ALD-067 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 10-3331

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DERRICK McKINNEY,

Appellant

v.

PENNSYLVANIA BOARD OF PROBATION & PAROLE;

PENNSYLVANIA DEPARTMENT OF CORRECTIONS;

CITY OF PHILADELPHIA COUNTY; CITY OF MONTGOMERY COUNTY; 

CITY OF CUMBERLAND COUNTY; JOHN/JANE DOE(S)

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On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil No. 09-cv-03679)

District Judge: Honorable Timothy J. Savage

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Submitted for Possible Summary Action 

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

December 16, 2010

Before: SCIRICA, HARDIMAN and VANASKIE, Circuit Judges

(Filed: December 23, 2010)

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OPINION OF THE COURT

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PER CURIAM.

Derrick McKinney, proceeding pro se and in forma pauperis, filed a complaint 

pursuant to 42 U.S.C. § 1983 claiming that he had been imprisoned beyond the maximum 
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terms of his sentences for state convictions and a parole violation. He also alleged that 

some of the defendants violated his due process and other constitutional rights by 

incorrectly calculating his maximum sentence and by failing to conduct a parole 

revocation or parole hearing when they revoked his parole and continued to detain him. 

He sought declaratory relief and monetary damages against the defendants (although he 

did not request monetary relief from all the defendants). 

Four of the five named defendants filed motions to dismiss the complaint. The 

District Court granted the motions and dismissed the complaint in its entirety. McKinney 

appeals. 

We notified McKinney that we planned to consider his appeal for possible 

summary action. In response, McKinney retained counsel. Through his counsel, 

McKinney presents a motion to remand this matter to the District Court with leave to 

amend or re-file against the appropriate parties. He states that with the assistance of 

counsel, he will file his complaint against the appropriate parties and “cure any and all 

procedural defects that prevented [his] action from proceeding.” Several of the 

defendants/appellees oppose McKinney’s motion.

We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review is plenary. See

Lum v. Bank of Am., 361 F.3d 217, 223 (3d Cir. 2004); Allah v. Seiverling, 229 F.3d 

220, 223 (3d Cir. 2000). On review, we will summarily affirm the District Court’s 

judgment because no substantial issue is presented on appeal. See L.A.R. 27.4; I.O.P. 

10.6; see also Erie Telecomms. v. Erie, 853 F.2d 1084, 1089 (3d Cir. 1988) (holding that 
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we may affirm on an alternative basis supported by the record).

The District Court properly dismissed McKinney’s complaint. McKinney’s action

is barred by the doctrine of Heck v. Humphrey, 512 U.S. 477 (1994), because success on 

his claims would necessarily imply the invalidity of the fact and the duration of his state 

confinement, which have not been elsewhere invalidated. Absent the prior invalidation 

of a state confinement, a § 1983 action for damages or equitable relief is unavailable if 

success in that action would imply the invalidity of the fact or duration of the 

confinement. See Wilkinson v. Dotson, 544 U.S. 74, 78 (2005); see also Preiser v. 

Rodriguez, 411 U.S. 475, 500 (1973) (stating that “when a state prisoner is challenging 

the very fact or duration of his physical imprisonment, and the relief he seeks is a 

determination that he is entitled to immediate release or a speedier release from that 

imprisonment, his sole federal remedy is a writ of habeas corpus”); Williams v. 

Consovoy, 453 F.3d 173, 177 (3d Cir. 2006) (holding that where success in a § 1983 

action would imply the invalidity of a decision to revoke parole that has not been 

otherwise rendered invalid, the action is Heck-barred); cf. Edwards v. Balisok, 520 U.S. 

641, 646-48 (1997) (holding that a prisoner did not present a claim that was cognizable 

under 42 U.S.C. § 1983 when he sought a declaration that the procedures used by prison 

officials at his hearing to revoke good time credits violated his right to due process).

Despite dismissing what was nominally a pro se civil rights complaint in part on 

the defendants’ motions and in part sua sponte, the District Court did not consider 

whether McKinney should have been afforded leave to amend. However, we conclude 
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the District Court committed no error because amendment would be futile. See Grayson 

v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002). Although McKinney argues 

on appeal that he could file his claims against the proper parties and correct procedural 

problems if he were permitted to remand, he simply cannot bring his habeas claims in a § 

1983 action. Accordingly, we deny McKinney’s motion to remand, and we will affirm 

the District Court’s judgment.