2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-26-2012

Andrew Bickel v. Ernest DiSantis

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-3819

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Recommended Citation

"Andrew Bickel v. Ernest DiSantis" (2012). 2012 Decisions. Paper 242.

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ALD-010 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-3819

___________

ANDREW C. BICKEL,

 Appellant

v.

ERNEST DISANTIS; ELEANOR R. VALECKO; 

ROBERT J. CATALDE

____________________________________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civ. No. 1-10-cv-00274)

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

October 12, 2012

Before: SLOVITER, VANASKIE and WEIS, Circuit Judges

(Opinion filed: October 26, 2012)

_________

OPINION

_________

PER CURIAM.

Andrew C. Bickel is a Pennsylvania prisoner. He filed the complaint at issue here 

against Judge Ernest DiSantis and Deputy Clerk Robert J. Catalde of the Pennsylvania 

Court of Common Pleas for Erie County, as well as Eleanor R. Valecko, the Deputy 

Prothonotary of the Pennsylvania Superior Court. Bickel alleged that defendants 
2

conspired to violate his constitutional rights in connection with his appeal from Judge 

DiSantis’s order denying Bickel’s state-court habeas petition. In particular, Bickel took 

issue with: (1) a Superior Court order issued September 16, 2010, which directed the 

Superior Court Prothonotary to forward Bickel’s “application for a writ of error” to the 

Court of Common Pleas to be treated as a notice of appeal from Judge DiSantis’s order; 

(2) a September 22, 2010 letter from defendant Catalde requesting further direction on 

how to treat the filing in light Bickel’s already pending appeal from Judge DiSantis’s 

order; and (3) a Superior Court order issued October 4, 2010, vacating its previous order 

of September 16 and stating that Bickel could raise all legally cognizable issues in his 

already pending appeal. Bickel did not specify how he had been harmed by these events, 

but he characterized the letter and orders as “fraudulent” and requested various forms of 

relief, including monetary damages and immediate release from prison.

All parties consented to the Magistrate Judge’s exercise of jurisdiction under 28 

U.S.C. § 636(c)(1), and the defendants filed Rule 12(b)(6) motions to dismiss on various 

grounds. The Magistrate Judge granted those motions and dismissed Bickel’s complaint 

by order entered September 27, 2011. The Magistrate Judge concluded that: (1) 

defendant DiSantis is entitled to absolute judicial immunity because his alleged actions 

were taken in his judicial capacity, see Mireles v. Waco, 502 U.S. 9, 11-12 (1991); (2) 

defendant Valecko is entitled to absolute immunity because Bickel alleged only that she 

acted pursuant to a facially valid court order, see Hamilton v. Leavy, 322 F.3d 776, 782-

83 (3d Cir. 2003); and (3) defendant Catalde is entitled to absolute immunity because 
3

Bickel alleged only that he exercised his official duties as a court clerk, see Henig v. 

Odorioso, 385 F.2d 491, 494 (3d Cir. 1967). In addition, the Magistrate Judge concluded 

that Bickel had failed to state a claim for conspiracy.

Bickel appeals pro se. Because we granted him leave to proceed in forma 

pauperis, we must screen this appeal pursuant to 28 U.S.C. § 1915(e)(2)(B) to determine 

whether it should be dismissed as frivolous. We conclude that it should. An appeal is 

frivolous when it “lacks an arguable basis in law or in fact.” Neitzke v. Williams, 490 

U.S. 319, 325 (1989). Our review confirms that there is no arguable basis to challenge 

the Magistrate Judge’s rulings in this case for the reasons stated by the Magistrate Judge. 

In addition, Bickel has alleged no conceivable injury arising from the events of which he 

complains. For these reasons, there was no need for the Magistrate Judge to provide 

Bickel with leave to amend before dismissing his complaint because it is apparent that 

amendment would have been futile. See Phillips v. County of Allegheny, 515 F.3d 224, 

236 (3d Cir. 2008). Accordingly, we will dismiss this appeal pursuant to § 

1915(e)(2)(B).1

 

1

 The Magistrate Judge issued several other orders before dismissing Bickel’s complaint, 

including an order denying his motion for a default judgment against defendant Valecko. 

Bickel appealed from that ruling, but we dismissed that interlocutory appeal for lack of 

jurisdiction. (C.A. No. 11-2774, Aug. 23, 2011.) Bickel’s present notice of appeal states 

that he appeals only from the Magistrate Judge’s “final decision.” Even if we were to 

construe that notice to include the denial of his motion for a default judgment, there is no 

arguable basis to challenge that ruling because Valecko filed a timely motion to dismiss 

asserting the meritorious defense discussed above. Bickel’s argument that counsel for 

Valecko did not validly enter an appearance, which he has asserted in prior motions in 

this Court, lacks arguable merit.