Marion Brown, Jr v. the City of Philadelphia

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DLD-228 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-1427
___________
MARION BROWN, JR.,
Appellant
v.
THE CITY OF PHILADELPHIA; DET. CHARLES KING. Individually, and in his
Official Capacity as a Police Detective for the City of Philadelphia; DET. JOE HUNT,
Individually and in his Official Capacity as a Police Detective for the City of
Philadelphia; POLICE COMMISSIONER CHARLES RAMSEY, in his Official Capacity
as Police Officers and Chief Policy Maker for the City of Philadelphia; BAIL
COMMISSIONER JAMES O'BRIEN, Individually and in his Official Capacity as the
Issuing Authority and Chief Policy Maker for the City of Philadelphia;
SUPERINTENDENT RAYMOND SOBINA, Individually and in his Official Capacity as
the Warden of the State Correctional Capacity as Warden of the State Correctional
Institution Albion; MS. PAROLE AGENT GORDON, Individually and in her Official
Capacity as a Member of Pennsylvania Board of Probation and Parole; PAROLE
SUPERVISOR DOUGLAS LOWRY, Individually and in his Official Capacity as a
Member of Pennsylvania Board of Probation and Parole; INMATE SPECIALIST
CHERYL GILL, Individually and in her Official Capacity as a Record Specialist at the
State Correctional Institution Albion
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ. No. 08-cv-04690)
District Judge: Honorable Petrese B. Tucker
____________________________________
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
June 25, 2009

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Before: Barry, Ambro and Smith, Circuit Judges
(Opinion filed: July 29, 2009)
_________
OPINION
_________
PER CURIAM
Marion Brown, Jr., appeals pro se from the District Court’s order dismissing his
complaint. For the following reasons, we will vacate and remand for further proceedings.
See 3d Cir. LAR 27.4 (2008); 3d Cir. I.O.P. 10.6.
I.
Brown was arrested at his home in Philadelphia for a parole violation on June 15,
2007. Thereafter, he was taken to one prison, transferred to another, and then ultimately
incarcerated at SCI-Albion in Erie County. Brown alleges that he was due to be released
on parole on May 5, 2008. Six days before his release, however, his institutional parole
agent told him that a detainer had been lodged against him based on a Philadelphia
County arrest warrant issued on July 7, 2007, on charges unrelated to his parole violation.
Brown continued to be detained on the basis of the Philadelphia County arrest warrant
beyond his release date. Brown alleges that someone in the institutional records office
told him that Philadelphia police would execute the warrant and transfer him to
Philadelphia “in the near future,” but that Philadelphia police never executed the warrant
and he continued to be detained. He alleges that he contacted numerous offices regarding

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his situation but was unable to obtain any resolution.
Brown finally filed suit in September 2008, alleging that the Philadelphia County
warrant was issued without probable cause and that his continued detention pursuant to
that still-unexecuted warrant was illegal. He captioned his complaint as one under 42
U.S.C. § 1983, and sought by way of relief an “order that the warrant be lifted and
plaintiff released from prison,” as well as monetary damages. He named two groups of
defendants: the City of Philadelphia, its Police Commissioner and two of its detectives
(the “Philadelphia defendants”), whom he holds responsible for issuing but failing to
execute the arrest warrant, and the warden of SCI-Albion along with various SCI-Albion
employees (the “Commonwealth defendants”), whom he holds responsible for his
continued detention.
The Philadelphia defendants filed a motion to dismiss the complaint under Rule
12(b)(6), arguing that Brown’s claims against them are barred by Heck v. Humphrey, 512
U.S. 477 (1994), because Brown had not yet successfully challenged the validity of his
underlying conviction. The Commonwealth defendants, by contrast, filed a motion for an
extension of time to answer the complaint or file an appropriate motion, explaining that
“[e]xamining the relevant record” would require additional time. On January 13, 2009,
the District Court granted their motion and extended their time to answer or move to
dismiss until February 13. On January 23, however, before the Commonwealth
defendants filed a response, the District Court entered an order granting the Philadelphia

