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BLD-068 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 10-3368

___________

ROBERT E. CHAMBERS, II, Appellant

v.

JUDGE RITA HATHAWAY; 

OFFICER GARY SCHUBERT; 

OFFICER WAGNER; 

SERGEANT LAPORTE

____________________________________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil No. 1-08-cv-00352)

Magistrate Judge: Honorable Susan Paradise Baxter

____________________________________

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

December 16, 2010

Before: SLOVITER, JORDAN and GREENAWAY, JR., Circuit Judges

(Opinion filed: January 4, 2011)

_________

OPINION

_________
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PER CURIAM

Robert E. Chambers, a Pennsylvania prisoner proceeding pro se, appeals from the 

dismissal of his complaint pursuant to Fed. R. Civ. P. 12 (b)(6). Because the appeal 

presents no substantial question, we will summarily affirm.

Chambers filed a complaint pursuant to 42 U.S.C. § 1983, alleging that Defendant 

Judge Hathaway “violated [his] due process by putting a stay out of New Ken., Arnold, 

and Lower Burrell order on [his] sentencing paperwork. . .” Complaint at Section IV.C. 

He further claimed that Defendants Schubert, Wagner, and LaPorte (“Police 

Defendants”) violated his Fourth Amendment rights by conducting an allegedly improper 

search and seizure. Chambers sought monetary relief as well as “immediate relief or resentencing based on evidence.” Complaint at VI. 1

Concurrently with his § 1983 complaint, Chambers petitioned the District Court 

for a writ of habeas corpus. That petition, in which Chambers raised nearly identical

claims, was denied. There, the District Court noted that the stay-out “order” was no more 

than a recommendation—in fact, Defendant Judge Hathaway herself acknowledged on 

Chambers’ state appeal that: “the inclusion in any sentencing order involving a maximum 

period of incarceration of two years or more of language regarding a condition of parole 

is but a recommendation or suggestion only, and is clearly not mandatory or enforceable 

unless made a special condition of parole by the [Pennsylvania Board of Probation and 

 1 By consent of the parties, the matter was adjudicated by United States Magistrate 

Judge Susan Paradise Baxter.
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Parole].” Chambers v. Attorney Gen.

To the extent, if any, that Chambers’ intent in this civil rights action was to 

invalidate some part of the sentence imposed by the trial court, he cannot do so.

, No. 2:08-cv-01703, 2009 WL 605885, at *4 (W.D. 

Pa. Mar. 9, 2009), appeal dismissed as untimely, CA No. 09-2522 (3d Cir. Sept. 16, 

2009).

Heck v. 

Humphrey. 512 U.S. 477 (1994); Preiser v. Rodriguez, 411 U.S. 475 (1973). As noted, 

Chambers has unsuccessfully appealed his sentence through the state courts and his

petition for a writ of habeas corpus was denied on its merits. Heck, 512 U.S. at 487 

(“when a state prisoner seeks damages in a § 1983 suit, the district court must consider 

whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his 

conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff 

can demonstrate that the conviction or sentence has already been invalidated”). However 

there are aspects of Chambers’ claims that would not lie in habeas or implicate the 

validity of his sentence. For instance, as to the stay-out “order,” which, as we have 

noted, was no more than a recommendation, Chambers indicates that his concern is with 

the mental anguish he suffered upon hearing the “order.”2

Chambers’ claim that the Police Defendants committed an illegal search and 

seizure of his person is also not barred by 

 

Heck

 2 In the argument Chambers filed in support of this appeal, he claims that this 

order has caused him to be concerned throughout his incarceration about possible 

release conditions. He further alleges mental anguish arising from the necessity of 

explaining to his worried children that he will, in fact, likely be unable to return 

. Chambers averred that the inculpatory 
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evidence the Police Defendants recovered was not found on his person but rather from 

some other area. Complaint at IV.C. Because Chambers does not claim that the search 

and seizure of his person produced evidence used against him at trial, his claim does not 

implicate the validity of his sentence. See Heck

Defendant Judge Hathaway moved to dismiss the complaint, citing both absolute 

judicial immunity and 

, 512 U.S. at 487 n.7.

Heck

The Magistrate Judge correctly concluded that Defendant Judge Hathaway is 

immune from suit for any civil rights violation under the doctrine of absolute judicial 

immunity. Judge Hathaway was acting within her judicial capacity and within her 

jurisdiction when she made the statements that allegedly caused Chambers’ anguish and

is therefore immune from suit. 

. The Police Defendants moved to dismiss Chambers’ claims 

against them as barred by the applicable two-year statute of limitations. Chambers did 

not respond to either of these motions, and instead filed a motion for summary judgment.

Mireles v. Waco, 502 U.S. 9, 11-12 (1978).3

 

home after his sentence. 

3 The Magistrate Judge’s also relied upon the Rooker-Feldman doctrine. Because 

Chambers did not seek to “appeal” from the state court to the District Court, but 

instead sought to argue a new constitutional claim, the doctrine is inapplicable. 

See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280 (2005); Great 

W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 163-70 (3d Cir. 

2010). Given how Chambers presents his claim, we doubt he is–as the Magistrate

Judge thought–actually seeking prospective injunctive relief as to Judge 

Hathaway. We stress in any event that the judge’s comments, even if construed as 

Chambers evidently construes them, in no way amounted to a due process 

violation. Cf. DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir. 2000) (“Standing 

alone, simple verbal harassment does not constitute cruel and unusual punishment, 

deprive a prisoner of a protected liberty interest or deny a prisoner equal 

protection of the laws”).
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The Magistrate judge was also correct to dismiss Chambers’ claims against the 

Police Defendants because the statute of limitations had already elapsed at the time his 

complaint was filed. A two-year statute of limitations is applied to § 1983 claims brought 

in Pennsylvania. Dique v. N.J. State Police, 603 F.3d 181, 185 (3d Cir. 2010) (“A section 

1983 claim is characterized as a personal-injury claim and thus is governed by the 

applicable state's statute of limitations for personal-injury claims”) (citing Wallace v. 

Kato

As the appeal presents no substantial question, we will summarily affirm the 

judgment below. 

, 549 U.S. 384, 387 (2007)); 42 Pa. Con. Stat. § 5524 (requiring that personal injury 

actions be commenced within two years). Here, the allegedly unconstitutional actions by 

the Police Defendants occurred on July 3, 2006. Complaint at IV.C. Chambers filed this 

suit in December 2008—well outside the applicable limitations period.

See 3d Cir. L.A.R. 27.4 and 3d Cir. I.O.P. 10.6.