Nazario Burgos v. Stephen McEwen, Jr.

ALD-090 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 10-3766
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NAZARIO BURGOS,
Appellant
v.
J. STEPHEN J. McEWAN; J. WILLIAM A. CERONE; J. JOHN P. HESTER
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 10-cv-03461)
District Judge: Honorable Edmund V. Ludwig
____________________________________
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 13, 2011
Before: SCIRICA, HARDIMAN and VANASKIE, Circuit Judges
(Filed: January 25, 2010 )
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OPINION OF THE COURT
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PER CURIAM.
Nazario Burgos, an inmate at the State Correctional Institute at Graterford, appeals
from an order of the District Court sua sponte dismissing this pro se civil rights action as
legally frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B). For the following reasons, we
will summarily affirm.
In July 2010, Burgos filed a complaint pursuant to 42 U.S.C. § 1983. He named
as defendants the three Pennsylvania Superior Court judges who were on the panel that
decided his appeal from a state post-conviction relief denial. He claimed that they had
adjudicated his appeal despite lacking subject matter jurisdiction, and he argued that this
deprived him of his constitutional right to due process and his right to seek redress from
the government. He sued the defendants in their official capacities only, and he sought
declaratory relief “prohibiting further use of the judgment rendered at Docket No. 2577
EDA 1999, against plaintiff.”
The District Court concluded sua sponte that Burgos’s claim was barred by
Pennsylvania’s two-year statute of limitations. See Wilson v. Garcia, 471 U.S. 261, 276
(1985) (holding that the statute of limitations period for § 1983 claims is the same as the
state limitations period for personal injury actions); 42 Pa. C.S.A. § 5524(7). According
to the District Court, since the Superior Court rendered its decision against Burgos in
December 2000, the time had long since passed for Burgos to raise his claim. Burgos
appealed. 1
We will not address whether the District Court erred in disposing of Burgos’s
complaint sua sponte on an affirmative defense because the complaint was clearly barred
1
We have jurisdiction to hear this appeal. 42 U.S.C. § 1291. We exercise plenary
review over a sua sponte dismissal under § 1915(e)(2)(B). Allah v. Seiverling, 229 F.3d
220, 223 (3d Cir. 2000). We may summarily affirm a decision of the District Court if the
appeal does not raise a substantial issue. L.A.R. 27.4; I.O.P. 10.6. In addition, we may
affirm on any basis in the record. Fairview Twp. v. EPA, 773 F.2d 517, 524 n.15 (3d Cir.
1985).
2
by the Rooker-Feldman doctrine. As we recently explained in Great Western Mining &
Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 166 (3d Cir. 2010), Rooker-Feldman
applies when “(1) the federal plaintiff lost in state court; (2) the plaintiff complains of
injuries caused by the state-court judgments; (3) those judgments were rendered before
the federal suit was filed; and (4) the plaintiff is inviting the district court to review and
reject the state judgments.” (internal quotations and citations omitted). All four of those
factors apply here. 2
Accordingly, we conclude that this appeal presents no substantial question, and we
will affirm the judgment of the District Court.
2
See also Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (holding that when an inmate is
“challenging the very fact or duration of his physical imprisonment [. . .], his sole remedy
is a writ of habeas corpus,” not a § 1983 action). We note that Burgos has thrice
attempted to seek federal habeas relief, sometimes raising claims that are identical to the
one that he raises here. See Burgos v. Vaughn, C.A. No. 02-2878 (3d Cir. January 9,
2003); Burgos v. DiGuglielmo, C.A. No. 06-1369 (3d Cir. June 22, 2006); Burgos v.
Superior Court of Pennsylvania, 355 F. App’x 585, 586-87 (3d Cir. 2009). We further
note that we rejected the last two petitions as unauthorized second or successive petitions.
See 28 U.S.C. 2244(b)(3).
3