Paul Bukovinsky, II v. Commonwealth of Pa

BLD-062 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-4002
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PAUL J BUKOVINSKY, II,
Appellant
v.
COMMONWEALTH OF PENNSYLVANIA
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 11-cv-00934)
District Judge: Honorable Nora Barry Fischer
____________________________________
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
December 8, 2011
Before: SCIRICA, SMITH and CHAGARES, Circuit Judges
(Filed: December 27, 2011)
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OPINION OF THE COURT
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PER CURIAM.
Appellant, Paul J. Bukovinsky, II, proceeding pro se, appeals from an order of the
United States District Court for the Western District of Pennsylvania dismissing his civil
rights action brought pursuant to 42 U.S.C. § 1983. We will summarily affirm the
judgment of the District Court. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
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Bukovinsky filed a complaint alleging violations of his constitutional rights based
on (1) adverse child custody decisions and civil contempt orders entered against him in
state court for failure to pay child support; (2) criminal charges brought against him, and
to which he pleaded nolo contendere, for impersonating his ex-girlfriend in an email
message; and (3) an incident in which he allegedly pretended to be a police officer.
Bukovinsky named the Commonwealth of Pennsylvania as the sole defendant and sought
only monetary damages. The matter was referred to a Magistrate Judge, who provided
several alternative bases for dismissing the complaint for failure to state a claim. In
particular, the Magistrate Judge concluded that that Commonwealth and any state judicial
officials that Bukovinsky sought to name were immune from suit, that the claims related
to Bukovinsky’s nolo contendere plea were barred by Heck v. Humphrey, 512 U.S. 477
(1994), and that Bukovinsky’s attempts to overturn the state court civil judgments were
precluded by the Rooker-Feldman doctrine. The District Court adopted the Magistrate
Judge’s Report and Recommendation, responded to Bukovinsky’s objections, and
dismissed the complaint with prejudice. Bukovinsky appealed.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291, and exercise
plenary review over the District Court’s dismissal. Allah v. Seiverling, 229 F.3d 220,
223 (3d Cir. 2000). We construe the complaint liberally, Haines v. Kerner, 404 U.S. 519,
520 (1972), and may affirm on any basis supported by the record. Fairview Township v.
EPA, 773 F.2d 517, 525 n.15 (3d Cir. 1985). Because we have granted Bukovinsky in
forma pauperis status pursuant to 28 U.S.C. § 1915, we must dismiss the appeal under 28
U.S.C. § 1915(e)(2)(B) if it lacks an arguable basis in fact or law. Neitzke v. Williams,
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490 U.S. 319, 325 (1989). We may summarily affirm if the appeal presents no
substantial question. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
The District Court properly dismissed Bukovinsky’s complaint. Under the
Eleventh Amendment, states are immune from suit in federal court. See, e.g., Puerto
Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993).
While a state may lose its immunity by Congressional abrogation or by waiver, Congress
has not abrogated the States’ immunity from § 1983 actions, Quern v. Jordan, 440 U.S.
332, 345 (1979), and the Pennsylvania legislature has expressly declined to waive its
sovereign immunity by statute. Lavia v. Pennsylvania Dep’t of Corrections, 224 F.3d
190, 195 (3d Cir. 2000); 42 Pa. Cons. Stat. Ann. § 8521(b). In addition, to the extent that
Bukovinsky sought to bring damage claims against state court judges because they held
him in civil contempt and ruled against him in custody proceedings, those judicial
officials are protected by the doctrine of judicial immunity. Stump v. Sparkman, 435
U.S. 349, 356-57 (1978). Nowhere does Bukovinsky allege that the judicial defendants
were acting in a non-judicial capacity or in the complete absence of jurisdiction when
they engaged in the alleged misconduct. Figueroa v. Blackburn, 208 F.3d 435, 443-44
(3d Cir. 2000).
In his objections to the Magistrate Judge’s Report and Recommendation,
Bukovinsky sought for the first time declaratory and injunctive relief. In particular,
Bukovinsky asked the District Court to declare “family law cases . . . unconstitutional,”
enter an injunction forcing the state courts to modify a child custody order, and direct a
state court judge to recuse himself from “any and all cases dealing with the plaintiff.”
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Even if these requests for relief can be considered, Marshall v. Chater, 75 F.3d 1421,
1426 (10th Cir. 1996) (stating that “[i]ssues raised for the first time in objections to the
magistrate judge’s recommendation are deemed waived.”), we agree that they do not
provide any basis for relief. Indeed, a claim for injunctive relief against the judicial
officers would be barred by the language of § 1983, and Bukovinsky has not alleged that
a declaratory decree was violated or that declaratory relief was unavailable. Azubuko v.
Royal, 443 F.3d 302, 303-04 (3d Cir. 2006) (per curiam) (noting that § 1983 provides
that “injunctive relief shall not be granted” in an action brought against “a judicial officer
for an act or omission taken in such officer's judicial capacity . . . unless a declaratory
decree was violated or declaratory relief was unavailable.”).
We also agree that the Rooker-Feldman doctrine bars Bukovinsky’s claim that he
has been harmed by state court judgments entered in the contempt and custody
proceedings. Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 284
(2005). Finally, the District Court properly rejected Bukovinsky’s attempt to challenge
the nolo contendere plea, which was based in part on police officers’ alleged falsification
of evidence.1 A plaintiff may not pursue a claim under § 1983 that calls into question the
1
Bukovinsky also alleged that a police officer, who was a friend of his ex-girlfriend,
authored a false report which indicated that Bukovinsky had posed as a police officer. It
does not appear that Bukovinsky was charged with a crime stemming from this incident.
He complained that while the “offense happened in October 2006[,] . . . the call was not
made or even put into the system until January of 2007.” We note that this allegation
appears to be incorrect. The police report, which Bukovinsky attached to his complaint,
contains a 2006 “Incident Number” and “Narrative Date.” But even assuming
Bukovinsky’s allegations are true, as we must, he has failed to demonstrate how his
constitutional rights were violated by the delayed filing of the false police report. See
Landrigan v. Warwick, 628 F.2d 736, 744 (1st Cir. 1980) (holding that the mere
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validity of his conviction unless he demonstrates that the “conviction or sentence has
been reversed on direct appeal, expunged by executive order, declared invalid by a state
tribunal authorized to make such determination, or called into question by a federal
court’s issuance of a writ of habeas corpus.” Heck, 512 U.S. at 487 . Bukovinsky
claimed that the “judge in that criminal matter pertaining to the false e-mail granted
expungement . . . .” In support of this contention, Bukovinsky submitted to the District
Court an “Expungement Order” indicating that he had successfully completed an
Accelerated Rehabilitative Disposition (“ARD”) program. We have held, however, that
successful completion of an ARD program does not constitute a “favorable termination”
for purposes of Heck. Gilles v. Davis, 427 F.3d 197, 211 (3d Cir. 2005).
For the foregoing reasons, we conclude that no substantial question is presented by
this appeal. See I.O.P. 10.6. Accordingly, we will summarily affirm the District Court’s
judgment.
existence of a false police report does not “deprive[ ] a person of a right secured by the
Constitution”).
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