LEO SCHWEITZER, III, and all of those similarly situated v. United States, et al On Appeal from the United States District Court for the Middle…

ALD-057 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-3477
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LEO SCHWEITZER, III, and all of those similarly situated,
Appellant
v.
UNITED STATES, et al
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 08-cv-02146)
District Judge: Honorable Edwin M. Kosik
____________________________________
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
November 25, 2009
Before: SLOVITER, AMBRO and SMITH, Circuit Judges
(Opinion filed December 2, 2009)
_________
OPINION
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PER CURIAM
In November 2008, Leo Schweitzer filed a sixty-four-page complaint against the
United States and countless other persons and entities. Though its contents are not
entirely clear, it appears that Schweitzer primarily sought redress for an alleged breach of

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Details of Schweitzer’s extensive criminal history are set forth in United States v.1
Schweitzer, 454 F.3d 197 (3d Cir. 2006).
2
a plea agreement related to his most recent conviction, and perhaps all of his prior
criminal convictions as well. Schweitzer alleged violations of his “First, Fourth, Fifth,1
Sixth, Eight[h], Ninth, Tenth, Thirteen, and Fourteenth Amendment[]” rights, as well as
violations of the Federal Tort Claims Act (“FTCA”). The District Court dismissed the
complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim for which
relief may be granted. Schweitzer appealed.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and our review is plenary. See
Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). Having granted Schweitzer leave
to proceed in forma pauperis, we must dismiss his appeal pursuant to 28 U.S.C. §
1915(e)(2)(B) if it is frivolous, i.e., if it has no arguable basis in law. See Neitzke v.
Williams, 490 U.S. 319, 325 (1989).
At the outset, we note our disagreement with the District Court’s determination
that Schweitzer’s claims are barred by the FTCA’s applicable statute of limitations. The
claimant is required by the FTCA to file an administrative tort suit within two years of the
claim’s accrual. See 28 U.S.C. § 2401(b). Here, Schweitzer apparently filed an
administrative tort suit on April 24, 2006. (Dist. Ct. Op. at 8.) Schweitzer’s claims could
have accrued in late 2004, the last year in which he complains that government
misconduct occurred concerning the alleged breach of a plea agreement. (Dist. Ct. Op. at

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Indeed, many of the claims made in Schweitzer’s complaint are duplicative of claims2
previously rejected by this Court.
3
3-4) (“Plaintiff sets forth a plethora of alleged violations which appear to have occurred
over a time period spanning from 1984 through 2004). Thus we cannot say for sure
whether Schweitzer’s claims, if they were in fact proper claims under the FTCA, were
timely. We will not remand for further development of the record, however, because we
dispose of this appeal on other grounds. Cf. Nicini v. Morra, 212 F. 3d 798, 805 (3d Cir.
2000) (en banc).
Schweitzer’s claims are, in effect, collateral attacks on his convictions. As the
District Court observed, Schweitzer’s claims are premised on the alleged breach of a plea
agreement, his alleged actual innocence of any criminal wrongdoing, and the alleged
unreasonableness of his sentence for the crimes of conviction. Such attacks must be
brought via habeas corpus. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). We
note, moreover, that Schweitzer has already unsuccessfully attempted to end or shorten
his term of imprisonment through various means over the years, including 28 U.S.C. §
2255, 28 U.S.C. § 2241, Federal Rule of Civil Procedure 60(b), and a petition for a writ
of coram nobis. It appears, then, that this complaint is just his latest attempt at2
circumventing AEDPA’s stringent gatekeeping requirements for second or successive §
2255 motions. As a result, it would have been pointless for the District Court to construe
the complaint as a § 2255 motion because the District Court would have lacked

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Our decision to dismiss the appeal pursuant to § 1915(e)(2)(B) has significant3
consequences, because it will mean that Schweitzer has had at least three actions or
appeals dismissed under that provision during his incarceration. See also Schweitzer v.
United States, 215 F. App’x 120 (3d Cir. Jan. 31, 2007); Schweitzer v. United States, No.
08-cv-02146, dkt #26 (M.D. Pa. Aug. 7, 2009); Schweitzer v. All Territories & Insular
Possessions, No. 06-cv-0965, dkt #34 (M.D. Pa. Apr. 26, 2007). Thus, while imprisoned,
Schweitzer will from now on be prohibited from bringing civil suits unless he either pays
the fees in full up-front or makes a showing that he is “under imminent danger of serious
physical injury.” 28 U.S.C. § 1915(g).
4
jurisdiction to entertain it without our having authorized its filing. See 28 U.S.C. § 2244.
Accordingly, because this appeal presents no arguable legal issue, we will dismiss
it pursuant to 28 U.S.C. § 1915(e)(2)(B).3

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