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We have jurisdiction under 28 U.S.C. § 1291 and review the District Court’s1
dismissal under Rule 12(b)(6) de novo. See Phillips v. County of Allegheny, 515 F.3d
224, 230 (3d Cir. 2008). We review for abuse of discretion the District Court’s denial of
leave to amend, which generally is proper only where amendment would be inequitable or
futile. See Toll Bros., Inc. v. Township of Readington, 555 F.3d 131, 137, 144 n.10 (3d
Cir. 2009).
The District Court, unlike the Philadelphia defendants, recognized that Brown’s2
challenge was based on his continued detention pursuant to an unexecuted arrest warrant,
not to his underlying conviction or parole violation. Because Brown alleges that his
detention is pursuant to a warrant, his claim likely is in the nature of a claim for malicious
prosecution (rather than false arrest or false imprisonment), which must await the
termination of proceedings in his favor. See Wallace, 549 U.S. at 389-90; Heck, 512 U.S.
at 484. See also Antonelli v. Foster, 104 F.3d 899, 900-01 (7th Cir. 1997) (stating same
and holding that Heck applies, even in the absence of a conviction, to a claim implying
invalidity of detention pursuant to an arrest warrant).
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defendants’ motion to dismiss on the basis of Heck and dismissing Brown’s complaint in
its entirety with prejudice. The order also denied a motion for leave to file an amended
complaint that Brown had filed three days earlier. Brown appeals.1
II.
We conclude that the District Court erred in dismissing Brown’s complaint in four
respects. First, the District Court should not have dismissed Brown’s § 1983 claim on the
basis of Heck with prejudice. Under Heck, a plaintiff cannot recover damages if his or
her claim necessarily would imply the invalidity of a conviction or sentence that has not
already been invalidated. See Heck, 512 U.S. at 486-87. That is because a § 1983 claim
based on an allegedly unconstitutional conviction or sentence does not accrue until the
invalidation of that conviction or sentence. See id. at 484-85; Wallace v. Kato, 549 U.S.
384, 391, 393 (2007). For that reason, “[w]hen a § 1983 claim is dismissed under Heck,2

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the dismissal should be without prejudice.” See Fotter v. United States, 73 F.3d 1064,
1065-66 (10th Cir. 1996). Thus, the District Court should not have dismissed Brown’s
complaint under Heck with prejudice.
Second, the District Court also should not have dismissed that complaint without
leave to amend. Brown attached to his proposed amended complaint motions that he filed
seeking relief from various Pennsylvania courts. He also attached an order issued by the
Pennsylvania Court of Common Pleas for Erie County requiring the Department of
Corrections to transfer him to the Philadelphia Police Department for execution of the
warrant by December 8, 2008, unless it had an independent basis for his detention, failing
which “any detainer lodged as a result of the charge underlying the warrant at issue is
vacated effective that date.” (Dist. Ct. Docket No. 8, Ex. 18.) In his motion for leave to
proceed in forma pauperis in this Court, Brown asserts that the charges underlying the
arrest warrant in fact were vacated by that order. Moreover, the Department of
Corrections sent a letter regarding Brown’s filing fee to the District Court on May 19,
2009 (after Brown filed this appeal), in which it stated that Brown has been released from
prison. Accordingly, Heck may well raise no bar to Brown’s suit now, if it ever did. The
District Court did not discuss the Court of Common Pleas’ order and did not explain why
it denied Brown’s motion for leave to amend. We see no reason why that motion should
not have been granted.

