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BLD-192 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-1340

___________

RICHARD E. BOYD,

Appellant

v.

GOVERNOR OF THE COMMONWEALTH OF PENNSYLVANIA

____________________________________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil No. 2:10-cv-01492)

District Judge: Honorable Gary L. Lancaster

____________________________________

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

May 19, 2011

Before: SLOVITER, JORDAN and GREENAWAY, JR., Circuit Judges

(Opinion filed: June 3, 2011)

_________

OPINION

_________

PER CURIAM

Richard Boyd, a Pennsylvania state prisoner proceeding pro se, appeals from the 

District Court’s order dismissing his complaint, as well as from the court’s subsequent 
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order denying his motion for reconsideration. For the reasons that follow, we will 

summarily affirm.

I.

Boyd is currently serving a 12- to 26-year prison sentence in connection with his 

2000 conviction in the Court of Common Pleas of Washington County, Pennsylvania, for

several sex-related crimes. In November 2010, Boyd commenced this action against the 

Governor of Pennsylvania by filing a complaint in the District Court. The complaint, 

which sought damages and Boyd’s release from custody, claimed that Boyd was being 

imprisoned unlawfully because his speedy trial rights had been violated in the 

aforementioned criminal proceeding.

The District Court referred the complaint to a Magistrate Judge, who issued a 

report recommending that the court dismiss the complaint without leave to amend for 

failure to state a claim. In doing so, the Magistrate Judge concluded that a habeas corpus 

petition, not a complaint, was the proper vehicle for challenging the legality of Boyd’s 

confinement. The Magistrate Judge further concluded that Boyd’s claim for damages 

failed because Boyd had not established that his convictions had been invalidated. On 

December 27, 2010, the District Court adopted the Magistrate Judge’s report and 

dismissed Boyd’s complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b) for

failure to state a claim. Boyd subsequently filed a motion for reconsideration, which the 

District Court denied on January 27, 2010. This appeal followed.

II.
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We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We exercise 

plenary review over the District Court’s sua sponte dismissal of Boyd’s complaint, see

Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000), and review the court’s denial of his 

motion for reconsideration for abuse of discretion. See Max’s Seafood Cafe ex rel. LouAnn, Inc. v. Quinteros, 176 F.3d 669, 673 (3d Cir. 1999). 

For substantially the reasons set forth in the Magistrate Judge’s report, we agree 

with the District Court’s decision to dismiss Boyd’s complaint without leave to amend 

for failure to state a claim.

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 1 We note that Boyd has previously (and unsuccessfully) challenged these 

convictions in a habeas proceeding. As a result, even if the District Court had 

construed the instant complaint as another habeas petition, the petition would have 

been subject to dismissal as an unauthorized second or successive habeas petition. 

See Burton v. Stewart, 549 U.S. 147, 157 (2007) (per curiam). 

 Furthermore, we conclude that the District Court did not err 

in denying Boyd’s motion for reconsideration. Because this appeal does not present a 

substantial question, we will summarily affirm the District Court’s December 27, 2010 

and January 27, 2011 orders. See 3d Cir. LAR 27.4; 3d Cir. I.O.P. 10.6. Boyd’s motion 

challenging the Clerk’s April 13, 2011 order regarding the payment of the filing fee for 

this appeal is denied, for his claim that he should not have to pay the fee lacks merit. See

28 U.S.C. § 1915(b)(1) (“[I]f a prisoner brings a civil action or files an appeal in forma 

pauperis, the prisoner shall be required to pay the full amount of a filing fee.”).