David Eric Allen v. Commonwealth of Pennsylvania Common Pleas

DLD-090 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 12-3680
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DAVID ERIC ALLEN,
Appellant
v.
COMMONWEALTH OF PENNSYLVANIA COMMON PLEAS; A.D.A. MR.
GENOVESE; PUBLIC DEFENDER ASSOCIATION, Norristown B.; MR. MICHAEL
JOHN, ESQ.; MR. RICHARD WINTER, ESQ.; CHIEF OFFICE OF CLERK COURT;
COURT MONTGOMERY COUNTY
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 12-cv-02649)
District Judge: Honorable James Knoll Gardner
____________________________________
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
January 17, 2013
Before: AMBRO, SMITH and CHAGARES, Circuit Judges
(Opinion filed: January 30, 2013)
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OPINION
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PER CURIAM
David Eric Allen is a Pennsylvania prisoner. In May and June 2012, he filed
complaints pursuant to 42 U.S.C. § 1983 challenging a number of events that allegedly

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occurred during the course of criminal proceedings in the Montgomery County Court of
Common Pleas nearly two decades ago. Specifically, Allen alleged that: (1) Richard
Winter, an attorney who represented Allen in the criminal proceedings, waived his right
to a preliminary hearing without obtaining Allen’s consent; (2) the Commonwealth of
Pennsylvania, the Montgomery County Court of Common Pleas, and the Montgomery
County Assistant District Attorney deprived him of due process of law by permitting
Attorney Winter to waive the preliminary hearing, and by later accepting his plea; (3) his
plea is invalid because the Court of Common Pleas failed to adequately explain its terms;
(4) Michael John, the public defender who represented him during the plea colloquy,
provided ineffective assistance, and deprived him of due process, by withdrawing his
representation instead of appealing the conviction; and (5) the Commonwealth, the
Common Pleas Court, and the Clerk of that court deprived him of due process by
improperly docketing a pro se post-sentence motion, thus causing him to lose his appeal
rights. Based on these allegations, Allen sought to withdraw his plea, requested damages,
and asked the District Court to vacate his conviction and sentence.
The District Court dismissed the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)
for failure to state a claim upon which relief may be granted. The District Court
concluded that: (1) to the extent that Allen sought to withdraw his plea and vacate his
sentence, such relief is available only in a habeas corpus action, see Preiser v. Rodriguez,
411 U.S. 475, 500 (1973); (2) Allen’s claims for damages in connection with the waiver
of his preliminary hearing and alleged invalidity of his guilty plea were foreclosed by

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Heck v. Humphrey, 512 U.S. 477, 486-87 (1994); (3) the Commonwealth and the
Montgomery County Court of Common Pleas were entitled to Eleventh Amendment
immunity, see Will v. Michigan Dep’t of State Police, 491 U.S. 58, 66 (1989); Benn v.
First Judicial Dist. of Pa., 426 F.3d 233, 240-41 (3d Cir. 2005); (4) Assistant District
Attorney Genovese was entitled to prosecutorial immunity, see Imbler v. Pachtman, 424
U.S. 409, 430 (1976); (5) Allen’s claims against his former attorneys and the
Montgomery County Public Defender Association fail because those defendants are not
state actors, see Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981); (6) to the extent that
Allen intended to state legal malpractice claims against his former attorneys, they were
time-barred under Pennsylvania law, see Wachovia Bank N.A. v. Ferretti, 935 A.2d 565,
571 (Pa. Super. Ct. 2007); and (7) Allen’s claims concerning the docketing of his post-
sentence motion were also time-barred, see 42 Pa. Const. Stat. Ann. § 5524.
Allen appeals pro se. Because we granted him leave to proceed in forma pauperis,
we must screen this appeal pursuant to 28 U.S.C. § 1915(e)(2)(B) to determine whether it
should be dismissed as frivolous. An appeal is frivolous when it “lacks an arguable basis
either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). Our review
confirms that there is no arguable basis to challenge the District Court’s decision for the
reasons stated by the District Court. We also agree with the District Court that there was
no need to provide Allen with leave to amend before dismissing his complaint because it
is apparent that amendment would have been futile. See Phillips v. County of Allegheny,

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515 F.3d 224, 236 (3d Cir. 2008). Accordingly, we will dismiss this appeal pursuant to
28 U.S.C. § 1915(e)(2)(B).

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