CLD

- 223 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 23

- 1909

___________ JOHN SMITH ,

Appellant

v. J UDGE VITO P. GEROULO; JUDGE MICHAEL BARASSE; DISTRICT ATTORNEY MARK POWELL

____________________________________ On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil Action No. 3:21

- cv - 01634 ) District Judge: Honorable Robert D. Mariani

____________________________________ Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

September 28, 2023 Before: SHWARTZ, MATEY, and F REEMAN, Circuit Judges

(Opinion filed October 16, 2023 )

_________ OPINION *

_________ PER CURIAM

* This disposition is not an opinion of the full C ourt and pursuant to I.O.P. 5.7 does not const itute binding precedent.2

John Smith , proceeding pro se and in forma pauperis, sued two state

- court judges and a prosecutor under 42 U.S.C. § 1983 . He alleged that the defendants deprived him of several constitutional rights by failing to timely hold a Grazier 1 hearing and to timely rule

on his Pennsylvania Post

- Conviction Relief Act (“PCRA”) petition. 2 For relief, Smith asked the District Court “to order the defendants to immediately hold a Grazier hearing so I can proceed pro se and immediately resolve my PCRA proceedings. ” ECF No. 1 at
5. Adopting a Magistrate Judge’s r eport and r ecommendation over Smith’s objections, the District Court dismissed the complaint with prejudice under 28 U.S.C. §§ 1915A(b)(1) and § 1915(e)(2)(B)(ii) for failure to state a claim . Smith appeals. We have j urisdiction under 28 U.S.C. § 1291. Our review is plenary. See Allah v. Seiverling , 229 F.3d 220, 223 (3d Cir. 2000)

. We may affirm on any basis supported by the record

. S ee Murray v. Bledsoe , 650 F.3d 246, 247 (3d Cir. 2011) (per curiam)

.

1 Commonwealth v. Grazier , 713 A.2d 81, 82 (Pa. 1998) (“When a waiver of the right to counsel is sought at the post

- conviction and appellate stages, an on

- the

- record determination should be made that the waiver is a knowing, intell igent, and voluntary one.”).

2 He filed his initial PCRA petition in October 2019 to challenge his conviction for indecent assault of a minor less than 13 years of age, corruption of minors, simple assault, and endangering the welfare of a child. See Commonwealth v. Smith , Docket No. CP

- 35

- CR

- 0000119

- 2017.3

Because no substantial issue is raised on appeal, see 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P.
10.6 , we will affirm the dismissal with a modification

. As the District Court noted, and as Smith concedes, Smith received a Grazier hearing shortly after he filed his complain t in the District Court. See also Commonwealth v. Smith , Docket No. CP

- 35

- CR

- 0000119

- 2017. Accordingly, his request for relief with respect to the Grazier hearing became moot. See Blanciak v. Allegheny Ludlum Corp. , 77 F.3d 690, 698

- 99 (3d Cir. 1996) ( “ If developments occur during the course of adjudication that

. . . prevent a court from being able to grant the requested relief, the case must be dismissed as moot.” )

. Furthermore, the District Court was (and is) without authority to grant Smith’s request for an order directing the defendants to immediately resolve his PCRA proceedings

. 3 See In re Wolenski , 324 F.2d 309, 309 (3d Cir. 1963) (per curiam) (explaining that “it is clear that the district court had no jurisdiction” to order a state court
to is sue a decree and opinion on a petition pending before it). For these reasons, the District Court properly dismissed the complaint. However, because the District Court lacked jurisdiction, Smith’s complaint should have been dismissed without prejudice f or lack of jurisdiction instead of with prejudice under 28

3 Although his request for relief could be read to request only a Grazier hearing, the District Court resolved the ambiguity in Smith’s favor, which seems correct based on Smith’s further discussio n of his claim in his objection s and in the document he filed in support of appeal in this court.4

U.S.C. §§ 1915A(b)(1) and 1915(e)(2)(B)(ii ). See N.J. Physicians, Inc. v. President of
U.S. , 653 F.3d 234, 241 n.8 (3d Cir. 2011) (explaining that dismissals for lack of subject matter jurisdiction are “by definition without prejudice”)

. Accordingly, we modify the judgment to dismiss the complaint without prejudice. Cf. Curry v. Yachera , 835 F. 3d 373, 379

– 80 (3d Cir. 2016) (modifying order of dismissal). We will affirm the District Court’s judgment as modif i ed. 4

4 Smith’s request for appointment of counsel is denied.