GLD-223 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 13-1188

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DERRICK GODFREY,

Appellant

v.

COMMONWEALTH OF PENNSYLVANIA;

LARRY THOMPSON;

JULIO M. ALGARIN, Assistant Warden;

FRANCIS J. BERNHARDT;

GREGORY NESTOR, In his personal capacity;

JESSE KING;

EILEEN WHALON BEHRL, In her personal capacity;

JUSTIN JAMES BOEHRET;

PIETRO ANGELO;

WILLIAM J. CARPENTER;

CHARLES S. NABER

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil No. 2:12-cv-5549)

District Judge: Honorable Legrome D. Davis

____________________________________

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

May 2, 2013

Before: FUENTES, FISHER and VANASKIE, Circuit Judges

(Opinion filed: May 15, 2013)

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OPINION

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2

PER CURIAM

Derrick Godfrey appeals from the District Court‟s order dismissing his complaint. 

For the following reasons, we will dismiss the appeal as frivolous.

I.

Godfrey, who at the time was imprisoned at the Montgomery County Correctional 

Facility, brought a civil action under 42 U.S.C. § 1983 in the Eastern District of 

Pennsylvania against the Commonwealth of Pennsylvania and several individual 

defendants. Godfrey alleged that Defendants committed various constitutional violations 

by arresting, prosecuting and imprisoning him, by taking his property, by denying him 

bail, and by conspiring against him.

Acting pursuant to its authority under 28 U.S.C. § 1915(e), the District Court 

dismissed without prejudice Godfrey‟s initial amended complaint for failure to state a 

viable claim. Godfrey filed a second amended complaint, which the District Court 

dismissed with prejudice, determining that, again, he failed to state a viable claim. 

Godfrey timely appealed.

II.

We have jurisdiction under 28 U.S.C. § 1291, and we exercise plenary review over 

the District Court‟s dismissal. See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). 

To survive dismissal, a plaintiff‟s complaint must “contain sufficient factual matter, 

accepted as true, to „state a claim to relief that is plausible on its face.‟” Ashcroft v. 
3

Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 

(2007)). We will dismiss the appeal as frivolous pursuant to 28 U.S.C. 

§ 1915(e)(2)(B)(i), as it lacks an arguable basis either in law or fact. See Neitzke v. 

Williams, 490 U.S. 319, 325 (1989).

Godfrey‟s second amended complaint, like his first, was chock-full of legal 

conclusions couched as factual allegations, making it profoundly difficult to decipher 

exactly his claims.

1

 At first blush, it appears that he alleged that Defendants‟ mere acts of 

arresting, prosecuting, and imprisoning him were unconstitutional. Godfrey claimed, for 

instance, that he was unlawfully seized when Defendant Thompson stopped him, 

removed him from his vehicle, handcuffed him, and accused him of committing a crime. 

He did not state how this amounted to anything other than a routine arrest. Without 

more, these allegations do not state a viable claim. See Iqbal, 556 U.S. at 678.

To the extent that Godfrey‟s claims were for false arrest and imprisonment, and 

malicious prosecution, he needed to point to facts suggesting that Defendant Thompson 

lacked probable cause to believe he had committed the offense for which he was arrested. 

See Dowling v. City of Phila., 855 F.2d 136, 141 (3d Cir. 1988); Lightning Lube, Inc. v. 

 

1

In its initial screening of Godfrey‟s first amended complaint, the District Court 

properly dismissed with prejudice the claims Godfrey brought under various federal 

criminal statutes, as there is no federal right to require the government to initiate criminal 

proceedings. See Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973). The District Court 

also properly dismissed the Commonwealth as a defendant. See Will v. Mich. Dep‟t of 

State Police, 491 U.S. 58, 66, 71 (1989).
4

Witco Corp., 4 F.3d 1153, 1197 (3d Cir. 1993).2 Tellingly, he did not. Rather, he alleged 

only that Defendants “constructed an affidavit of probable cause ... which was given to 

[Godfrey] as a means to trick him into believing that his rights [were not] being violated 

and that he [had] been arrested by such information and should accept ... being placed in 

servitude.” (Pls.‟ Second Am. Compl. 2.) Accordingly, Godfrey‟s allegations did not 

support claims of false arrest, false imprisonment, and malicious prosecution. See Iqbal, 

556 U.S. at 678.

Finally, Godfrey claimed that Defendants conspired to imprison him unlawfully. 

To demonstrate the existence of a conspiracy under § 1983, he needed to show that two 

or more conspirators reached an agreement to deprive him of a constitutional right under 

color of law. See Parkway Garage, Inc. v. City of Phila., 5 F.3d 685, 700 (3d Cir. 1993), 

abrogated on other grounds by United Artists Theatre Circuit, Inc. v. Twp. Of 

Warrington, 316 F.3d 392 (3d Cir. 2003). Not only did he fail to point to facts suggesting 

that his arrest, imprisonment, or prosecution were unconstitutional, he also failed to 

allege facts plausibly suggesting an illicit agreement. He simply stated, for instance, that 

Defendants conspired to “keep [him] physically restrained in servitude.” (Pls.‟ Second 

 

2

The record does not reveal whether Godfrey was convicted of anything as a 

result of this particular arrest. If he was, some of his claims would be barred by the 

favorable termination rule of Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). See

Wallace v. Kato, 549 U.S. 384, 393-94 (2007); Wilkins v. DeReyes, 528 F.3d 790, 801 

n.6 (10th Cir. 2008) (“[T]he Heck favorable termination requirement does not apply to 

false arrest claims in the absence of an existing conviction....”).
5

Am. Compl. 2.) Therefore, he did not state a viable claim of conspiracy. See Iqbal, 556 

U.S. at 678.

For the reasons given, we agree with the District Court‟s determination and we 

will dismiss Godfrey‟s appeal as legally frivolous pursuant to 28 U.S.C. 

§ 1915(e)(2)(B)(i)3 See Neitzke v. Williams, 490 U.S. 319, 325 (1989).

 

3 Under the circumstances, including Godfrey‟s repeated attempts to amend, the 

District Court need not have offered Godfrey an additional opportunity to amend his 

allegations. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).