Brian Lyszkowski v. Diane Gibbons, et al

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: GREENAWAY, JR., GREENBERG and ROTH, Circuit Judges. Total Pages: 7.

Case: 16-2310

Document: 003112592896

Page: 1

Date Filed: 04/13/2017

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-2310
___________
BRIAN JOSEPH LYSZKOWSKI,
Appellant
v.
DIANE E. GIBBONS; LISA ANNE SILVESTRI; KAREN R. BRAMBLETT
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(E.D. Pa. No. 2-15-cv-02210)
District Judge: Honorable Mark A. Kearney
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 9, 2016
Before: GREENAWAY, JR., GREENBERG and ROTH, Circuit Judges

(Opinion filed: April 13, 2017)
___________
OPINION*
___________
PER CURIAM
Pro se appellant Brian Lyszkowksi appeals from the District Court’s order
granting Defendants’ motions to dismiss his Second Amended Complaint filed under 42
U.S.C. § 1983. We will affirm.
*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

Case: 16-2310

Document: 003112592896

Page: 2

Date Filed: 04/13/2017

I.
Lyszkowksi initiated this action in 2015 against Bucks County, Pennsylvania,
Common Pleas Judge Diane Gibbons, Bucks County Probation Officer Lisa Silvestri, and
Karen Bramblett, a then-Pennsylvania Superior Court Prothonotary. The gravamen of
Lyszkowksi’s complaint is that Gibbons and Silvestri denied him due process of law at
his 2013 probation violation hearing – where Judge Gibbons revoked his probation and
sentenced him to a term of confinement – and that Bramblett improperly docketed his
notice of appeal from that judgment, thwarting his appeal to the Superior Court.
In 2012, Lyszkowksi was placed on 18 months’ probation in Bucks County after
he pleaded guilty to several drug offenses. On April 5, 2013, Judge Gibbons ordered a
probation violation hearing for May 1, 2013, on a praecipe filed by Silvestri alleging that
Lyszkowksi violated his probation in numerous respects.1 In response, on April 26,
2013, Lyszkowksi filed a “Motion to Strike Adult Probation and Parole Department
Document for Material Falsehoods,” challenging the factual basis for the alleged
violations. At the May 1, 2013, hearing, Judge Gibbons denied Lyszkowksi’s motion to
strike, revoked his probation, and sentenced him to a term of confinement of six to 12
months. On May 10, 2013, Lyszkowksi filed a “Motion to Modify and Reconsider

At the violation hearing, Silvestri “described his flagrant disregard of probation rules,
including [his] failure to submit to drug testing, his admitted illegal drug use, failure to
follow safety protocol, his involvement in the citizen extremist movement [and]
antigovernment activities, all of which made him unsupervisable by [the probation]
department.” Commonwealth. v. Lyszkowski, No. 1681 EDA 2013, 2014 WL 10965195,
at *2 (Pa. Super. Ct. Apr. 25, 2014) (internal quotation marks omitted).
1

2

Case: 16-2310

Document: 003112592896

Page: 3

Date Filed: 04/13/2017

Sentence,” which Judge Gibbons denied on May 29, 2013. Lyszkowksi then filed a
notice of appeal to the Superior Court on June 6, 2013, and the Superior Court affirmed
the judgment of sentence on April 25, 2014, finding that “[t]he lower court was free to
believe the evidence proffered by the probation officer that Lyszkowski violated his
probation and was free to reject Lyszkowski’s bald assertion that this evidence was
false.” Lyszkowski, 2014 WL 10965195, at *5.
Lyszkowksi now claims in this action that Silvestri improperly engaged in an ex
parte meeting with Judge Gibbons prior to the hearing, with the purpose to “inflame
Gibbons to incarcerate [Lyszkowksi] for the maximum term,” and that Judge Gibbons
“arbitrarily” denied his motion to strike. He claims that Gibbons and Bramblett
intentionally prevented appellate review of his sentence by improperly docketing his
notice of appeal.
On February 2, 2016, the District Court granted Defendants’ motions to dismiss
Lyszkowksi’s Amended Complaint, without prejudice, finding that Judge Gibbons was
entitled to judicial immunity, and that Silvestri and Bramblett were entitled to quasijudicial immunity. After Lyszkowksi filed a substantially similar Second Amended
Complaint, the Court granted Defendants’ motions to dismiss, with prejudice, finding
that, under Federal Rule of Civil Procedure 12(b)(6), he “still did not plead facts
overcoming the immunity afforded to public servants.” Following the Court’s denial of
his motion filed under Federal Rule of Civil Procedure 59(e), this timely appeal ensued.
II.
3

