Sean Donahue v. Dauphin County ( 2021 )

BLD-067 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 20-2997
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SEAN M. DONAHUE,
Appellant
v.
DAUPHIN COUNTY; DAUPHIN COUNTY PRISON; PA STATE CAPITOL POLICE;
PENNSYLVANIA DEPARTMENT OF GENERAL SERVICES; UNKNOWN
DAUPHIN COUNTY PRISON GUARDS AND ADMINISTRATION EMPLOYEES;
KATIE LYNN ADAM; RICHARD C. SHUR; LISA M. SAUDER; MARY JANE
MCMILLAN; HEATHER ROTH; ELAINE B. STALFA; DEBORAH E. CURCILLO
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 1:19-cv-00890)
District Judge: Honorable Christopher C. Conner
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or
Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
January 14, 2021
Before: AMBRO, SHWARTZ, and PORTER, Circuit Judges
(Opinion filed: March 24, 2021)
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OPINION *
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*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM
Appellant Sean Donahue, proceeding pro se and in forma pauperis, appeals an
order of the United States District Court for the Middle District of Pennsylvania
dismissing his civil rights action. We will dismiss this appeal as frivolous and malicious.
In 2016, Donahue was convicted in the Pennsylvania Court of Common Pleas for
Dauphin County for harassment, based on threatening emails he had sent to various
public employees and officials, and sentenced to two years’ probation. Despite ongoing
attempts to appeal his conviction, Donahue filed a federal civil rights action against
several defendants related to the criminal charges. The Middle District of Pennsylvania
dismissed that action as barred by the favorable-termination requirement of Heck v.
Humphrey, 512 U.S. 477, 486–87 (1994), and we summarily affirmed. See Donahue v.
Dauphin Cnty. Solics. Off., 788 F. App’x 854, 857 (3d Cir. 2019) (per curiam).
While that first civil rights action was pending in this Court, three relevant events
occurred: Donahue was denied permission to appeal his conviction to the Pennsylvania
Supreme Court, see Commonwealth v. Donahue, 180 A.3d 1211 (Pa. 2018) (table); the
U.S. Supreme Court denied his petition for certiorari in his direct criminal appeal, see
Donahue v. Pennsylvania, 138 S. Ct. 2626 (2018) (mem.); and Donahue filed his second
civil rights action against the same defendants based on the same facts, see Donahue v.
Dauphin County, No. 1:18-cv-0839, 2018 WL 3217478 (M.D. Pa. July 2, 2018). The
District Court dismissed that second action on largely the same grounds as the first, and
we affirmed. See Donahue v. County of Dauphin, 747 F. App’x 42 (3d Cir. 2019) (per
curiam).
2
Undeterred, Donahue filed this, his third civil rights action against a nearly
identical slate of defendants, based on the same events surrounding the investigation,
trial, and conviction. 1 Yet again, a Magistrate Judge recommended dismissal of his
complaint; yet again, the District Court adopted that recommendation; yet again,
Donahue timely filed a notice of appeal.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review
over a district court’s decision to dismiss a complaint as frivolous or malicious. See
Dooley v. Wetzel, 957 F.3d 366, 373–74 (3d Cir. 2020). Having granted Donahue’s
motion to proceed in forma pauperis in this Court, we must make an independent
determination under 28 U.S.C. § 1915(e)(2)(B) and must dismiss his appeal if it is
malicious, i.e., it “is an attempt to vex, injure or harass the defendant[s],” Deutsch v.
United States, 67 F.3d 1080, 1086 (3d Cir. 1995), or if it is frivolous, meaning it “lacks
an arguable basis either in law or in fact,” Neitzke v. Williams, 490 U.S. 319, 325 (1989).
The former inquiry examines the litigant’s subjective intent, but the latter is an objective
standard. See Deutsch, 67 F.3d at 1086–87.
Donahue’s appeal is subjectively malicious. The District Court based its own
conclusion that the complaint was malicious on Donahue’s litigation history, noting that
1
This is not Donahue’s only line of repetitive litigation. He has lodged other meritless
challenges to this and a separate conviction for similar conduct, see, e.g., Donahue v.
Super. Ct. of Pa., No. 19-1625, 2019 WL 4665756 (3d Cir. Sept. 5, 2019), cert. denied,
140 S. Ct. 1245 (2020), and has filed several suits against government agencies and
officials seeking the benefits he claims to have been denied, see, e.g., Donahue v. Acosta,
789 F. App’x 324 (3d Cir. 2019), cert. denied sub nom. Donahue v. Scalia, 140 S. Ct.
2660 (2020).
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this Court and our sister circuits have held that “[r]epetitious litigation of virtually
identical causes of action may be dismissed under § 1915 as frivolous or malicious.”
McWilliams v. Colorado, 121 F.3d 573, 574 (10th Cir. 1997) (internal quotation marks
and citation omitted). Yet no better evidence of his state of mind exists than his own
words—words that led to his criminal conviction and that he conveniently appended to
his complaint here. Two of the missives that a Pennsylvania jury found sufficiently
harassing to warrant criminal sanction disclose Donahue’s subjective intent in pursuing
these subsequent civil complaints. First, in an email dated November 26, 2014, Donahue
wrote to the head of the Pennsylvania Civil Service Commission (and including some of
the named defendants here as recipients) that if his demands for various veterans’
employment benefits were not met:
I will pursue punishment of you, the remaining Commission members, and
the senior employees of the Commission for your even attempting to
control access to the courts. By doing so, you will face the very same court
actions that [the Pennsylvania Department of Labor & Industry] now claims
its employees faced and fear that they still face from me. This is a threat
and I make that threat with the full confidence of Democracy and no fear
whatsoever of the federal and state courts.
