Marcello Giallorenzo v. Beaver County

BLD-286 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 06-4893
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MARCELLO GIALLORENZO,
Appellant,
v.
BEAVER COUNTY; JEFFREY PALADINA, individually;
J. T. ENGEL, individually
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On Appeal From the United States District Court
For the Western District of Pennsylvania
(W.D. Pa. Civ. No. 06-cv-0354)
District Judge: Honorable Terrence F. McVerry
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Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
June 28, 2007
Before: MCKEE, FUENTES AND VAN ANTWERPEN, CIRCUIT JUDGES.
(Filed July 20, 2007)
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OPINION
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PER CURIAM
Appellant, Marcello Giallorenzo, appeals pro se from the District Court’s order
granting the defendants’ motion to dismiss his complaint. For the reasons set forth below,

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we will summarily affirm the District Court’s order. See I.O.P. 10.6.
On February 16, 2005, Giallorenzo was sentenced to a 30-day term of probation for
assaulting Maggie Bruce, his girlfriend and the mother of his child. Several days later,
Giallorenzo—while still on probation—was again arrested for assaulting Ms. Bruce, and
was subsequently charged with unlawful restraint, simple assault, and harassment.
Giallorenzo was released on bail pending a hearing on the criminal charges. Meanwhile,
Probation Officer J.T. Engel had the district attorney’s office file a petition for violation
of probation.
On March 18, 2005, Giallorenzo and Ms. Bruce appeared for a preliminary hearing
on Giallorenzo’s criminal charges. Prior to the hearing, Assistant District Attorney
(“ADA”) Paladina offered Giallorenzo a plea bargain, but he refused on the grounds that
he had proof that Ms. Bruce was lying. ADA Paladina then asked the district justice to
revoke Giallorenzo’s bail bond. As a result, the district justice revoked his bail and
placed him in a holding cell until he could be transported to the Beaver County jail.
Three days later, on March 21, 2005, Giallorenzo’s counsel attempted to have the bond
order reinstated, but Giallorenzo was not released because Probation Officer Engel had
placed a detainer on him. On March 31, 2005, following a hearing on Giallorenzo’s
motion to set bail and lift the detainer, the bond order was reinstated and Giallorenzo was
released.
On March 17, 2006, Giallorenzo commenced a civil rights action under 42 U.S.C.

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§ 1983 in the U.S. District Court for the Western District of Pennsylvania against Beaver
County, ADA Paladina, and Probation Officer Engel. In the counseled complaint,
Giallorenzo alleged that his constitutional rights had been violated when defendants
revoked the bail bond on his second assault charge and filed a detainer against him.
Specifically, Giallorenzo argued that the defendants had him “unlawfully detained for the
dubiously stated reason that Giallorenzo did not have counsel present at his preliminary
hearing,” and “without any facts or circumstances to reasonably indicate that he had
violated the terms of his probation.” Giallorenzo also brought claims for defamation and
abuse of process under Pennsylvania law. On October 31, 2006, the District Court
dismissed with prejudice the claims brought under 42 U.S.C. § 1983, and declined to
exercise supplemental jurisdiction over the state law claims. The present appeal
followed.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. See Tourscher
v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999). After a careful review of the record,
we conclude that the appeal presents “no substantial question” under Third Circuit LAR
27.4 and I.O.P. 10.6. We will therefore summarily affirm the District Court's order on the
grounds that Giallorenzo’s claims are not cognizable in an action under § 1983.
It is well-settled that when a state prisoner is challenging the fact or duration of his
confinement, his sole federal remedy is a writ of habeas corpus, not a § 1983 action.
Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). In Heck v. Humphrey, the Supreme

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Given that Giallorenzo failed to state a cognizable federal claim, the District Court1
properly declined to exercise jurisdiction over Giallorenzo’s state law claims. See 28
U.S.C. § 1367(c)(3).
Although Giallorenzo was not given an opportunity to amend the complaint, we2
conclude that any such amendment would have been futile. See Grayson v. Mayview
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Court held that “harm caused by actions whose unlawfulness would render a conviction
or sentence invalid” is not cognizable under 42 U.S.C. § 1983, unless the conviction or
sentence was “reversed on direct appeal, expunged by executive order, declared invalid
by a state tribunal authorized to make such a determination, or called into question by a
federal court's issuance of a writ of habeas corpus.” 512 U.S. 477, 486-87 (1994).
Here, Giallorenzo seeks damages under § 1983 for his incarceration resulting from
the allegedly unconstitutional revocation of his bail and issuance of a detainer. A
favorable outcome on this claim would necessarily demonstrate the invalidity of his
detention. Further, Giallorenzo has not established that the state courts invalidated the
district justice’s decision to revoke his bail or honor the detainer. And, as we have
recently made clear, dismissal of a § 1983 claim is appropriate despite the fact that a
litigant such as Giallorenzo is no longer in custody and can no longer seek federal habeas
corpus relief. See Williams v. Consovoy, 453 F.3d 173, 177-78 (3d Cir. 2006); Gilles v.
Davis, 427 F.3d 197, 210 (3d Cir. 2005). Therefore, Heck and its progeny preclude
Giallorenzo from bringing this claim under § 1983.1
For the foregoing reasons, we conclude that there is no substantial question
presented by this appeal. Accordingly, we will summarily affirm the District Court’s2

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State Hosp., 293 F.3d 103, 108 (3d Cir. 2003).
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dismissal of Giallorenzo’s complaint. See Third Cir. LAR 27.4; I.O.P. 10.6. We note,
however, that a dismissal pursuant to Heck is necessarily a without-prejudice dismissal.
See Fottler v. United States, 73 F.3d 1065, 1065-66 (10 cir. 1996).th

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