Andrew Bickel v. Ernest DiSantis

ALD-010 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 11-3819
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ANDREW C. BICKEL,
Appellant
v.
ERNEST DISANTIS; ELEANOR R. VALECKO;
ROBERT J. CATALDE
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civ. No. 1-10-cv-00274)
Magistrate Judge: Honorable Susan Paradise Baxter
____________________________________
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
October 12, 2012
Before: SLOVITER, VANASKIE and WEIS, Circuit Judges
(Opinion filed: October 26, 2012)
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OPINION
_________
PER CURIAM.
Andrew C. Bickel is a Pennsylvania prisoner. He filed the complaint at issue here
against Judge Ernest DiSantis and Deputy Clerk Robert J. Catalde of the Pennsylvania
Court of Common Pleas for Erie County, as well as Eleanor R. Valecko, the Deputy
Prothonotary of the Pennsylvania Superior Court. Bickel alleged that defendants
conspired to violate his constitutional rights in connection with his appeal from Judge
DiSantis’s order denying Bickel’s state-court habeas petition. In particular, Bickel took
issue with: (1) a Superior Court order issued September 16, 2010, which directed the
Superior Court Prothonotary to forward Bickel’s “application for a writ of error” to the
Court of Common Pleas to be treated as a notice of appeal from Judge DiSantis’s order;
(2) a September 22, 2010 letter from defendant Catalde requesting further direction on
how to treat the filing in light Bickel’s already pending appeal from Judge DiSantis’s
order; and (3) a Superior Court order issued October 4, 2010, vacating its previous order
of September 16 and stating that Bickel could raise all legally cognizable issues in his
already pending appeal. Bickel did not specify how he had been harmed by these events,
but he characterized the letter and orders as “fraudulent” and requested various forms of
relief, including monetary damages and immediate release from prison.
All parties consented to the Magistrate Judge’s exercise of jurisdiction under 28
U.S.C. § 636(c)(1), and the defendants filed Rule 12(b)(6) motions to dismiss on various
grounds. The Magistrate Judge granted those motions and dismissed Bickel’s complaint
by order entered September 27, 2011. The Magistrate Judge concluded that: (1)
defendant DiSantis is entitled to absolute judicial immunity because his alleged actions
were taken in his judicial capacity, see Mireles v. Waco, 502 U.S. 9, 11-12 (1991); (2)
defendant Valecko is entitled to absolute immunity because Bickel alleged only that she
acted pursuant to a facially valid court order, see Hamilton v. Leavy, 322 F.3d 776, 782-
83 (3d Cir. 2003); and (3) defendant Catalde is entitled to absolute immunity because
2
Bickel alleged only that he exercised his official duties as a court clerk, see Henig v.
Odorioso, 385 F.2d 491, 494 (3d Cir. 1967). In addition, the Magistrate Judge concluded
that Bickel had failed to state a claim for conspiracy.
Bickel appeals pro se. Because we granted him leave to proceed in forma
pauperis, we must screen this appeal pursuant to 28 U.S.C. § 1915(e)(2)(B) to determine
whether it should be dismissed as frivolous. We conclude that it should. An appeal is
frivolous when it “lacks an arguable basis in law or in fact.” Neitzke v. Williams, 490
U.S. 319, 325 (1989). Our review confirms that there is no arguable basis to challenge
the Magistrate Judge’s rulings in this case for the reasons stated by the Magistrate Judge.
In addition, Bickel has alleged no conceivable injury arising from the events of which he
complains. For these reasons, there was no need for the Magistrate Judge to provide
Bickel with leave to amend before dismissing his complaint because it is apparent that
amendment would have been futile. See Phillips v. County of Allegheny, 515 F.3d 224,
236 (3d Cir. 2008). Accordingly, we will dismiss this appeal pursuant to §
1915(e)(2)(B).1
1
The Magistrate Judge issued several other orders before dismissing Bickel’s complaint,
including an order denying his motion for a default judgment against defendant Valecko.
Bickel appealed from that ruling, but we dismissed that interlocutory appeal for lack of
jurisdiction. (C.A. No. 11-2774, Aug. 23, 2011.) Bickel’s present notice of appeal states
that he appeals only from the Magistrate Judge’s “final decision.” Even if we were to
construe that notice to include the denial of his motion for a default judgment, there is no
arguable basis to challenge that ruling because Valecko filed a timely motion to dismiss
asserting the meritorious defense discussed above. Bickel’s argument that counsel for
Valecko did not validly enter an appearance, which he has asserted in prior motions in
this Court, lacks arguable merit.
3