UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

JAY A. WIVELL, :

:

Plaintiff :

:

v. : CIVIL NO. 4:CV-07-1200

:

51st JUDICIAL DISTRICT, ET AL., : (Judge McClure)

:

Defendants :

MEMORANDUM

July 17, 2007

Background

Jay A. Wivell (“Plaintiff”), an inmate presently confined at the Adams

County Correctional Facility, Gettysburg, Pennsylvania, filed this pro se civil

rights action pursuant to 42 U.S.C. § 1983. His complaint is accompanied by an in

forma pauperis application. For the reasons set forth below, Wivell’s action will

be dismissed, without prejudice, as legally frivolous under 28 U.S.C. § 1915.

Named as Defendants are the 51ST Judicial District of Pennsylvania; Adams

County, Pennsylvania; the Honorable John Kuhn and the Honorable Michael A.

George of the Adams County Court of Common Pleas; the Pennsylvania State

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 The current status of Plaintiff’s marriage is unclear.

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Police; the Adams County District Attorney’s Office; the Adams County Adult

Probation Office; the Adams County Correctional Facility; the Liberty Township,

Pennsylvania Police Department and its Chief James Holler; and Plaintiff’s wife,

Michele Wivell.1

The Complaint first alleges that the Defendants deprived Wivell of his

constitutional rights via the initiation of falsified criminal charges that he was

criminally trespassing on his own land. See Record document no. 1, p. 3. 

Plaintiff indicates that he has been in prison for three (3) years for three (3)

misdemeanors. He generally asserts that he has “been abused, illegally detained

and sentenced,” “illegally prosecuted,” and “unreasonably punished.” Id. He

adds that a court ordered mental evaluation to see if he was competent to stand

trial was never performed. As relief, Plaintiff seeks an award of monetary

damages.

Discussion

28 U.S.C. § 1915 imposes obligations on prisoners who file civil actions in

federal court and wish to proceed in forma pauperis. § 1915(e)(2) provides:

(2) Notwithstanding any filing fee, or any portion thereof, that may

have been paid, the court shall dismiss the case at any time if the

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2 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

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)). 

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court determines that (A) the allegation of poverty is untrue; or (B)

the action or appeal (I) is frivolous or malicious; (ii) fails to state a

claim on which relief may be granted; or (iii) seeks monetary relief

against a defendant who is immune from such relief.

Consequently, federal courts reviewing civil rights complaints filed by

persons wishing to proceed in forma pauperis 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

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

the Third Circuit 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." "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 judges are absolutely immune from suit for damages

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for conduct performed in the course of their official duties. Stump v. Sparkman,

435 U.S. 349, 359 (1978); Oatess v. Sobolevitch, 914 F.2d 428, 431 (3d Cir. 1990)

(recognizing that a court may dismiss an allegation against a judge based on an

exercise of judicial power). Consequently, since the claims against Judges

George and Kuhn are based on actions taken by those Defendants in the exercise

of their official duties, i.e., determinations made during the Plaintiff’s civil and

criminal proceedings in the Adams County Court of Common Pleas, Judges

George and Kuhn are entitled to absolute immunity from monetary damages.

Second, a prosecuting attorney is absolutely immune from liability for

monetary damages in civil rights actions for acts such as the initiation of the

prosecution and presentation of the state's case which are intimately associated

with the judicial phase of the criminal process. Imbler v. Pachtman, 424 U.S. 409,

420 (1976); Urrutia v. Harrisburg County Police Dep't, 91 F.3d 451, 462 (3d Cir.

1996). However, only qualified immunity is available to prosecutors with regard

to allegations based on their administrative and/or investigative duties. See Hawk

v. Brosha, 590 F. Supp. 337, 344 (E.D. Pa. 1984). Plaintiff's instant claims against

the Adams County District Attorney’s Office appear to be "intimately associated

with the judicial phase of the criminal process," see Imbler, 424 U.S. at 430 and,

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therefore, the District Attorney’s office is also absolutely immune from damages.

Next, it is noted that witnesses are generally entitled to absolute immunity

from civil rights claims for damages based upon their testimony. See Clark v.

Vernon, 2007 WL 1034802 *2, n. 3 (3d Cir. April 5, 2007). Thus, Plaintiff’s

Complaint to the extent that it is asserting that his wife gave false testimony

against him is additionally insufficient for purposes of recovering monetary

damages under § 1983. There is also no indication that Defendant Wivell was

acting under color of state law, which is an essential element in pleading a § 1983

claim. 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). 

