Anthony Montez Brown v. Anthony Calabro

BLD-091 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-4011
___________
ANTHONY MONTEZ BROWN,
Appellant
v.
ANTHONY CALABRO; JESSICA BARTALOTTA; CHIEF PAUL PORFIRO;
JUDGE DAVID W. LUPAS
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 3:12-cv-01065)
District Judge: Honorable A. Richard Caputo
____________________________________
Submitted for Possible Summary Action Pursuant to
Third Circuit LAR 27.4 and I.O.P. 10.6
January 17, 2013
Before: SCIRICA, HARDIMAN and GREENAWAY, JR, Circuit Judges
(Opinion filed January 30, 2013)
_________
OPINION
_________
PER CURIAM
Anthony Montez Brown appeals pro se from the District Court‟s order dismissing
his complaint. Because the appeal presents no substantial question, we will summarily
affirm the District Court‟s order.

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I.
In 2012, Brown filed a civil rights complaint in the United States District Court for
the Middle District of Pennsylvania. In the complaint, as amended, he claimed that the
defendants – three Luzerne County police officers and one Court of Common Pleas judge
– committed various forms of alleged misconduct, including: failing to arrest his
neighbor for shooting a BB gun at Brown‟s house; failing to arrest a driver for driving
while intoxicated; defaming Brown by referring to him as a “ninja”; filing a police
statement on Brown‟s behalf under false pretenses; and prosecuting Brown for a crime
committed by someone else. Brown sought the return of his firearms, investigations into
police and judicial misconduct, and damages.
The Magistrate Judge recommended dismissing with prejudice Brown‟s complaint
under 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim. In particular, the Magistrate
Judge reasoned that (1) Brown lacked a judicially cognizable interest in having charges
filed against his neighbor and the driver; (2) Brown failed to allege that the police
department illegally seized his firearms; (3) Brown‟s defamation claim was not
cognizable under 42 U.S.C. § 1983; (4) Brown failed to allege that the police report was
used against him at his criminal trial in violation of the Constitution; (5) Brown could not
recover damages from Judge Lupas because judges are absolutely immune from suits for
monetary damages arising from their judicial acts; and (6) Brown could not seek the
termination of his criminal trial by way of a section 1983 claim. After reviewing the
complaint de novo in light of Brown‟s objections to the Report and Recommendation, the

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District Court issued an order adopting the Report and Recommendation and dismissing
with prejudice Brown‟s complaint. Brown timely appealed to this Court.
II.
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291, and exercise plenary
review over the District Court‟s dismissal of the complaint under section 1915(e)(2)(B).
See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). Complaints brought pursuant
to section 1983 “need only satisfy the notice pleading standard of Rule 8(a).” Thomas v.
Independence Twp., 463 F.3d 285, 295 (3d Cir. 2006). However, a plaintiff must plead
more than mere labels and conclusions, and a complaint “must contain sufficient factual
matter, accepted as true, to „state a claim to relief that is plausible on its face.‟” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). We may summarily affirm a judgment of the District Court on any basis
supported by the record if the appeal does not raise a substantial question. See I.O.P.
10.6; see also Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011).
The District Court correctly dismissed Brown‟s claim that the government failed
to prosecute his neighbor and a driver. “[A] private citizen lacks a judicially cognizable
interest in the prosecution or nonprosecution of another,” Linda R.S. v. Richard D., 410
U.S. 614, 619 (1973), and prosecutors enjoy absolute immunity for the decision to initiate
a prosecution, see Kulwicki v. Dawson, 969 F.2d 1454, 1463-64 (3d Cir. 1992). For
these reasons, Brown‟s claim that the police department failed to investigate and

