1

 An action commenced in state court which is premised on civil rights

violations may be removed by a defendant. See 28 U.S.C. § 1443; West Mifflin v.

Lancaster, 45 F.3d 780, 785 (3d Cir. 1995)(civil rights claims regarding federal

questions should be permitted to be heard in federal courts). 

UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

GLUE WILKINS, :

:

Plaintiff :

:

v. : CIVIL NO. 4:CV-06-408

:

MAYOR STEPHEN REED AND THE :

HARRISBURG BUREAU OF POLICE,:

: (Judge McClure)

Defendants :

MEMORANDUM AND ORDER

March 6, 2006

Background

This pro se civil rights action was initiated by Glue Wilkins (“Plaintiff”) in

the Dauphin County, Pennsylvania Court of Common Pleas. On February 23,

2006, the Defendants removed the action to this Court.1 In his complaint,

Wilkins, an inmate presently confined at the State Correctional Institution,

Somerset, Pennsylvania (SCI-Somerset), seeks relief under 42 U.S.C. § 1983 and 

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asserts claims under Pennsylvania state law. For the reasons set forth below,

Wilkins’ federal claims will be dismissed without prejudice as legally frivolous and

his state law claims will be remanded to the Court of Common Pleas.

Named as Defendants are Harrisburg Mayor Stephen R. Reed, the

Harrisburg Police Department and Officers Tim Carter, Shaun Pugh, Kevin Duffin,

Peter Rivera, Leslie Brown and Elijah Massey. It is initially noted that Wilkins has

filed prior unsuccessful § 1983 complaints with this Court regarding his 2003

Dauphin County, Pennsylvania attempted homicide conviction. 

In his present complaint, Wilkins states that he was arrested on July 17, 2002

and charged with attempted criminal homicide, aggravated assault, robbery, theft

of a motor vehicle, terroristic threats, unlawful restraint, and possession of an

instrument of crime. Plaintiff admits that he was convicted of all charges

following a jury trial in the Dauphin County Court of Common Pleas and sentenced

to a twenty-four (24) year term of imprisonment.

Plaintiff claims that his conviction was the result of perjured testimony, an

illegal arrest, and evidence tampering. Wilkins adds that his conviction was

unconstitutional because he was not given his Miranda warnings and denied due

process. The complaint also seeks to establish liability against Mayor Reed under

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Indisputably meritless legal theories are those "in which it is either readily

apparent that the plaintiff's complaint lacks an arguable basis in law or that the

(continued...)

3

a theory of vicarious liability. His complaint seeks compensatory and punitive

damages as well as declaratory relief, specifically, a declaration that the

Defendants violated his rights.

Discussion

 28 U.S.C. § 1915A provides in pertinent part:

(a) Screening. -- The court shall review ... a complaint in a civil action

in which a prisoner seeks redress from a governmental entity or

officer or employee of a governmental entity.

(b) Grounds for dismissal. -- On review, the court shall identify

cognizable claims or dismiss the complaint, or any portion of the

complaint, if the complaint --

(1) is frivolous, malicious, or fails to state a claim upon

which relief may be granted; or

(2) seeks monetary relief from a defendant who is

immune from such relief.

A district court may determine that process should not be issued if the

complaint is malicious, presents an indisputably meritless legal theory, or is

predicated on clearly baseless factual contentions. Neitzke v. Williams, 490 U.S.

319, 327-28 (1989); Wilson v. Rackmill, 878 F.2d 772, 774 (3d Cir. 1989).2 The

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2(...continued)

defendants are clearly entitled to immunity from suit." Roman v. Jeffes, 904 F.2d 192,

194 (3d Cir. 1990) (quoting Sultenfuss v. Snow, 894 F.2d 1277, 1278 (11th Cir.

1990)). 

4

Court of Appeals for the Third Circuit has added that "the plain meaning of

'frivolous' authorizes the dismissal of in forma pauperis claims that . . . are of little

or no weight, value, or importance, not worthy of serious consideration, or trivial." 

Deutsch v. United States, 67 F.3d 1080, 1083 (3d Cir. 1995). “The frivolousness

determination is a discretionary one," and trial courts “are in the best position" to

determine when an indigent litigant's complaint is appropriate for summary

dismissal. Denton v. Hernandez, 504 U.S. 25, 33 (1992).

It is initially noted that a § 1983 action may not be employed to challenge the

fact or duration of confinement or to seek earlier or speedier release. Preiser v.

Rodriguez, 411 U.S. 475 (1975). All of the Plaintiff’s present allegations are

unquestionably attacking the legality of his Pennsylvania state criminal conviction. 