Compl. App. 38–39, ECF No. 1-3. Then, in an email dated November 29, 2014, he wrote
to various recipients, including some of the named defendants in this action: “I am going
to find a LEGAL way to pound the [expletive] out of your government agencies and I’m
going to use that method, whatever it is in whatever context makes it LEGAL, to pound
your employees into submission until they stop denying me my benefits.” Id. at 47.
Donahue’s voluminous filings in state and federal court since he wrote these words
clearly demonstrate an intent to vex, injure, and harass these defendants “into
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submission.” We strongly reject Donahue’s assumption that he is entitled to use the
courts for these purposes.
Moreover, this appeal is frivolous for its total lack of arguable merit in law or fact.
Donahue has been told by this Court on two prior occasions that as part of a civil rights
action, these claims implicate the validity of his conviction, and are therefore barred by
the favorable termination requirement. See Heck, 512 U.S. at 486–87. Here, as the
District Court noted, Donahue did not even challenge the applicability of the Heck bar to
his claims; he merely seeks to overturn that decision. See Order at 2 n.1, ECF No. 11.
Similarly, on appeal, he quarrels with the holding of Heck and its progeny in our circuit,
asserting that he “must first pass through the Appellate court and must be an aggrieved
party” to ultimately challenge Heck in the Supreme Court. Resp. at 2, CA3 ECF No. 5.
Yet Donahue raised the same arguments about what he perceives to be the errors of Heck
and this Court’s line of cases thereafter in a previous meritless suit. His complaint here
“incorporates” nearly fifty pages of what appears to be a petition for certiorari “not
adjudicated by the [U.S.] Supreme Court” and intended to follow his second civil rights
action. Compl. at 5, ¶ 6, ECF No. 1 (referring to M.D. Pa. docket number 1:18-cv-
00839); see also id. at 6–54 (reproducing petition). However, Donahue has not cited any
record of his having petitioned the Supreme Court following that action, nor have we
been able to find one. His desire to raise untimely challenges to Heck and its progeny
now, after failing to seek certiorari when appropriate, is entirely insufficient to justify
proceeding with a precluded case. Donahue makes no arguments in support of his appeal
on which to base an opposite conclusion.
5
Related to his repetitious challenges to the Heck bar, the District Court also
dismissed Donahue’s complaint as frivolous based on principles of res judicata that apply
with equal force to this appeal. Res judicata bars a suit when there has been: “(1) a final
judgment on the merits in a prior suit; (2) involving the same parties or their privies; and
(3) a subsequent suit based on the same cause of action.” Elkadrawy v. Vanguard Grp.,
584 F.3d 169, 172 (3d Cir. 2009). The District Court dismissed Donahue’s second civil
rights case—in which all but one of the named defendants are identical to the instant
action—with prejudice as Heck barred (as discussed above) and time barred, and we
affirmed. See Donahue, 747 F. App’x at 43–44. A dismissal based on the running of the
statute of limitations is a final judgment on the merits for the purposes of res judicata. See
Elkadrawy, 584 F.3d at 173. Thus, all claims dismissed as time barred in the previous
action are barred here by res judicata.
We also find that Donahue’s purportedly “new” evidence is, in fact, an argument
he has already presented to this Court. In his second civil rights action, when requesting
rehearing en banc, Donahue made the same claims about his “new knowledge” of
Defendant Gregory Budman’s employment as a police officer that he makes here in
support of his right to a new cause of action. Compare Pet. for Reh’g at 4–6, Donahue v.
County of Dauphin, 747 F. App’x 42 (3d Cir. 2019) (No. 18-2568) (emphasizing the
“new knowledge that Budman is a cop”), with Compl. at 4, ECF No. 1 (claiming “a right
to a new cause of action” based on the discovery of this same defendant’s employment).
Not only have we heard these claims, but as the Magistrate Judge correctly noted,
Budman was a defendant in Donahue’s second case from the outset. See R. & R. at 10,
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ECF No. 5. Res judicata bars claims that were brought or could have been brought in a
prior suit based on the same cause of action. See Elkadrawy, 584 F.3d at 173. Thus, we
find that Donahue could have brought these claims against Budman at the time of filing
his second civil rights complaint, and did in fact present his arguments to this Court in his
prior case, and therefore the claims are barred by res judicata, rendering this appeal
frivolous.
Finally, 2 between the second action and the instant one, Donahue added Judge
Curcillo to the list of defendants. As the Magistrate Judge and District Court found, she is
protected by absolute judicial immunity from liability for her conduct during Donahue’s
trial. See Stump v. Sparkman, 435 U.S. 349, 356–57 (1978). Furthermore, Donahue’s
assertion that the judge employed “MindShark” techniques on the jury to sway them in
the prosecution’s favor is, in the words of the Magistrate Judge, “fanciful, fantastic,
delusional, irrational, and wholly incredible,” R. & R. at 11, ECF No. 5, and ultimately,
“patently frivolous,” id. at 17–18.
For all these reasons, we will dismiss his appeal as frivolous and malicious. We advise
Donahue to refrain from filing further frivolous or malicious appeals in this Court to
avoid the imposition of sanctions, such as forfeiting the privilege of proceeding without
payment of fees or other appropriate measures.
2
The District Court also found other miscellaneous grounds to dismiss Donahue’s
complaint, largely based on sovereign and individual immunities. See R. & R. at 21–22;
Order at 1. We affirmed these same grounds for dismissal in the previous action, see
Donahue, 747 F. App’x at 43–44, and thus they are incorporated into our consideration of
res judicata.
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