Stoney L. Schaeffer v. HARRY E. WILSON, Facility Superintendent

BLD-272 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 07-1458
________________
STONEY L. SCHAEFFER,
Appellant
v.
HARRY E. WILSON, Facility Superintendent; TIMOTHY CROSS, State Police
Supervisor; and NANCY D. VERNON, District Attorney
____________________________________
On Appeal From the United States District Court
For the Western District of Pennsylvania
(W.D. Pa. Civ. No. 06-cv-00189)
District Judge: Honorable Arthur J. Schwab
_______________________________________
Submitted For Possible Dismissal due to a Jurisdictional Defect and Possible Dismissal
Under 28 U.S.C. § 1915(e)(2)(B)
June 21, 2007
Before: MCKEE, FUENTES AND VAN ANTWERPEN, CIRCUIT JUDGES
(Filed July 18, 2007)
_______________________
OPINION
_______________________
PER CURIAM
Stoney Schaeffer, a state prisoner proceeding pro se, appeals an order of the
United States District Court for the Western District of Pennsylvania dismissing his

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complaint against Harry Wilson, a prison superintendent, Timothy Cross, a state police
supervisor, and Nancy Vernon, a district attorney, pursuant to 28 U.S.C. § 1915(e)(2)(B).
We will dismiss Schaeffer’s appeal pursuant to 28 U.S.C. § 1915(e)(2)(B).
We must first address our jurisdiction to entertain this appeal. We have
jurisdiction of appeals from all final decisions of the district courts. 28 U.S.C. § 1291.
Schaeffer filed his notice of appeal after a Magistrate Judge recommended that the
District Court dismiss his complaint. The Magistrate Judge’s report, however, is not a
final, appealable order under § 1291. See Siers v. Morrash, 700 F.2d 113, 115 (3d Cir.
1983). The District Court then entered a final order adopting the Magistrate Judge’s
report. But Schaeffer’s appeal from the Magistrate Judge’s report did not ripen upon
entry of the final order. Perez-Priego v. Alachua County Clerk of Court, 148 F.3d 1272,
1273 (11th Cir. 1998); Serine v. Peterson, 989 F.2d 371, 372-73 (9th Cir. 1993).
Although Schaeffer did not file another notice of appeal after the District Court
entered its final order, he did file an application to proceed in forma pauperis on appeal in
this Court within thirty days of the District Court’s order. Because Schaeffer timely
demonstrated an intent to appeal, we conclude that we have jurisdiction. See Smith v.
Barry, 502 U.S. 244, 247-49 (1992) (holding an appellate brief may serve as a notice of
appeal); Fleming v. Evans, 481 F.3d 1249, 1253-54 (10 Cir. 2007) (holding court hadth
jurisdiction where the appellant filed a motion for leave to proceed on appeal without
prepayment of costs or fees, which evidenced an intent to appeal).

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On the merits, Schaeffer alleged in his complaint that a correctional officer
purposefully opened cell doors to enable three inmates to assault him, and did not respond
when he sought help via an emergency intercom. He further averred that two other
correctional officers paid the inmates to harm him and gave an order to open the cell
doors. Schaeffer claimed that Wilson, the prison superintendent, refused to handle this
incident legally with the courts; that Cross, the state police supervisor, refused to
investigate and prosecute his assailants and answer his letters; and that Vernon, the
district attorney, visited him after he wrote her, but then refused to investigate further and
prosecute his assailants.
Schaeffer’s complaint fails to state a claim upon which relief may be granted.
Absolute immunity attaches to a prosecutor’s actions performed in a “quasi-judicial” role.
Giuffre v. Bissell, 31 F.3d 1241, 1251-52 (3d Cir. 1994) (citing Imbler v. Pachtman, 424
U.S. 409, 430-31 (1976)). The decision to initiate a prosecution is at the core of a
prosecutor’s judicial role. Id. It follows that Vernon is absolutely immune from liability
arising from her decision not to prosecute the inmates and officers. And we have found
no authority creating a mandatory duty upon Wilson or Cross to investigate and pursue
the prosecution of the inmates and officers. See Inmates of Attica Correctional Facility v.
Rockefeller, 477 F.2d 375, 382 (2d Cir. 1973) (holding inmates failed to state a claim

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The Magistrate Judge also considered whether Schaeffer stated an Eighth Amendment1
claim based upon a failure by Wilson, Cross, and Vernon to protect him from the assault.
We do not read the complaint as making such a claim. Schaeffer’s complaint concerns
the lack of response to the assault. Schaeffer mentioned a failure to protect him only in
response to a question in the form complaint asking the result of his report of the assault
to prison authorities. See Complaint at 6, 9.
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against state officials for failing to investigate or prosecute civil rights violations).1
Accordingly, we will dismiss this appeal pursuant to 28 U.S.C. § 1915(e)(2)(B).

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