2015 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of A

ppe al s for the Thir d C ir c uit

5-1-2015 

# W i lme r G a y v . C it y of P hi l a del phi a

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w . v i l l a no v a . e du/thir dc ir c uit_2015

Thi s M a y i s br ou gh t t o y ou for f

r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of A

ppe al s for the Thir d C ir c uit a t V i l l a no v a U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. I t h as be e n a c c e pt e d for inclusion in 2015 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a U niv e r sit y S choo l of L a w Di g it al R e posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w . v i l l a no v a . e du

. R e c omme nde d C it a t ion

" W i lme r G a y v . C it y of P hi l a de lp hi a " (2015). 2015 D e cisio n s . P a pe r 445. h tt p://d i g it alc ommon s .l a

w . v i l l a no v a . e du/thir dc ir c uit_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 NOT PRECEDENTIAL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; C OMMONWEALTH OF PENNSYLVANIA;

BOARD OF PARDONS

__________________________________ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civ. No. 2

- 1 1

- cv - 0 4194 ) D istrict 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 CURIAM2

Wilmer B. Gay appe als 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 Com mon 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, 2 011, Gay file d 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 Pennsylvani a asked for a more definite statement, 1 and, 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 ove r forty years in pris on 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 c ases. 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 verifi ed 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 Co urt 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 fo r 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 affi rmed, 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 ple ader 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). T he District Court properly dismissed Gay’s “verified complaint , ” which defies any attempt to meaningfully answ er or plead to it, and which left the defendants having to4

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 mis carriage of justice, United States v. Beggerly , 524 U.S. 38, 47 (1998) , and w hile 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, t he 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 aris e out of his prosecution for murder and imply the invalidity of his conviction and s entence, the y are not cogniz able 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 ame nd a deficient complaint prior to dismissal u nless doing so would be futile, s ee 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 d ismissal 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.