2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-1-2015

Wilmer Gay v. City of Philadelphia

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2015

This May is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University

School of Law Digital Repository. It has been accepted for inclusion in 2015 Decisions by an authorized administrator of Villanova University School of

Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Wilmer Gay v. City of Philadelphia" (2015). 2015 Decisions. Paper 445.

http://digitalcommons.law.villanova.edu/thirdcircuit_2015/445
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 13-4583

____________

WILMER B. GAY,

Appellant

v.

CITY OF PHILADELPHIA; ROBERT D. SHANNON; 

WILLIAM K. SUTER, US Clerk for US Supreme Court; 

COMMONWEALTH OF PENNSYLVANIA; 

BOARD OF PARDONS

__________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civ. No. 2-11-cv-04194)

District Judge: Mary A. McLaughlin

__________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

January 16, 2015

Before: FUENTES, SHWARTZ and ROTH, Circuit Judges

(Opinion filed: May 1, 2015)

____________

OPINION*

____________

PER CURIAM
2

 Wilmer B. Gay appeals from orders of the District Court dismissing his “verified 

complaint” with prejudice and denying him leave to amend. For the reasons that follow, 

we will affirm.

Gay was convicted in April, 1972 of first degree murder in the Philadelphia Court 

of Common Pleas. He was sentenced to life imprisonment, and his conviction and 

sentence have been upheld on numerous occasions, see Gay v. City of Philadelphia, 2005 

WL 1844407, *1 n.1 (E.D. Pa. August 2, 2005). At issue in this appeal, in June, 2011, 

Gay filed a pro se complaint in the United States District Court for the Central District of 

California, which was transferred to the Eastern District of Pennsylvania. After Gay paid 

the filing fee, defendants Robert D. Shannon and the Commonwealth of Pennsylvania 

asked for a more definite statement,1and, in response, Gay filed a “Verified Complaint 

for Damages and Fed. R. Civ. P. 60(b) Independent Action for Relief in Equity from 

Fraudulent Begotten Judgments, etc.” Gay alleged in the main that he had spent over 

forty years in prison for crimes he did not commit, and he sought to vacate “fraudulent 

begotten judgments” entered in his criminal case, his habeas corpus cases, and his civil 

rights cases. 

Defendant the City of Philadelphia filed a motion to dismiss the complaint for 

failure to comply with Fed. R. Civ. Pro. 8, and Gay moved to amend his verified 

complaint and for an order to show cause and a temporary restraining order. In an order 

entered on October 29, 2013, the District Court dismissed the verified complaint with 

 

1 The only defendants who were served and who entered an appearance were the City of 

Philadelphia, Robert D. Shannon, and the Commonwealth of Pennsylvania.
3

prejudice as to all defendants, because it was incomprehensible. In a separate order, the 

District Court denied Gay’s motion for leave to amend and motion for an order to show 

cause and for a temporary restraining order. The District Court subsequently denied 

Gay’s motion for reconsideration in an order entered on November 14, 2013.

Gay appeals. We have jurisdiction under 28 U.S.C. § 1291. In his Informal Brief, 

Gay contends that he has been falsely imprisoned for the past 42 years for a crime he did 

not commit, and that this claim may be pursued in an independent action under Rule 

60(d). We note that Gay previously sued the City of Philadelphia, various correctional 

defendants, and state judges in the Eastern District of Pennsylvania in Gay v. City of 

Philadelphia, D.C. Civ. 03-cv-05358, alleging a similar claim of a vast conspiracy to 

violate his civil rights by prosecuting and imprisoning him for murder. A different 

United States District Judge dismissed that complaint, and we affirmed, see C.A. No. 05-

4718. 

We will affirm. Federal Rule of Civil Procedure 8(a) requires a pleading to 

contain “a short and plain statement of the grounds for the court’s jurisdiction” and “a 

short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. 

R. Civ. Pro. 8(a)(1), (2). See also Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 573 

(2007). Each averment must be “simple, concise, and direct.” Id. at 8(d)(1). “Taken 

together,” Rules 8(a) and 8(d)(1) “underscore the emphasis placed on clarity and brevity 

by the federal pleading rules.” In re: Westinghouse Sec. Litig., 90 F.3d 696, 702 (3d Cir. 

1996). The District Court properly dismissed Gay’s “verified complaint, ” which defies 

any attempt to meaningfully answer or plead to it, and which left the defendants having to 
4

guess what of the many things discussed constituted actionable wrongs. Relief pursuant 

to an independent action under Federal Rule of Civil Procedure 60(d) is permitted only to 

prevent a grave miscarriage of justice, United States v. Beggerly, 524 U.S. 38, 47 (1998), 

and while it is evident that Gay seeks redress of perceived wrongs that are likely related 

to the other legal actions to which he was a party, the specific nature of his claims cannot 

be deduced from the information provided. The complaint, therefore, does not satisfy 

Rule 8. We add that, to the extent that Gay’s claims arise out of his prosecution for 

murder and imply the invalidity of his conviction and sentence, they are not cognizable 

under 42 U.S.C. § 1983 absent a showing that the conviction or sentence has been 

overturned or invalidated, which he frankly admits is not the case. Heck v. Humphrey, 

512 U.S. 477 (1994). District courts generally must allow a plaintiff leave to amend a 

deficient complaint prior to dismissal unless doing so would be futile, see Grayson v. 

Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002), but here the District Court was 

not required to grant Gay leave to amend because he had ample time prior to dismissal of 

the verified complaint to meet the requirements of Rule 8.

For the foregoing reasons, we will affirm the orders of the District Court 

dismissing the complaint with prejudice, denying leave to amend, denying a show cause 

order and a temporary restraining order, and denying reconsideration. Gay’s request in ¶ 

8 of his Informal Brief that we appoint him counsel is denied.