IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

EDWARD J. NICHOLAS, :

 :

Plaintiff, : CIVIL NO. 4:CV-06-1541

 :

v. : (Judge Caputo)

 :

JAMES P. BARKER, et al., :

 :

Defendants. :

M E M O R A N D U M

I. Background

Plaintiff, Edward J. Nicholas, an inmate at the State Correctional Institution in

Albion, Pennsylvania, commenced this action by filing a pro se civil rights complaint under

the provisions of 42 U.S.C. § 1983. Thereafter, Plaintiff filed an application for leave to

proceed in forma pauperis. Also pending is Plaintiff’s motion to consolidate (Doc. 7) his

civil rights action with his pending habeas corpus petition (Civil Action No. 4:06-CV-1265)

and Plaintiff’s “Motion For Leave of Power of Subpoena of Records of District Justice

Marsha Stewart” (Doc. 8). The instant complaint initiates the latest in a string of habeas

corpus and civil rights actions challenging alleged improprieties in Plaintiff’s preliminary

hearing, trial, conviction, and sentence in the Dauphin County Court of Common Pleas in

Harrisburg, Pennsylvania in criminal docket # 3685 of 1997 (“3685 cd 1997”). Defendants

are: (1) the Dauphin County Court Reporters Office; (2) the Dauphin County Prosecutor’s

Office as well as staff members James P. Barker and A. Richard Long; (3) Dauphin County

Clerk of Court Lowell Witmer; (4) the Pennsylvania Attorney General; and (5) Harrisburg

Police Officer Donald Heffner. Plaintiff alleges obstruction of justice with Defendants’

refusal to produce: (a) “original documents of case 3685 cd 1997;” (b) all dispositions of

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District Justice dispositive orders; and (c) hospital records. Plaintiff also claims

misrepresentations of evidence, forgery/false police reports and forgery of names or initials

on police statements, jury tampering, denial of defense counsel, unspecified corruption,

and malicious prosecution. Plaintiff seeks “award of damages for the delays in justice”

(Doc. 1 at 5, ¶ 6), production of documentation related to the alleged improprieties in his

trial, conviction and sentencing, criminal prosecution of Defendants, termination of

employment for Defendants, costs of suit, and any other relief to which he is entitled. For

the following reasons, the complaint will be dismissed, without prejudice, under 28 U.S.C. §

1915, and Plaintiff’s motion for power of subpoena and motion to consolidate will be denied

as moot.

II. Discussion 

A. Preliminary Review of Complaint

The Prison Litigation Reform Act (“PLRA”) establishes procedures for prisoners’ civil

rights actions filed in federal court. Under § 1915(e)(2) of the Act, the Court shall dismiss

claims by parties seeking to proceed in forma pauperis “if the court determines that – (B)

the action or appeal – (i) is frivolous . . . .” 28 U.S.C. § 1915(e)(2)(B)(i). Similarly, under

Section 1915A of the Act, the Court is required to screen civil complaints by prisoners who

seek redress from a governmental entity, or employees or officers of a governmental entity,

and Section 1915A(b) requires courts to “dismiss the complaint . . . if the complaint – (1) is

frivolous . . . .” 28 U.S.C. § 1915A(b)(1). 

The frivolousness determination applies equally to cases that are factually frivolous

and those that are legally frivolous. Neitzke v. Williams, 490 U.S. 319, 327-28 (1989). An

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action is legally frivolous if it is based upon an indisputably meritless legal theory. Wilson

v. Rackmill, 878 F.2d 772, 774 (3d Cir. 1989). Indisputably meritless legal theories are

those “in which it is . . . readily apparent that the plaintiff’s complaint lacks an arguable

basis in law . . . .” Roman v. Jeffes, 904 F.2d 192, 194 (3d Cir. 1990). “[T]he

frivolousness determination is a discretionary one,” and trial courts “are in the best position”

to determine when a complaint is appropriate for summary dismissal. Denton v.

Hernandez, 504 U.S. 25, 33 (1992). Although the Court is mindful that pro se complaints

are to be liberally construed, Haines v. Kerner, 404 U.S. 519, 520 (1972), a complaint that

does not establish entitlement to relief under any reasonable interpretation is properly

dismissed without leave to amend. Grayson v. Mayview State Hospital, 293 F.3d 103, 106

(3d Cir. 2002). 

B. Claim Preclusion Under Heck.

Plaintiff’s claim is barred by the holding in Heck v. Humphrey, 512 U.S. 477 (1994),

and amendment of the pleading will not salvage the document. In Heck, the Supreme

Court ruled that a Constitutional cause of action for damages does not accrue “for allegedly

unconstitutional conviction or imprisonment, or for other harm caused by actions whose

unlawfulness would render a conviction or sentence invalid,” until the Plaintiff proves that

the “conviction or sentence has been reversed on direct appeal, expunged by executive

order, declared invalid by a state tribunal authorized to make such determination, or called

into question by a federal court’s issuance of a writ of habeas corpus.” Id. at 486-87. 

Plaintiffs’ complaint asserts improprieties with Plaintiff’s preliminary hearing, trial, conviction

and sentencing, and he is illegally incarcerated as a result of obstruction of justice, forgery,

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corruption, fabrication of evidence, and jury tampering by Defendants. However, nothing in

the record supports a conclusion that the propriety of his trial, conviction and sentence has

been successfully challenged. To the contrary, Plaintiff has filed no less than three habeas

petitions (Civil Action No. 4:06-CV-1265, Civil Action No. 4:06-CV-1421, and Civil Action

No. 4:06-CV-1501) in this Court to test the validity of his arrest and/or incarceration. Since

the success of the instant claim relies upon the impropriety of Plaintiff’s incarceration and

sentence, Heck precludes a cause of action until the propriety of detention has been

reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal

authorized to make such determination, or called into question by a federal court’s

issuance of a writ of habeas corpus. Accordingly, the Plaintiff’s complaint is barred by

Heck, and it will be summarily dismissed, without prejudice. 

III. Conclusion

Since the complaint is legally frivolous, and since Plaintiff’s claim is barred by the

holding in Heck, the complaint will be dismissed as legally frivolous under the provisions of

28 U.S.C. § 1915. An appropriate Order follows.

Dated: October 3, 2006 /s/ A. Richard Caputo 

A. RICHARD CAPUTO

United States District Judge

Case 4:06-cv-01541-ARC-KH Document 10 Filed 10/03/06 Page 4 of 5
IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

EDWARD J. NICHOLAS, :

 :

Plaintiff, : CIVIL NO. 4:CV-06-1541

 :

v. : (Judge Caputo)

 :

JAMES P. BARKER, et al., :

 :

Defendants. :

O R D E R

AND NOW, THIS 3rd DAY OF OCTOBER, 2006, in accordance with the foregoing

Memorandum, IT IS HEREBY ORDERED THAT:

1. Plaintiff’s application for leave to proceed in forma pauperis (Doc. 6) is

GRANTED for the limited purpose of filing this complaint.

2. Plaintiff’s complaint is DISMISSED as legally frivolous under the provisions of

28 U.S.C. § 1915(e)(2)(B)(I).

3. Plaintiff’s Petition to Consolidate Habeas Corpus and Civil Rights Actions

(Doc. 7) and Plaintiff’s “Motion for Leave of Power of Subpoena” (Doc. 8) are

DENIED as moot.

4. The Clerk of Court is directed to close the file in this case.

5. Any appeal from this Order will be deemed frivolous, without probable cause,

and not taken in good faith.

 /s/ A. Richard Caputo 

A. RICHARD CAPUTO

United States District Judge

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