Third Circuit disposition — 064027np-pdf

BLD-167 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 06-4027
________________
FREDERICK JOHN DAVIS,
Appellant
vs.
COMMONWEALTH OF PENNSYLVANIA
____________________________________
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civ. No. 05-cv-02025)
District Judge: Honorable William J. Nealon
_______________________________________
Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
March 22, 2007
Before: MCKEE, FUENTES and WEIS, Circuit Judges
(Filed: April 17, 2007)
OPINION
PER CURIAM.
Frederick John Davis, proceeding pro se, appeals an order of the United
States District Court for the Middle District of Pennsylvania dismissing his civil rights
complaint. While awaiting trial on charges including first-degree murder, Davis filed a
complaint in the District Court asserting a claim under 42 U.S.C. § 1983 against the

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1 A jury convicted Davis of the murder charge shortly after he filed this appeal. See
Commonwealth v. Davis, Court of Common Pleas of Monroe County, Pennsylvania,
docket number CP-45-CR-0000651-2005. To the extent that Davis’ claim implies the
invalidity of his conviction, it is barred by Heck v. Humphrey, 512 U.S. 477, 486-87
(1994).
2
Commonwealth of Pennsylvania. He alleges in the complaint that the Commonwealth
fabricated evidence against him, and he requests monetary and injunctive relief. The
District Court granted the Commonwealth’s motion to dismiss the complaint, and Davis
now appeals. 1 Because Davis is proceeding in forma pauperis, we must dismiss the
appeal if it lacks an arguable factual or legal basis. 28 U.S.C. § 1915(e)(2)(B); Neitzke v.
Williams, 490 U.S. 319, 325 (1989).
We agree with the District Court that the Commonwealth is not a proper
defendant in an action under § 1983, see Will v. Michigan Dep’t of State Police, 491 U.S.
58, 71 (1989), and the suit is barred by the Eleventh Amendment, see Laskaris v.
Thornburgh, 661 F.2d 23, 25 (3d Cir. 1981). Because Davis does not allege misconduct
by any person amenable to suit under § 1983, the District Court did not need to afford
Davis an opportunity to amend his complaint prior to granting the Commonwealth’s
motion to dismiss. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir.
2002) (noting that leave to amend may be denied on futility grounds).
Accordingly, we will dismiss the appeal under 28 U.S.C. § 1915(e)(2)(B).
The motions for waiver of fees and for oral argument by video conference are denied.

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