BLD-082 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________
No. 17-2823 ___________
CHARLES FLOYD, JR., Appellant
v.
THE ATTORNEY GENERAL OF THE COMMONWEALTH OF PENNSYLVANIA; JUDGE ROBERT JENNINGS, III; NICOLAS J. LICATA; SEAN D. CORNICK; JASON TURCHETTA; D. ANTONI; KURT ZITSCH, Parole Officer; RICHARD ANGLEMEYER ____________________________________
On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil Action No. 16-cv-01420) District Judge: Honorable Christopher C. Conner ____________________________________
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 21, 2017
Before: AMBRO, RESTREPO and NYGAARD, Circuit Judges
(Opinion filed: January 8, 2018) _________
OPINION* _________ PER CURIAM
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Charles Floyd, Jr., appeals from the District Court’s orders dismissing his
complaint under 28 U.S.C. § 1915(e)(2) and denying his motion for appointment of
counsel. We will summarily affirm.
In October 2016, Floyd filed a vague and factually disjointed amended complaint
pursuant to 42 U.S.C. § 1983 in the United States District Court for the Middle District of
Pennsylvania. Floyd named as defendants: the Commonwealth of Pennsylvania; the
Pennsylvania State Attorney General; Judge Robert Jennings, III; and several detectives
and probation officers. Floyd’s allegations appear to arise from two related Dauphin
County incidents, each of which resulted in his being convicted of drug offenses. Floyd
claims that on February 11, 2014, Probation Officer Anglemeyer came to his residence
without a warrant. Floyd gave him permission to search his bedroom, wherein the officer
found drug paraphernalia. Floyd was advised of his rights. After consenting to another
search of his bedroom, which revealed more drug paraphernalia, Floyd was arrested,
compelled to give a DNA sample, and then released. He claims that he was not given a
court appearance until April 11, 2014, that no affidavit of probable cause was filed with
the criminal complaint, that 369 days elapsed until he was sentenced, and that he filed a
suppression motion that was ignored.
Floyd claims that on April 11, 2014, Officer Anglemeyer, accompanied by
Probation Officer Kurt Zitsch, entered and searched Floyd’s residence. Because Floyd
appeared to be moving furtively, both probation officers handcuffed Floyd, patted him
2 down, and searched his body and pockets.1 Officer Licata arrived with his K-9 unit.
Floyd claims that he gave consent to search his living quarters only, but instead his entire
house was searched without a warrant. The search revealed some aluminum wraps that
did not contain cocaine. As a result of the officers’ findings, Floyd was arrested. At the
booking center, 12 packets of powder cocaine were recovered from Floyd’s person.
Floyd claims that Officer’s Licata and Ishman falsified the date and time of their reports
making his arrest and incarceration illegal. While the exact nature of Floyd’s claims is
unclear, he appears to be bringing Fourth Amendment and malicious prosecution claims.
Floyd seeks monetary damages, and requests that the evidence from the search of his
home be suppressed and returned.
In June 2017, Floyd filed a motion for appointment of counsel, which the District
Court denied by order entered on June 13, 2017. Shortly thereafter, the Magistrate Judge
concluded that Floyd’s amended complaint failed to state a claim upon which relief could
be granted and recommended dismissing his claims with prejudice. Neither party filed
objections. By order entered on August 8, 2017, the District Court adopted the
Magistrate Judge’s report and dismissed Floyd’s amended complaint with prejudice.
Floyd appeals both the June 13, 2017, and August 8, 2017 District Court orders. He also
seeks the appointment of counsel.
1 It is unclear from the amended complaint and the exhibits what exactly was in Floyd’s pockets, but at some point, Floyd was found to be in the possession of two cell phones and $396 in cash. 3 We have jurisdiction pursuant to 28 U.S.C. § 1291. Because Floyd has been
granted in forma pauperis status pursuant to 28 U.S.C. § 1915, we review this appeal for
possible dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B). We may summarily affirm
under Third Circuit LAR 27.4 and I.O.P. 10.6 if the appeal lacks substantial merit.
We exercise plenary review over the District Court’s order dismissing Floyd’s complaint.
See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000).
We address matters that are relatively straightforward first. We agree with the
District Court that Floyd has failed to allege any action in his amended complaint that
would be adequate to demonstrate personal involvement on the part of Judge Jennings or
the Pennsylvania Attorney General in connection with any claim. See Rode v.
Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). We further conclude that the doctrine
of sovereign immunity protects the Commonwealth of Pennsylvania from liability. The
Eleventh Amendment bars suits in federal court by private parties against states, state
agencies, and state officials in their official capacities, absent consent by the state, see
Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 267-70 (1997), and no exception
applies here, see Lavia v. Pa. Dep’t of Corr., 224 F.3d 190, 195 (3d Cir. 2000).