Pursuant to the standards announced in Preiser, Wilkins’ present complaint to the

extent that it seeks to overturn his Dauphin County conviction is not properly

asserted under § 1983. 

Second, the Plaintiff acknowledges that his claims against Mayor Reed are

based on a theory of vicarious liability which is also known as the doctrine of

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respondeat superior. In order to state an actionable § 1983 civil rights claim, a

plaintiff must plead two essential elements: (1) that the conduct complained of was

committed by a person acting under color of law, and (2) that said conduct

deprived the plaintiff of a right, privilege, or immunity secured by the Constitution

or laws of the United States. Groman v. Township of Manalapan, 47 F.3d 628,

638 (3d Cir. 1995); Shaw by Strain v. Strackhouse, 920 F.2d 1135, 1141-42 (3d

Cir. 1990). 

Civil rights claims brought cannot be premised on a theory of respondeat

superior. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Rather, each

named defendant must be shown, via the complaint's allegations, to have been

personally involved in the events or occurrences which underlie a claim. See Rizzo

v. Goode, 423 U.S. 362 (1976); Hampton v. Holmesburg Prison Officials, 546

F.2d 1077 (3d Cir. 1976). As explained in Rode:

A defendant in a civil rights action must have personal

involvement in the alleged wrongs. . . . [P]ersonal involvement

can be shown through allegations of personal direction or of

actual knowledge and acquiescence. Allegations of

participation or actual knowledge and acquiescence, however,

must be made with appropriate particularity. 

Rode, 845 F.2d at 1207.

Based on the nature of Plaintiff’s allegations especially his admission that the

claims against Mayor Reed are premised on a theory of vicarious liability, the

complaint to the extent that is asserts § 1983 claims against the Mayor is subject to

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dismissal under the standards developed in Capone.

 Next, with respect to Plaintiff’s requests for compensatory and punitive

damages, in Heck v. Humphrey, 512 U.S. 477 (1994), 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. Thus, Wilkins’ requests for

compensatory and punitive damages are premature under Heck because he cannot

maintain a cause of action for monetary damages until his underlying state criminal

conviction is rendered invalid. If Plaintiff is able to successfully challenge his

Dauphin County conviction, he may then reassert his claim for damages in a

properly filed civil rights complaint. 

Furthermore, the United States Court of Appeals for the Third Circuit has

recognized that civil rights claims seeking release from confinement sound in

habeas corpus. See Georgevich v. Strauss, 772 F.2d 1078, 1086 (3d Cir. 1985). 

In Edwards v. Balisok, 520 U.S. 641, 646 (1997), the United States Supreme Court

concluded that a civil rights claim for declaratory relief “based on allegations ...

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that necessarily imply the invalidity of the punishment imposed, is not cognizable”

in a civil rights action. Id. at 646. Pursuant to Georgevich and Edwards,

Plaintiff’s present request for declaratory relief is also not properly raised in a

federal civil rights complaint. 

In conclusion, since the Plaintiff's § 1983 claims are "based on an

indisputably meritless legal theory" they will be dismissed, without prejudice, as

legally frivolous. Wilson, 878 F.2d at 774. 

Pendent Jurisdiction

 It has long been recognized that federal courts have jurisdiction over state

claims which are related to the federal claims and result from a common nucleus of

operative facts. See United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966). 

28 U.S.C. § 1367(c)(3) (1997) provides that a district court may decline to

exercise supplemental jurisdiction over a claim when the court has dismissed all

claims over which it has original jurisdiction. Once the basis for federal jurisdiction

disappears, a district court should only exercise its discretion to entertain pendent

claims if extraordinary circumstances exist. New Jersey Department of

Enviromental Protection v. Glouchester Enviromental Management, 719 F. Supp.

325, 337 (D. N.J. 1989). 

Since this Court has concluded that Plaintiff’s § 1983 claims are subject to

dismissal, it will not exercise jurisdiction over his pendent state law claims. 

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Wilkins’ surviving state law claims will be remanded to the Dauphin County Court

of Common Pleas. Consequently,

 IT IS HEREBY ORDERED THAT:

1. Plaintiff’s claims under 42 U.S.C. § 1983 are dismissed without 

prejudice as frivolous pursuant to 28 U.S.C. § 1915A.

2. The Plaintiff’s surviving state law claims are remanded to the

Dauphin County Court of Common Pleas.

3. The Clerk of Court is directed to close the case.

3. Any appeal from this Order will be deemed frivolous, without

probable cause and not taken in good faith.

 s/ James F. McClure, Jr. 

JAMES F. McCLURE, JR.

United States District Judge

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