Furthermore, in order to set forth a cognizable conspiracy claim, a plaintiff

cannot rely on broad or conclusory allegations. D.R. by L.R. v. Middle Bucks

Area Vocational Technical Sch., 972 F.2d 1364, 1377 (3d Cir. 1992), cert. denied,

506 U.S. 1079 (1993); Rose v. Bartle, 871 F.2d 331, 366 (3d Cir. 1989); Durre v.

Dempsey, 869 F.2d 543, 545 (10th Cir. 1989). The Court of Appeals for the Third

Circuit has further noted that "[a] conspiracy claim must . . . contain supportive

factual allegations." Rose, 871 F.2d at 366. Moreover, "[t]o plead conspiracy

adequately, a plaintiff must set forth allegations that address the period of the

conspiracy, the object of the conspiracy, and the certain actions of the alleged

conspirators taken to achieve that purpose." Shearin v. E.F. Hutton Group, Inc.,

885 F.2d 1162, 1166 (3d Cir. 1989). 

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The essence of a conspiracy is an agreement or concerted action between

individuals. See D.R. by L.R., 972 F.2d at 1377; Durre, 869 F.2d at 545. 

Consequently, a plaintiff must allege with particularity and present material facts

which show that the purported conspirators reached some understanding or

agreement or plotted, planned and conspired together to deprive plaintiff of a

protected federal right. Id.; Rose, 871 F.2d at 366; Young v. Kann, 926 F.2d 1396

1405 n.16; Chicarelli v. Plymouth Garden Apartments, 551 F. Supp. 532, 539

(E.D. Pa. 1982). Where a civil rights conspiracy is alleged, there must be some

specific facts in the complaint which tend to show a meeting of the minds and

some type of concerted activity. Deck v. Leftridge, 771 F.2d 1168, 1170 (8th Cir.

1985). A plaintiff cannot rely on subjective suspicions and unsupported

speculation. Young, 926 F.2d at 1405 n.16 (3d Cir. 1991).

Based upon an application of the above standards to Inmate Wivell's present

Complaint, his vague, wholly unsupported allegations of a conspiracy between the

Defendants to subject him to illegal criminal prosecutions do not satisfy the

pleading requirements of Rose, Deck, and Young. Specifically, there are simply

no averments of fact in the complaint that reasonably suggest the presence of an

agreement or concerted activity between any of the Defendants to violate

Plaintiff's civil rights. It is apparent that Plaintiff’s assertion that his wife

conspired with law enforcement officials, parole officers, prison staff, the District

Attorney’s office, and two Adams County Judges to deprive him of his

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constitutional rights is nothing more than mere speculation.

Finally, in Heck v. Humphrey, 512 U.S. 477 (1994), the United States

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. Based on the

allegations raised by Wivell, a finding in his favor would imply the invalidity of

his Adams County criminal prosecution[s]. See Gibson v. Superintendent, 411

F.3d 427, 449 (3d Cir. 2005); Sanchez v. Gonzalez, No. 05-2552, 2005 WL

2007008 *2 (D.N.J. Aug. 16, 2005). 

Since Plaintiff's complaint is "based on an indisputably meritless legal

theory" it will be dismissed, without prejudice, as legally frivolous. Wilson, 878

F.2d at 774. An appropriate Order will enter.

 s/ James F. McClure, Jr. 

 JAMES F. McCLURE, JR.

United States District Judge

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3 The dismissal of this action does not relieve Plaintiff of the obligation to pay

the full filing fee. Until the filing fee is paid in full, the Administrative Order issued is

binding on the Warden of the Adams County Prison, as well as the superintendent of

any correctional facility to which Plaintiff is transferred. 

8

UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

JAY A. WIVELL, :

:

Plaintiff :

:

v. : CIVIL NO. 4:CV-07-1200

:

51st JUDICIAL DISTRICT, ET AL., : (Judge McClure)

:

Defendants :

ORDER

July 17, 2007

 In accordance with the accompanying Memorandum, IT IS HEREBY

ORDERED THAT:

1. Plaintiff’s complaint is dismissed without prejudice as

frivolous pursuant to 28 U.S.C. § 1915 (e)(2)(B)(I).

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

 

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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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