CALVIN C. LOGAN; DAVID JOHNSON; ANDRE MARTIN, others similarly situated v. F. Emmett Fitzpatrick

AMENDED RESUBMIT CLD-74 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-3928
CALVIN C. LOGAN; DAVID JOHNSON;
ANDRE MARTIN, others similarly situated,
Appellants
v.
F. EMMETT FITZPATRICK; LYNNE ABRAHAM; PHILADELPHIA DISTRICT
ATTORNEY'S OFFICE; ROBERT P. KANE; THOMAS W. CORBETT, JR.;
PENNSYLVANIA ATTORNEY GENERAL'S OFFICE
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 06-cv-04450)
District Judge: Honorable Robert F. Kelly
Submitted for Possible Dismissal Due to a Jurisdictional Defect
or Pursuant to 28 U.S.C. § 1915(e)(2)(B)
June 2, 2008
Before: AMBRO, FUENTES and JORDAN, Circuit Judges
(Opinion filed: July 8, 2008)
OPINION
PER CURIAM
Calvin Logan, David Johnson, and Andre Martin appeal the District Court’s orders

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granting appellees’ motions to dismiss and denying appellants’ motion for
reconsideration. We will dismiss the appeal as legally frivolous pursuant to 28 U.S.C. §
1915(e)(2)(B).
The procedural history of this case and the details of appellants’ claims are well
known to the parties, set forth in the District Court’s thorough opinion, and need not be
discussed at length. Briefly, the appellants, who are serving life sentences, filed a civil
complaint alleging that their rights to fair trials were violated when they were tried and
sentenced under Pennsylvania’s death penalty statute. The District Court granted
appellees’ motion to dismiss on May 3, 2007. Appellants filed a timely motion for
reconsideration which the District Court denied on June 20th. On September 28, 2007,
appellants filed a notice of appeal which include a motion for relief. We remanded the
matter to the District Court to construe the motion as one to reopen the time to appeal
under Fed. R. App. P. 4(a)(6). On May 22, 2008, the District Court granted the Rule
4(a)(6) motion.
Because the District Court reopened the time to appeal, appellants’ notice of
appeal is timely, and we have jurisdiction under 28 U.S.C. § 1291. Because appellants
are proceeding in forma pauperis on this appeal, we must analyze their appeal for possible
dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B). Under § 1915(e)(2)(B), we must
dismiss an appeal if the action (i) is frivolous or malicious, (ii) fails to state a claim upon
which relief may be granted, or (iii) seeks monetary damages from a defendant with

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immunity. An action or appeal can be frivolous for either legal or factual reasons.
Neitzke v. Williams, 490 U.S. 319, 325 (1989).
We agree with the District Court that appellants cannot challenge their convictions
through a civil complaint and instead must proceed under 28 U.S.C. § 2254. See Preiser
v. Rodriguez, 411 U.S. 475 (1973). For essentially the reasons given by the District
Court, we will dismiss the appeal as legally frivolous. Appellants’ motion to expand the
record is denied.

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