Case: 16-2310

Document: 003112592896

Page: 4

Date Filed: 04/13/2017

We have jurisdiction under 28 U.S.C. § 1291. We review the District Court’s
dismissal of a complaint under Rule 12(b)(6) de novo and ask whether it has “sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on [its] face.”
Fantone v. Latini, 780 F.3d 184, 186, 193 (3d Cir. 2015) (citing Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009)). “We review motions to alter or amend a judgment filed pursuant
to Rule 59(e) . . . for abuse of discretion, except over matters of law, which are subject to
plenary review.” Addie v. Kjaer, 737 F.3d 854, 867 (3d Cir. 2013) (internal quotation
marks omitted). And we “may affirm a result reached by the district court on different
reasons, as long as the record supports the judgment.” Guthrie v. Lady Jane Collieries,
Inc., 722 F.2d 1141, 1145 n.1 (3d Cir. 1983).
We will affirm the District Court’s dismissal of Lyszkowksi’s claims against
Judge Gibbons on the basis of judicial immunity but will affirm the dismissal of his
remaining claims on other grounds. Judges are entitled to absolute immunity in § 1983
actions seeking monetary damages for actions performed in their judicial capacities
unless (1) the challenged action is “not taken in the judge’s judicial capacity,” or (2) the
action is “taken in the complete absence of all jurisdiction.” Gallas v. Sup. Ct. of Pa.,
211 F.3d 760, 768 (3d Cir. 2000). Lyszkowksi claims that Judge Gibbons arbitrarily
denied his motion to strike, improperly revoked his probation, and failed to correct an
alleged docketing error related to his notice of appeal. Because these actions, or
inactions, were taken in her judicial capacity, and not “in the clear absence of all
jurisdiction,” the District Court properly granted her immunity. Gallas, 211 F.3d at 769
4

Case: 16-2310

Document: 003112592896

Page: 5

Date Filed: 04/13/2017

(3d Cir. 2000) (“A judge will not be deprived of immunity because the action he took
was in error, was done maliciously, or was in excess of his authority; rather, he will be
subject to liability only when he has acted in the clear absence of all jurisdiction.”)
(internal quotation marks omitted).2
Lyszkowksi’s claim against Bramblett fails for a more fundamental reason – he
fails to allege any constitutionally cognizable injury arising from her conduct. To recover
under § 1983, “(1) the conduct complained of must have been done by some person
acting under color of law; and (2) such conduct must have subjected the complainant to
the deprivation of rights, privileges, or immunities secured to him by the Constitution and
laws of the United States.” Basista v. Weir, 340 F.2d 74, 79 (3d Cir. 1965). And a
complaint is properly dismissed where, as here, “no tenable theory of federal wrong is
apparent.” Rodes v. Mun. Auth. of Borough of Milford, 409 F.2d 16, 17 (3d Cir. 1969).
Lyszkowksi claims that Bramblett’s docketing error thwarted his appeal to
Superior Court. But even if she committed such an error, Lyszkowksi did not suffer the
type of harm necessary to state a viable claim under § 1983 because the Superior Court
addressed his appeal on its merits, without limitation.3

2

A Rule 12(b)(6) dismissal on the basis of absolute immunity is appropriate so long as
“the allegations of [the] complaint . . . indicate the existence of absolute immunity as an
affirmative defense,” and “the defense . . . clearly appear[s] on the face of the complaint.”
Wilson v. Rackmill, 878 F.2d 772, 776 (3d Cir. 1989). Both conditions are met here.
3
Lyszkowksi claims that Bramblett improperly docketed his June 6, 2013, notice of
appeal as an appeal from the May 1, 2013, judgment of sentence – rather than from the
court’s May 29, 2013, order denying his motion to modify – rendering his appeal
untimely, and that neither Bramblett nor Gibbons corrected this error. But a defendant
5

