Edward J. Nicholas v. Scott Evans

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HLD-74 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 06-4362
________________
EDWARD J. NICHOLAS,
Appellant
v.
SCOTT EVANS; LOWELL WITMER
____________________________________
On Appeal From the United States District Court
For the Western District of Pennsylvania
(W.D. Pa. Civ. No. 06-cv-00112)
District Judge: Honorable Sean J. McLaughlin
_______________________________________
Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
March 9, 2007
BEFORE: SCIRICA, Chief Judge, WEIS and GARTH, Circuit Judges
(Filed: March 28, 2007)
_______________________
OPINION
_______________________
PER CURIAM.
Edward J. Nicholas, a state prisoner proceeding pro se, appeals an order of
the United States District Court for the Western District of Pennsylvania dismissing his
civil rights complaint. We will dismiss his appeal pursuant to 28 U.S.C. § 1915(e)(2)(B).
On May 15, 1998, following a jury trial, Nicholas was convicted of
aggravated assault and acquitted of one count of robbery and two counts of criminal

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1 Although the District Court dismissed the complaint without giving
Nicholas an opportunity to amend as required by Grayson v. Mayhew State Hosp., 293
F.3d 103 (3d Cir. 2003), we find no error because any amendment would have been
futile. See id. at 108.
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conspiracy. He was sentenced to six and one-half years to twenty years in prison. In
May 2006, Nicholas filed this civil rights action under 42 U.S.C. § 1983 against a judge
and the Court Clerk of Dauphin County. His complaint alleged that the jury found him
not guilty of the aggravated assault charge and, thus, that he is being held in violation of
due process. He requested that the court confirm his innocence and award him millions
of dollars in damages.
The Magistrate Judge recommended dismissal of the complaint pursuant to
28 U.S.C. § 1915(e)(2)(B) as barred by, among other theories, the favorable termination
rule announced in Heck v. Humphrey, 512 U.S. 477 (1994). The District Court affirmed
and adopted the Magistrate Judge’s report and recommendation. This appeal followed.
We have jurisdiction pursuant to 28 U.S.C. § 1291. Nicholas has been
granted leave to proceed in forma pauperis on appeal. Because his appeal lacks arguable
merit, we will dismiss it pursuant to § 1915(e)(2)(B)(I). 1 See Allah v. Seiverling, 229
F.3d 220, 223 (3d Cir. 2000).
According to the rule announced by the Supreme Court in Heck, when a
plaintiff brings a civil rights suit that would necessarily imply the invalidity of his
conviction or sentence, “the complaint must be dismissed unless the plaintiff can
demonstrate that the conviction or sentence has already been invalidated.” 512 U.S. at

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487. The gravamen of Nicholas’ complaint is that his conviction and sentence for
aggravated assault is invalid because it conflicts with the jury’s putative verdict of not
guilty. However, Nicholas’ conviction has not been invalidated. See Nicholas v.
Pennsylvania, No. 06-3641(3d Cir. order entered January 31, 2007) (denying a certificate
of appealability for habeas petition). Thus, the District Court was correct to dismiss the
suit.
Accordingly, we will dismiss this appeal pursuant to 28 U.S.C.
§ 1915(e)(2)(B). Nicholas’s pending motion is denied.
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