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Third, the District Court erred in dismissing Brown’s complaint in the posture that
it did. Only the Philadelphia defendants had filed a motion to dismiss. The
Commonwealth defendants, by contrast, sought an extension to answer or move to
dismiss, which the District Court granted. Before the Commonwealth defendants filed
any response, however, the District Court dismissed Brown’s complaint in its entirety. As
to those defendants, then, the District Court’s dismissal was sua sponte. Sua sponte
dismissals under Rule 12(b)(6) are permissible under some circumstances but not others.
In Oatess v. Sobolevitch, 914 F.2d 428 (3d Cir. 1990), for example, we held that district
courts may not sua sponte dismiss complaints under Rule 12(b)(6) before service of
process. As we explained, in “acting without the opposing party’s input, the district court
bypasses our tradition of adversary proceedings,” and “may be perceived as having
abandoned the role of neutral arbiter” and instead “may appear to be conducting a private
litigation with the plaintiff while the defendant sits on the sidelines.” Id. at 431. We
believe the same concerns are present here. The Commonwealth defendants sought
additional time to respond to the complaint, in part because they had to “examin[e] the
relevant record,” and it is conceivable that they might have chosen to answer Brown’s
complaint instead of moving to dismiss it. Under the circumstances, the District Court
should have awaited their response.
Finally, the District Court erred in failing to address Brown’s express request for
an order directing his release from prison. Brown began the prayer for relief in his initial

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Brown did not repeat his request for release from prison in his proposed amended3
complaint, but, because the District Court denied him leave to file that complaint, the
complaint before it was his first.
Before recharacterizing a state prisoner’s filing as a habeas petition, district courts4
generally must seek the prisoner’s consent and advise him or her of the consequences of
proceeding with such a petition. See Mason v. Myers, 208 F.3d 414, 417-18 (3d Cir.
2000).
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complaint as follows: “I want the Court to order that the warrant be lifted and plaintiff
released from prison.” He also requested monetary damages. In its order dismissing the
complaint, however, the District Court wrote only that Brown “seeks monetary damages
in excess of $250,000.” The District Court acknowledged (in discussing the Heck bar to3
damages) that Brown “appears to be challenging the validity and execution of
detainment,” that such claims “are properly addressed through petitions for a writ of
habeas corpus,” and that Brown “may elect to file a writ [sic] of habeas corpus under the
appropriate statute.” As we have repeatedly explained, however, pro se filings must be
liberally construed and, where a pro se complaint requests habeas relief, a district court
generally should construe the complaint as a habeas petition. See Royce v. Hahn, 151
F.3d 116, 118 (3d Cir. 1998). Where, as here, a complaint seeks both monetary damages4
under § 1983 and habeas relief, district courts should, when appropriate, “stay the damage
action until the habeas claim has been exhausted.” Tedford v. Hepting, 990 F.2d 745, 749
(3d Cir. 1993).
In this case, the District Court did not acknowledge Brown’s request for release
from confinement and did not explain why it did not construe at least that aspect of his

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Brown’s request for habeas relief may be moot in light of the Department of5
Corrections’ representation in its May 19, 2009 letter to the District Court that Brown has
been released from prison. We leave it to the District Court to address that issue if and
when appropriate on remand.
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complaint as a habeas petition. The documents attached to Brown’s proposed amended
complaint reveal that he sought relief from his confinement on the basis of an unexecuted
arrest warrant from many Philadelphia and Commonwealth employees (and from at least
three different Pennsylvania courts), some of whom may have given him incorrect and
conflicting information. Although we of course find no facts here and express no opinion
on the merits of Brown’s claims, those documents might be read to suggest the possibility
that Brown somehow “fell through the cracks” within the Department of Corrections.
Under the circumstances, the District Court should not simply have dismissed his
complaint and forced him to incur “the wasted time and expense” of filing a separate
action before addressing his express request for habeas relief. United States v. Miller,
197 F.3d 644, 648 (3d Cir. 1999).5
Accordingly, we will vacate the District Court’s order and remand. On remand,
the District Court is directed to allow Brown to file an amended complaint, and thereafter
to conduct further proceedings consistent with this opinion.

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