Case: 16-2310

Document: 003112592896

Page: 6

Date Filed: 04/13/2017

Finally, Lyszkowksi claims that Silvestri improperly “inflame[d] Gibbons to
incarcerate [him] for the maximum term.” This claim is barred by Heck v. Humphrey,
512 U.S. 477 (1994), because it essentially seeks to challenge the length of his sentence –
whether imposition of the maximum term was improper. In Heck, “the Supreme Court
held that where success in a § 1983 action would implicitly call into question the validity
of conviction or duration of sentence, the plaintiff must first achieve favorable
termination of his available state or federal habeas remedies to challenge the underlying
conviction or sentence.” Williams v. Consovoy, 453 F.3d 173, 177 (3d Cir. 2006) (citing
Heck). Heck applies to claims against probation officer related to probation revocation
decisions. Crow v. Penry, 102 F.3d 1086, 1087 (10th Cir. 1996) (per curiam).
Here, Lyszkowksi seeks relief4 under § 1983, arguing that the sentencing court
improperly imposed the maximum term of confinement, but he has not successfully

seeking to appeal a probation revocation order must do so within 30 days of that order,
and the court’s denial of a motion to modify sentence does not extend the 30-day appeal
period. See Commonwealth v. Coleman, 721 A.2d 798, 799 (Pa. Super. Ct. 1998) (per
curiam). Thus Lyszkowksi’s notice of appeal – filed more than 30 days after the
revocation order – was untimely, no matter how it was docketed. At any rate, the alleged
docketing error had no impact on his appeal because the Superior Court “g[a]ve
Lyszkowski the benefit of the doubt and exercise[d] jurisdiction over his appeal.”
Lyszkowski, 2014 WL 10965195, at *2. Thus, at most, Bramblett’s alleged docketing
error may have caused Lyszkowksi to experience some anxiety or uncertainty about the
status of his appeal. But “[t]rivial or frivolous invasions of personal rights are not
cognizable under 42 U.S.C. § 1983.” Brown v. Bigger, 622 F.2d 1025, 1027 (10th Cir.
1980) (per curiam).
He seeks both damages and an unspecified declaratory judgment. But “a state
prisoner’s § 1983 action is barred (absent prior invalidation)—no matter the relief sought
4

6

Case: 16-2310

Document: 003112592896

Page: 7

Date Filed: 04/13/2017

challenged that sentence in any state or federal proceeding.5 And because a favorable
decision in this action would necessarily call into question the duration of that sentence,
this action is not cognizable under Heck. See Williams, 453 F.3d at 177. Accordingly,
we will affirm the orders of the District Court granting Defendants’ motions to dismiss
and denying Lyszkowksi’s motion filed under Rule 59(e). However, because it appears
that the District Court improperly applied the doctrine of quasi-judicial immunity to
dismiss the claims against Silvestri with prejudice,6 we will modify the order of dismissal
to reflect that these claims are dismissed without prejudice. See Curry v. Yachera, 835
F.3d 373, 379 (3d Cir. 2016) (holding that a dismissal under Heck is without prejudice to
a claim’s reassertion following a favorable termination).

(damages or equitable relief) . . . if success in that action would necessarily demonstrate
the invalidity of confinement or its duration.” Wilkinson v. Dotson, 544 U.S. 74, 81-82
(2005).
5
The Superior Court affirmed the judgment of sentence, and Lyszkowksi has not initiated
any federal proceeding challenging his sentence.
6
When probation officers act in an executive capacity, i.e., “charg[ing] [a defendant]
with wrongdoing and present[ing] evidence to that effect,” they “are not entitled to
absolute [quasi-judicial] immunity from suit, but only to a qualified, good-faith
immunity.” Harper v. Jeffries, 808 F.2d 281, 284 (3d Cir. 1986). Because the allegation
against Silvestri relates to her presentation of evidence against Lyszkowski, she was
likely acting in an executive capacity and not entitled to quasi-judicial immunity. Thus it
appears that the District Court erred by dismissing Lyszkowksi’s claims on that basis
before considering whether Silvestri’s conduct met the standard for qualified immunity.
Harper, 808 F.2d at 284.
7