Although the grounds presented by the District Court are sufficient to affirm, a 

few additional observations are warranted. With regard to Humbert’s claims that the 

failure to immediately remove him from the Megan’s Law database after he filed suit 

 

2 Humbert’s ―notice of appeal‖ was filed after the thirty-day period specified in 

Fed. R. App. P. 4(a)(1)(A). While acknowledging that the notice was not timely filed, we 

determined that an attachment to the notice could reasonably be construed as a timely 

Fed. R. App. P. 4(a)(5) motion, and remanded to the District Court for consideration of 

Humbert’s request to extend the time to appeal. See C.A. No. 12-3163 (order entered 

November 26, 2012). The District Court granted the motion; thus, the notice of appeal 

was timely filed and we have jurisdiction under 28 U.S.C. § 1291.
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amounted to a denial of procedural due process, we note that his first two complaints 

occasionally lacked specificity in their demands; indeed, the first sought damages only, 

whereas the second sought removal from the DNA database. The record gives no 

indication that Humbert pursued any state-level remedies, whether administrative or 

judicial, that might have expedited his removal from the Megan’s Law database. See, 

e.g., Commonwealth v. Benner, 853 A.2d 1068, 1069–70 (Pa. Super. Ct. 2004) 

(describing a state-level request to be excused from compliance with Megan’s Law 

registration requirements).3

Nor, for that matter, was Humbert clearly entitled to removal from the database. 

Humbert believes that his conviction for kidnapping by force but acquittal for the 

―fourteen-year-old‖ kidnapping meant that he was not convicted of a crime involving a 

minor. But as Douglas Grimes suggested in his deposition, the record of conviction is 

 

3 All the same, we are somewhat troubled by the lack of articulation of how, 

exactly, an offender who believes he has been erroneously designated a Megan’s Law 

registrant can remove himself from the list; the record suggests that multiple possible 

avenues to relief exist, but it is unclear which is preferred and which would be most 

efficient for an offender in Humbert’s position. To the extent that Humbert’s designation 

implicated a liberty interest to which due process rights would attach, see Schepers v. 

Comm’r, 691 F.3d 909, 914 (7th Cir. 2012), he would be justified in expecting some 

process for challenging his designation. However, a claim that Pennsylvania did not 

satisfy its own statutory scheme for providing instructions on how to correct erroneous 

data does not, in itself, state a claim under 42 U.S.C. § 1983, which applies only to 

violations of federal law. See McMullen v. Maple Shade Twp., 643 F.3d 96, 99 (3d Cir. 

2011). Furthermore, Humbert concedes that he did not raise a claim attacking the 

defendants for violating a policy or custom.
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not entirely clear, and no party appears to have access to materials that would shed light 

on the exact outcome of Humbert’s trial.4 Further, while Megan’s Law requires a tenyear registration for kidnapping ―where the victim is a minor,‖ a ―minor‖ is an individual 

under the age of eighteen, not fourteen, so the age-based version of the substantive 

kidnapping offense is not the only way that a person found guilty of the crime can be 

placed on the list. See 42 Pa. Cons. Stat. §§ 9792, 9795.1(a)(1). Under Pennsylvania 

law, kidnapping in this context can lead to placement in the Megan’s Law registry even 

without the presence of a sexual offense; and as the mock-up of Humbert’s Megan’s Law 

registration shows, he was designated as having been convicted of ―2901 -

KIDNAPPING‖ in the public database. Given the multiple victims in the Pennsylvania 

case and the limited information available to Schwalm, the defendants’ caution cannot be 

categorically faulted. See Chambers v. Sch. Dist. of Phila. Bd. of Educ., 587 F.3d 176, 

196 (3d Cir. 2009) (―A negligent deprivation of due process will not sustain a § 1983 

claim.‖) (citation omitted). Finally, we observe that, whether the claims are contemplated 

under procedural or substantive due process, the defendants would almost certainly be 

entitled to qualified immunity. See Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011); 

Walter v. Pike Cnty., 544 F.3d 182, 191 (3d Cir. 2008); see also Nicholas v. Miller, 189 

F.3d 191, 195 (2d Cir. 1999) (per curiam) (qualified immunity properly raised when 

 

4 Grimes also stops short of saying definitively that Humbert should not have been 

registered in the first place.
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asserted in answer but not also in summary judgment motion).

Because this appeal presents no substantial question, we will affirm the District 

Court’s judgment. See 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. Humbert’s motion for appointment of 

counsel is denied.