Anthony Blocker v. Noel Velez

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: FISHER, SHWARTZ and BARRY, Circuit Judges. Total Pages: 4. CLD-080. Blocker's request for appointment of counsel on appeal is denied.

Case: 16-3310

Document: 003112504780

Page: 1

CLD-080

Date Filed: 01/06/2017

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-3310
___________
ANTHONY CALIFE BLOCKER,
Appellant
v.
TPR. NOEL VELEZ
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(E.D. Pa. Civ. No. 5-16-cv-02227)
District Court Judge: Honorable Mark A. Kearney
____________________________________

Submitted for Possible Dismissal Due to Jurisdictional Defect,
Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B), and
Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
December 21, 2016
Before: FISHER, SHWARTZ and BARRY, Circuit Judges
(Opinion filed January 6, 2017)
_________
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.

Case: 16-3310

Document: 003112504780

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Date Filed: 01/06/2017

Anthony Calife Blocker appeals the District Court’s order dismissing his 42
U.S.C. § 1983 complaint. For the reasons discussed below, we will summarily affirm the
District Court’s order. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
Blocker, who was awaiting trial on state-law charges of unlawfully selling a noncontrolled substance, filed a § 1983 complaint in the District Court against Velez, the
Pennsylvania State Trooper who arrested him. Blocker raised claims of false arrest, false
imprisonment, malicious prosecution, and extortion. Blocker’s complaint did not provide
any factual support for these allegations; he attached to the complaint two letters from
Velez, but neither supported his claims. The District Court dismissed Blocker’s
complaint without prejudice. The Court explained that Blocker’s malicious prosecution
claim failed as a matter of law because he had not established that his criminal
proceedings had terminated in his favor, and that his other claims failed because Blocker
had not made the requisite factual showing.
Blocker then filed an amended complaint that incorporated his earlier allegations
and added the following paragraph from the criminal information that Velez had
prepared: “On August 11, 2014 at approximately 14:10 hrs in the first block of
Conestoga St, the Defendant did deliver approximately 1 gram of a NONcontrolled
substance represented to be heroin to a Confidential Informant, in exchange for $60.00
U.S. Currency.” The District Court again dismissed Blocker’s complaint without
prejudice, relying on both rationales provided in the initial order. Blocker appeals.

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We have jurisdiction under 28 U.S.C. § 1291 1 and exercise plenary review over
the District Court’s order dismissing Blocker’s amended complaint. See Allah v.
Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). Because this appeal presents no substantial
question, we will summarily affirm. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
We agree with the District Court’s analysis, as most clearly set forth in its initial
order. A “cause of action for malicious prosecution does not accrue until the criminal
proceedings have terminated in the plaintiff’s favor.” Heck v. Humphrey, 512 U.S. 477,
489 (1994). Blocker ultimately pleaded guilty to one count of selling a non-controlled
substance represented as heroin, and that conviction has not been set aside; the District
Court therefore properly dismissed this claim. See generally Curry v. Yachera, 835 F.3d
373, 379 (3d Cir. 2016).
While Blocker’s other claims do not face this same bar, see Montgomery v. De
Simone, 159 F.3d 120, 126 n.5 (3d Cir. 1998), the District Court correctly dismissed
Blocker’s complaint because it failed to state a claim. Blocker’s allegations that Velez
committed some type of misconduct are entirely conclusory, lack factual support, and do
not establish a facially plausible claim. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.”). Accordingly, we will affirm the District Court’s dismissal
1

Although the District Court dismissed Blocker’s complaint without prejudice, in his
notice of appeal, Blocker elected to stand on his complaint. Borelli v. City of Reading,
532 F.2d 950, 951-52 (3d Cir. 1976) (per curiam); see also Frederico v. Home Depot, 507
F.3d 188, 192 (3d Cir. 2007). Moreover, Blocker’s appeal is timely. His time to file an
appeal was extended under Fed. R. App. P. 4(a)(7)(A)(ii) because the District Court’s
dismissal order did not satisfy the requirements of the separate judgment rule. See Fed. R.
Civ. P. 58(a); In re Cendant Corp. Sec. Litig., 454 F.3d 235, 241 (3d Cir. 2006).
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of Blocker’s complaint. See, e.g., W. Run Student Hous. Assocs., LLC v. Huntington
Nat’l Bank, 712 F.3d 165, 169-70 (3d Cir. 2013). 2

2

Blocker’s request for appointment of counsel on appeal is denied. See Tabron v. Grace,
6 F.3d 147, 155 (3d Cir. 1993).
4