John M. Banda v. State of New Jersey

BPS-237 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 05-1043
________________
JOHN M. BANDA,
Appellant
v.
STATE OF NEW JERSEY; ATTORNEY GENERAL OF NEW JERSEY;
MARK SINGER, DEPUTY ATTORNEY GENERAL;
SERENA PERRETTI, JUDGE;
JAMES MCGREEVEY; FORMER N.J. GOVERNOR
_______________________________________
On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civ. No. 04-cv-05632)
District Judge: Honorable Anne E. Thompson
_______________________________________
Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
May 12, 2005
BEFORE: RENDELL, FISHER and VAN ANTWERPEN, CIRCUIT JUDGES
(Filed: June 7, 2005)
_______________________
OPINION
_______________________
PER CURIAM
John Banda appeals the order of the United States District Court for the District of
New Jersey dismissing his civil rights action. Banda is currently a resident of the Special

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The District Court subsequently denied Banda’s motion for reconsideration.1
Banda did not file an amended notice of appeal regarding this post-decision motion, so
the denial of the motion for reconsideration is not before us. See Fed. R. App.
P. 4(a)(4)(B).
2
Treatment Unit at Avenel, New Jersey. He filed a complaint pursuant to 42 U.S.C.
§ 1983 against the State of New Jersey, the state attorney general, a state court judge, and
the former governor. In his complaint, Banda alleged that the defendants violated his
constitutional rights when they abused their authority and unlawfully caused his civil
commitment under the Sexually Violent Predator Act, even though he was not convicted
of a sex offense. As relief, Banda sought unrestricted release from confinement,
correction and expungement of his court records, damages, and assorted other injunctive
relief. Banda was granted in forma pauperis status in District Court. The District Court
dismissed the complaint under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim
upon which relief may be granted.
Banda timely filed a notice of appeal. He has also filed a motion for a “protection1
clause,” seeking injunctive relief. We have jurisdiction pursuant to 28 U.S.C. § 1291.
Banda has been granted leave to proceed in forma pauperis on appeal. Upon
consideration of the record, we will dismiss the appeal under section 1915(e)(2)(B) for
lack of legal merit.
The District Court concluded that Banda’s section 1983 action cannot stand until
the findings that led to his civil commitment as a sexually violent predator are invalidated.

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3
See Heck v. Humphrey, 512 U.S. 477 (1994). We agree. Success on Banda’s claims
would necessarily imply the invalidity of his confinement and are not cognizable at this
time in a section 1983 action. See Wilkinson v. Dotson, — U.S. —, 125 S. Ct. 1242,
1248 (2005). The proper means of seeking immediate release from confinement, or
seeking an earlier release from confinement, is through a petition for writ of habeas
corpus. Preiser v. Rodriguez, 411 U.S. 475, 489 (1973). See also Brock v. Weston,
31 F.3d 887, 890 (9th Cir. 1994) (like criminal incarceration, involuntary commitment
satisfies section 2254's “in custody” requirement). Accordingly, the District Court
properly dismissed the complaint. We note, however, that a dismissal pursuant to Heck
should be without prejudice to Banda bringing a section 1983 action if he is ultimately
successful in invalidating his civil commitment. See Fottler v. United States, 73 F.3d
1065, 1065-66 (10th Cir. 1996).
Lastly, Banda’s motion for a “protection clause” seeks an order to protect him
from harassment by all employees of the State of New Jersey during the pendency of
these proceedings. To the extent that Banda’s motion relates to the matters raised in his
complaint, we deny the motion. To the extent that the motion raises new allegations
regarding the actions of unnamed staff members of the Special Treatment Unit, we deny
the motion, as these matters were not raised before the District Court and are not properly
before us on appeal.
We will dismiss this appeal under 28 U.S.C. § 1915(e)(2)(B).

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