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prosecute the activities of his neighbor and of another driver is not one upon which relief
may be granted.
Brown‟s complaint also failed to allege any actions on the part of any of the
defendants relating to the seizure of his firearms. Although he claimed that Defendant
Bartolotta made a vague statement indicating that Brown may lose his firearms, such a
statement does not rise to a violation of Brown‟s constitutional rights. Therefore,
dismissal of this claim under section 1915(e)(2)(B) was proper.
Nor has Brown pleaded a civil rights cause of action for defamation.
“[D]efamation is actionable under 42 U.S.C. § 1983 only if it occurs in the course of or is
accompanied by a change or extinguishment of a right or status guaranteed by state law
or the Constitution.” Clark v. Twp. of Falls, 890 F.2d 611, 619 (3d Cir. 1989) (citing
Paul v. Davis, 424 U.S. 693, 701–12 (1976)); see also Sturm v. Clark, 835 F.2d 1009,
1012 (3d Cir. 1987) (“Absent the alteration or extinguishment of a more tangible interest,
injury to reputation is actionable only under state defamation law.”) (internal citation
omitted). Here, Brown alleged only that Defendant Porfiro referred to him as a ninja.
Brown did not allege that he suffered the extinguishment of a right or status guaranteed
by state law or the Constitution, and has not stated a civil rights action for defamation.
Brown also failed to raise a cognizable claim for the allegedly unconstitutional
filing of a police statement on his behalf. To the extent that Brown alleged a violation of
the Fifth Amendment Self-Incrimination Clause, his claim would have been precluded by
the “favorable termination rule.” See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994)

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(requiring “a § 1983 plaintiff [to] prove that [his] conviction or sentence has been
reversed on direct appeal, expunged by executive order, declared invalid by a state
tribunal authorized to make such determination, or called into question by a federal
court‟s issuance of a writ of habeas corpus” in order to recover damages for allegedly
unconstitutional conviction or imprisonment).
Brown‟s claim against Defendant Judge Lupas fails as well. It is a well-
established principle that a judge “in the performance of his duties has absolute immunity
from suit and will not be liable for his judicial acts.” Azubuko v. Royal, 443 F.3d 302,
303 (3d Cir. 2006) (citing Mireles v. Waco, 502 U.S. 9, 12 (1991)). “A judge will not be
deprived of immunity because the action he took was in error, was done maliciously, or
was in excess of his authority; rather, he will be subject to liability only when he has
acted in the clear absence of all jurisdiction.” Id. (quoting Stump v. Sparkman, 435 U.S.
349, 356-57 (1978)). The allegations in Brown‟s complaint relate to action taken by
Judge Lupas in his capacity as a judge, and Brown has not alleged that Judge Lupas
clearly lacked jurisdiction. Thus, Brown‟s allegations are insufficient to overcome Judge
Lupas‟ judicial immunity.
Lastly, it would have been against public policy for the District Court to grant
Brown‟s request to terminate the criminal proceedings against him while they were
ongoing. See Younger v. Harris, 401 U.S. 37, 43-44 (1971) (recognizing that the
“longstanding public policy against federal court interference with state court
proceedings” generally requires federal courts to abstain from involvement in state

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criminal proceedings). Moreover, now that his criminal case has resulted in a conviction,
Brown‟s claim may be brought only as a petition for writ of habeas corpus. See Preiser
v. Rodriguez, 411 U.S. 475, 500 (1973) (stating that “when a state prisoner is challenging
the very fact or duration of his physical imprisonment, and the relief he seeks is a
determination that he is entitled to immediate release or a speedier release from that
imprisonment, his sole federal remedy is a writ of habeas corpus.”); Williams v.
Consovoy, 453 F.3d 173, 177 (3d Cir. 2006).
We have held that a district court should not dismiss a pro se complaint without
allowing the plaintiff leave to amend unless amendment would be inequitable or futile.
See Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004); Grayson v. Mayview State
Hosp., 293 F.3d 103, 108 (3d Cir. 2002). Here, Brown already filed an amended
complaint, and the District Court appropriately determined that further amendment would
be futile.
Accordingly, this appeal presents us with no substantial question, and we will
summarily affirm the District Court‟s order. See 3rd Cir. LAR 27.4 and I.O.P. 10.6.
Brown‟s motion for appointment of counsel is denied.

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