Floyd’s claims of malicious prosecution and fabrication of evidence, in which he
alleges that Officers Turchetta, Antoni, Licata, and Isman mixed up the times stated in
the reports and docket numbers from which evidence was obtained, and that a deposition
transcript was falsified because it lacks a docket number, signature, and certification, are
barred under Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the United States
Supreme Court held that “in order to recover damages for allegedly unconstitutional
4 conviction or imprisonment, or for other harm caused by actions whose unlawfulness
would render a conviction or sentence invalid,” a plaintiff bringing a § 1983 action must
prove that his conviction or sentence has been reversed on appeal, expunged, or called
into question. Id. at 486-87. Because Floyd’s malicious prosecution and fabrication of
evidence claims do not accrue until the criminal proceedings have terminated in Floyd’s
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BLD-082 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________
No. 17-2823 ___________
CHARLES FLOYD, JR., Appellant
v.
THE ATTORNEY GENERAL OF THE COMMONWEALTH OF PENNSYLVANIA; JUDGE ROBERT JENNINGS, III; NICOLAS J. LICATA; SEAN D. CORNICK; JASON TURCHETTA; D. ANTONI; KURT ZITSCH, Parole Officer; RICHARD ANGLEMEYER ____________________________________
On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil Action No. 16-cv-01420) District Judge: Honorable Christopher C. Conner ____________________________________
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 21, 2017
Before: AMBRO, RESTREPO and NYGAARD, Circuit Judges
(Opinion filed: January 8, 2018) _________
OPINION* _________ PER CURIAM
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Charles Floyd, Jr., appeals from the District Court’s orders dismissing his
complaint under 28 U.S.C. § 1915(e)(2) and denying his motion for appointment of
counsel. We will summarily affirm.
In October 2016, Floyd filed a vague and factually disjointed amended complaint
pursuant to 42 U.S.C. § 1983 in the United States District Court for the Middle District of
Pennsylvania. Floyd named as defendants: the Commonwealth of Pennsylvania; the
Pennsylvania State Attorney General; Judge Robert Jennings, III; and several detectives
and probation officers. Floyd’s allegations appear to arise from two related Dauphin
County incidents, each of which resulted in his being convicted of drug offenses. Floyd
claims that on February 11, 2014, Probation Officer Anglemeyer came to his residence
without a warrant. Floyd gave him permission to search his bedroom, wherein the officer
found drug paraphernalia. Floyd was advised of his rights. After consenting to another
search of his bedroom, which revealed more drug paraphernalia, Floyd was arrested,
compelled to give a DNA sample, and then released. He claims that he was not given a
court appearance until April 11, 2014, that no affidavit of probable cause was filed with
the criminal complaint, that 369 days elapsed until he was sentenced, and that he filed a
suppression motion that was ignored.
Floyd claims that on April 11, 2014, Officer Anglemeyer, accompanied by
Probation Officer Kurt Zitsch, entered and searched Floyd’s residence. Because Floyd
appeared to be moving furtively, both probation officers handcuffed Floyd, patted him
2 down, and searched his body and pockets.1 Officer Licata arrived with his K-9 unit.
Floyd claims that he gave consent to search his living quarters only, but instead his entire
house was searched without a warrant. The search revealed some aluminum wraps that
did not contain cocaine. As a result of the officers’ findings, Floyd was arrested. At the
booking center, 12 packets of powder cocaine were recovered from Floyd’s person.
Floyd claims that Officer’s Licata and Ishman falsified the date and time of their reports
making his arrest and incarceration illegal. While the exact nature of Floyd’s claims is
unclear, he appears to be bringing Fourth Amendment and malicious prosecution claims.
Floyd seeks monetary damages, and requests that the evidence from the search of his
home be suppressed and returned.
In June 2017, Floyd filed a motion for appointment of counsel, which the District
Court denied by order entered on June 13, 2017. Shortly thereafter, the Magistrate Judge
concluded that Floyd’s amended complaint failed to state a claim upon which relief could
be granted and recommended dismissing his claims with prejudice. Neither party filed
objections. By order entered on August 8, 2017, the District Court adopted the
Magistrate Judge’s report and dismissed Floyd’s amended complaint with prejudice.
Floyd appeals both the June 13, 2017, and August 8, 2017 District Court orders. He also
seeks the appointment of counsel.
