NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 13-3340

___________

WILLIE L. DAVIS,

Appellant

v.

ANGELO J. JORDAN, in his official capacity

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil No. 13-cv-01107)

District Judge: Honorable Robert D. Mariani

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

July 14, 2014

Before: HARDIMAN, NYGAARD and ROTH, Circuit Judges

(Opinion filed: July 14, 2014)

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OPINION

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PER CURIAM

Willie L. Davis appeals from the District Court’s order dismissing his complaint. 

For the following reasons, we will affirm the judgment of the District Court.

Davis is a federal inmate currently confined at the United States Penitentiary in 

Lewisburg, Pennsylvania (“USP-Lewisburg”). In October 2012, Davis filed a habeas 
2

petition in the District Court pursuant to 28 U.S.C. § 2241, listing as defendants Warden 

J.E. Thomas and Angelo Jordan, a Disciplinary Hearing Officer (“DHO”) at USPLewisburg. In the petition, docketed at M.D. Pa. Civ. No. 12-cv-01997, Davis 

challenged the certification and training standards of DHO Jordan. Specifically, Davis 

alleged that DHO Jordan was not properly certified to conduct his April 6, 2012 

disciplinary hearing which resulted in the loss of good-conduct time. Davis alleged that 

his due process rights had been violated during the disciplinary proceedings because 

DHO Jordan had not been properly credentialed.

After the Defendants filed a response to the habeas petition, the Magistrate Judge 

assigned to the case issued a Report and Recommendation (“R&R”) recommending that 

the habeas petition be denied. He determined that Davis had been afforded the full 

panoply of procedural protections during the disciplinary proceedings, and that there was 

sufficient evidence to support the prison’s finding of misconduct. Further, the evidence 

showed that DHO Jordan was competent to conduct the proceedings. The District Court 

later adopted the R&R and denied Davis’s habeas petition. Davis did not appeal that 

decision to this Court.

Before the District Court issued its final order in that case, however, Davis filed an 

application to proceed in forma pauperis and a separate complaint in the District Court 

against DHO Jordan, docketed at M.D. Pa. Civ. No. 13-cv-01107. The complaint, which 

Davis filed pursuant to 18 U.S.C. § 1001, a criminal statute, alleged that DHO Jordan had 

committed perjury in connection with the habeas case docketed at M.D. Pa. Civ. No. 12-
3

cv-01997. Specifically, Davis claimed that DHO Jordan had submitted falsified 

documents showing that he had obtained the proper certifications to conduct Davis’s 

disciplinary hearing. Davis sought money damages from DHO Jordan a result of his 

alleged violation of 18 U.S.C. § 1001.

The District Court referred the matter to the same Magistrate Judge who had been 

assigned to Davis’s habeas case. After granting Davis permission to proceed in forma

pauperis, the Magistrate Judge issued an R&R recommending that Davis’s complaint be 

dismissed. The Magistrate Judge construed the complaint as having been raised pursuant 

to Bivens v. Six Unknown Named Agents of Fed. Bur. of Narcotics, 403 U.S. 388 (1971). 

He then determined that the complaint merely repeated the claim that Davis had 

advanced in his earlier habeas petition--that his due process rights were violated at the 

disciplinary proceedings because DHO Jordan did not complete his training prior to the 

administrative hearing. Determining that success in Davis’s Bivens action would 

necessarily demonstrate the invalidity of the duration of his confinement, the Magistrate 

Judge recommended that the complaint be dismissed as barred by Heck v. Humphrey, 

512 U.S. 477, 487 (1994), and Edwards v. Balisok, 520 U.S. 641, 646-48 (1997).1

In an order entered June 28, 2013, the District Court overruled Davis’s objections 

to the R&R, adopted the R&R, and dismissed the complaint without prejudice with leave 

 

1

The Magistrate Judge also reiterated that Davis had, in fact, been afforded adequate due 

process during the disciplinary proceedings.
4

to amend within thirty days. Rather than filing an amended complaint, Davis filed a 

Notice of Appeal on July 25, 2013. The Clerk notified Davis of a potential jurisdictional 

defect pursuant to Borelli v. City of Reading, 532 F.2d 950 (3d Cir. 1976) (per curiam). 

Normally, an order that “dismisses a complaint without prejudice is neither final 

nor appealable” under 28 U.S.C. § 1291. Borelli, 532 F.2d at 951. Such an order 

becomes final and appealable, though, if the plaintiff “declares his intention to stand on 

his complaint” instead of amending it. Id. at 952. Because Davis has filed a response 

indicating that he has elected to stand on the original complaint, we exercise jurisdiction 

over the appeal.2 See Frederico v. Home Depot, 507 F.3d 188, 192-93 (3d Cir. 2007).

On appeal, Davis argues that the District Court misconstrued his complaint. He 

explains that the complaint did not seek damages from DHO Jordan because of his role in 

the disciplinary hearing, which formed the basis for Davis’s earlier habeas petition. 

Rather, he explains that he sought damages because he believes that DHO Jordan 

submitted false documentation, which amounted to perjury, in responding to his habeas 

petition.3

After reviewing the record, it appears that the District Court misconstrued the 

complaint in the manner Davis suggests. Although the Magistrate Judge determined that 

 

2 Our review of the District Court’s dismissal of Davis’s complaint is plenary. See Allah 

v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). 

3 We note that rather than filing an appeal, Davis could have raised this argument in a 

motion for reconsideration to the District Court.
5

Davis was again arguing that his due process rights had been violated during prison 

disciplinary hearings, that does not appear to be the case. Nevertheless, we must affirm 

the dismissal of Davis’s complaint on other grounds. See Johnson v. Orr, 776 F.2d 75, 

83 n.7 (3d Cir. 1985) (“An appellate court may affirm a result reached by the district 

court on reasons that differ so long as the record supports the judgment.”). As noted, 

Davis sought to initiate a cause of action against DHO Jordan under 18 U.S.C. § 1001, 

based upon his belief that DHO Jordan made false statements to the District Court in 

connection with his habeas case. However, a private cause of action does not exist under 

18 U.S.C. § 1001, which is a criminal statute. See Andrews v. Heaton, 483 F.3d 1070, 

1076 (10th Cir. 2007). Further, there is no federal right to require the government to 

initiate criminal proceedings against an individual. Linda R.S. v. Roland D., 410 U.S. 

614, 619 (1973). Accordingly, even if Davis’s complaint had been properly construed, it 

was subject to dismissal for the reasons we have identified.

Davis also argues on appeal that the District Court erred because it failed to 

properly authenticate DHO Jordan’s documents before accepting them as evidence in the 

habeas case. Any arguments related to the District Court’s handling of Davis’s habeas 

case should have been raised in an appeal from the order denying the petition. Davis did 

not appeal that decision, however, and we will not consider such arguments here.

For these reasons, we will affirm the judgment of the District Court. Appellant’s 

“notice of default and affidavit,” which we construe as a request to impose sanctions 

against the Appellee, is denied.