Alex Lovejoy v. Richard Lewis, et al

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: FISHER, SHWARTZ and BARRY, Circuit Judges. Total Pages: 4. CLD-079

Case: 16-4107

Document: 003112504821

Page: 1

CLD-079

Date Filed: 01/06/2017

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-4107
___________
ALEX LEROY LOVEJOY
v.
RICHARD A. LEWIS; MICHAEL L. ROZMAN;
EDWARD M. MARSICO, JR.; JOSEPH P. CARDINALE, JR.
Alex L. Lovejoy, Appellant
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 3-15-cv-02495)
District Judge: Honorable Robert D. Mariani
____________________________________

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, 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.

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Alex Leroy Lovejoy appeals from the District Court’s dismissal of his complaint.
We will summarily affirm.
In December 2015, Lovejoy, an inmate confined at SCI-Graterford, filed a civil
rights complaint pursuant to 42 U.S.C. § 1983 in the Middle District of Pennsylvania,
alleging violations of his Fifth, Eighth, Thirteenth, and Fourteenth Amendment rights.
Lovejoy contended that on March 22, 2001, President Judge Richard A. Lewis of the
Dauphin County Court of Common Pleas instructed Lovejoy “to never come back to the
State of Pennsylvania” and that if Lovejoy did, Judge Lewis would “make an example
out of him.”
In October 2002, a jury found Lovejoy guilty of third-degree murder. Lovejoy
claimed that Judge Lewis made good on his promise to “make an example” of him by
improperly disregarding a juror’s ambiguous response during the post-verdict juror
polling in front of Lovejoy at the conclusion of the trial,1 and sentencing him to twentyto-forty years’ incarceration for third-degree murder as if the jury had reached a
unanimous verdict. In addition to the claims asserted against Judge Lewis, Lovejoy also
named Dauphin County District Attorney Edward M. Marsico, Jr., Dauphin County
Deputy District Attorney Joseph P. Cardinale, Jr., and Dauphin County Assistant District
Attorney Michael L. Rozman for failing to intervene or correct the alleged injustice.

1

Lovejoy alleges that when the jurors were polled for their verdict for the charge of
murder in the third degree, one juror, who had previously voted “Not guilty” for murder
in the first degree, responded “As I wrote.” Lovejoy claims that this response indicates a
“not guilty” verdict, which would have resulted in “hanging the jury.”
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In June 2016, pursuant to 28 U.S.C. §§ 1915(e) and 1915A(a), the Magistrate
Judge recommended dismissing Lovejoy’s complaint with prejudice as his claims were
barred by the statute of limitations, and explained that amendment would be futile as the
statute of limitations had lapsed eleven years prior. Over Lovejoy’s objections, the
District Court, by order entered on October 31, 2016, adopted the recommendations of
the Magistrate Judge. Lovejoy appeals.
We have jurisdiction pursuant to 28 U.S.C. § 1291. Because Lovejoy 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 exercise plenary review of
the District Court's order dismissing Lovejoy’s complaint. See Allah v. Seiverling, 229
F.3d 220, 223 (3d Cir. 2000).
We agree with the District Court that Lovejoy’s complaint is barred by the statute
of limitations for the reasons given by the Magistrate Judge in her Report and
Recommendations. Moreover, we agree with the District Court that even if the complaint
were timely, it is also barred under Heck v. Humphrey, 512 U.S. 477 (1994). In Heck,
the United States Supreme Court unequivocally held that “in order to recover damages
for allegedly unconstitutional 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
Lovejoy’s allegations — that he was denied his Sixth Amendment right to a unanimous
verdict, see United States v. Edmonds, 80 F.3d 810, 815 (3d Cir. 1996), and was
3 

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therefore erroneously sentenced — necessarily challenge the legality of his conviction
and sentence, he must demonstrate that his conviction has been invalidated to proceed
with this suit. He has failed to do so. Thus, the District Court properly dismissed his
complaint under Heck.2
Because the appeal does not present a substantial question, we will summarily
affirm the judgment of the District Court. 

2

Lovejoy’s complaint, which sought damages from both the presiding judge and the
prosecutors involved in his case, is also barred under the doctrines of judicial and
prosecutorial immunity. See Pierson v. Ray, 386 U.S. 547, 553-54 (1967) (holding
judges are immune “from liability for damages for acts committed within their judicial
jurisdiction” even when “accused of acting maliciously and corruptly”); see also Buckley
v. Fitzsimmons, 509 U.S. 259, 273 (1993) (holding “acts undertaken by a prosecutor in
preparing for the initiation of judicial proceedings or for trial, and which occur in the
course of his role as an advocate for the State, are entitled to the protections of absolute
immunity”).
4