1 It is unclear from the amended complaint and the exhibits what exactly was in Floyd’s pockets, but at some point, Floyd was found to be in the possession of two cell phones and $396 in cash. 3 We have jurisdiction pursuant to 28 U.S.C. § 1291. Because Floyd has been
granted in forma pauperis status pursuant to 28 U.S.C. § 1915, we review this appeal for
possible dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B). We may summarily affirm
under Third Circuit LAR 27.4 and I.O.P. 10.6 if the appeal lacks substantial merit.
We exercise plenary review over the District Court’s order dismissing Floyd’s complaint.
See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000).
We address matters that are relatively straightforward first. We agree with the
District Court that Floyd has failed to allege any action in his amended complaint that
would be adequate to demonstrate personal involvement on the part of Judge Jennings or
the Pennsylvania Attorney General in connection with any claim. See Rode v.
Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). We further conclude that the doctrine
of sovereign immunity protects the Commonwealth of Pennsylvania from liability. The
Eleventh Amendment bars suits in federal court by private parties against states, state
agencies, and state officials in their official capacities, absent consent by the state, see
Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 267-70 (1997), and no exception
applies here, see Lavia v. Pa. Dep’t of Corr., 224 F.3d 190, 195 (3d Cir. 2000).
Floyd’s claims of malicious prosecution and fabrication of evidence, in which he
alleges that Officers Turchetta, Antoni, Licata, and Isman mixed up the times stated in
the reports and docket numbers from which evidence was obtained, and that a deposition
transcript was falsified because it lacks a docket number, signature, and certification, are
barred under Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the United States
Supreme Court held that “in order to recover damages for allegedly unconstitutional
4 conviction or imprisonment, or for other harm caused by actions whose unlawfulness
would render a conviction or sentence invalid,” a plaintiff bringing a § 1983 action must
prove that his conviction or sentence has been reversed on appeal, expunged, or called
into question. Id. at 486-87. Because Floyd’s malicious prosecution and fabrication of
evidence claims do not accrue until the criminal proceedings have terminated in Floyd’s
favor, and Floyd has not demonstrated as much, they are barred by Heck. See 512 U.S. at
489; see also Bradford v. Scherschligt, 803 F.3d 382, 388-89 (9th Cir. 2015) (treating
claim alleging fabrication of evidence in the same way as claim of malicious prosecution
for accrual purposes).
We turn now to Floyd’s Fourth Amendment claims. Floyd claims that several
officer defendants violated the Fourth Amendment in connection with the searches and
arrests that were performed on February 11, 2014, and April 11, 2014. First, because
Floyd was on probation, the officers did not need probable cause or a warrant to enter his
home or search his home or bedroom on the dates in question. See United States v.
Knights, 534 U.S. 112, 121 (2001) (holding that search of probationer’s residence
supported by reasonable suspicion did not violate Fourth Amendment); 42 Pa. Cons. Stat.
§ 9912(d)(2) (providing that state probation officers may search and seize the property of
offenders “if there is reasonable suspicion to believe that the real or other property in the
possession of or under the control of the offender contains contraband or other evidence
of violations of the conditions of supervision”). Floyd does not allege that the officers
lacked reasonable suspicion to enter his home or search his home and bedroom. In fact,
Floyd states in his amended complaint that “[h]e gave consent to search living quarters,
5 as always.” Similarly, because the possession of drugs and drug paraphernalia violated
the terms of Floyd’s probation, the officers were permitted to seize the evidence without
a warrant. See 42 Pa. Cons. Stat. § 9912(b).
Floyd also alleges that Detective Cornick and Officer Licata arrested Floyd in his
home without a warrant on the dates in question. To the extent that Floyd is attempting
to raise claims of false arrest, the claims must fail as Floyd does not allege the absence of
probable cause, much less any facts from which it can reasonably inferred that Detective
Cornick and Officer Licata lacked probable cause to arrest him. See James v. City of
Wilkes-Barre, 700 F.3d 675, 680 (3d Cir. 2012). Moreover, the contraband found on
Floyd and in his residence gave the officers probable cause to believe that Floyd had
committed a crime.2
Finally, we conclude that the District Court did not abuse its discretion in denying
Floyd’s motion for appointment of counsel, and we will likewise deny the motion for
appointment of counsel before this Court. See Tabron v. Grace, 6 F.3d 147, 155 (3d Cir.
1993).
Accordingly, we will summarily affirm the District Court’s orders.
2 We agree with the District Court that further amendment would be futile, as Floyd has already been granted leave to amend once and failed to correct the deficiencies in his initial complaint. See Alvin v. Suzuki, 227 F.3d 107, 121 (3d Cir. 2000) (holding “amendment is futile if the amended complaint would not survive a motion to dismiss for failure to state a claim upon which relief could be granted”). 6