William Brandon Cummings, the Living Breathing Mortal the Natural Being, Sui Juris,… v. PATRICIA H. JENKINS, Judge

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DLD-250 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-2157
WILLIAM BRANDON CUMMINGS,
THE LIVING BREATHING MORTAL
THE NATURAL BEING, SUI JURIS, SOVEREIGN
v.
PATRICIA H. JENKINS, Judge;
GEORGE M. GREEN, District Attorney for Delaware County;
STEPHANIE WILLS, ADA; WILLIAM TOAL, ADA; DONALD BEESE, C.I.
William Brandon Cummings, Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 08-cv-04220)
District Judge: Honorable John P. Fullam
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
July 23, 2009
Before: BARRY, AMBRO and SMITH, Circuit Judges
(Opinion filed: August 4, 2009)
OPINION

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Cummings’s most recent petition for post-conviction relief is currently pending in the
Court of Common Pleas.
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PER CURIAM
William Brandon Cummings, a Pennsylvania state prisoner proceeding pro se,
appeals from the District Court’s dismissal of his complaint pursuant to 28 U.S.C. §
1915(e)(2)(B)(i). For the reasons set forth below, we will dismiss the appeal pursuant to
28 U.S.C. § 1915(e)(2)(B)(i).
Cummings is presently incarcerated at the State Correctional Institute at Somerset,
Pennsylvania (“SCI-Somerset”). In October 2006, a jury sitting in the Court of Common
Pleas of Delaware County convicted Cummings on charges of second degree murder,
robbery, and possession of firearms without a license. The Honorable Patricia H. Jenkins
presided over the trial. Since his conviction, Cummings has been unsuccessful in his
efforts to obtain post conviction relief.1
In September 2008, Cummings commenced a civil rights action under 42 U.S.C. §
1983 against Judge Jenkins and the Commonwealth Officials involved in investigating
and prosecuting his criminal case. In the complaint, Cummings alleged that his criminal
conviction was unconstitutional. He sought damages and injunctive relief.
On December 9, 2008, the District Court dismissed the action as frivolous pursuant
to 28 U.S.C. § 1915(e)(2)(B)(i). Cummings submitted a timely motion for
reconsideration, which the District Court denied on March 5, 2009. The present appeal

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followed.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. See Tourscher
v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999). Because Cummings is proceeding in
forma pauperis, we must review this appeal to determine whether it should be dismissed
pursuant to § 1915(e)(2)(B)(i). We dismiss an appeal if it “lacks an arguable basis either
in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Upon review of the record, we agree with the District Court that Cummings’s
claim is without merit. A plaintiff seeking damages for an unconstitutional conviction
must prove “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, 28 U.S.C. § 2254.” Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). Here,
Cummings has not demonstrated that his conviction has been invalidated, nor has he
shown that a court has issued a writ of habeas corpus. As such, the District Court
correctly concluded that his claims for damages are not cognizable.
Additionally, Cummings’s request for “an emergency injunction in the form of
release” is also without merit. As the District Court correctly noted, such a request may
only be brought in a petition for a writ of habeas corpus, and not a § 1983 action. Preiser
v. Rodriguez, 411 U.S. 475, 500 (1973); Torres v. Fauver, 292 F.3d 141, 145 (3d Cir.
2002).
Finally, we have reviewed Cummings’s motion for reconsideration and the District

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Court’s March 5, 2009 order denying it, and conclude that the District Court did not
abuse its discretion. Cummings’s motion did not present any newly discovered evidence
or legal precedent, nor did it allege “the need to correct a clear error of law or fact or to
prevent manifest injustice.” See Max’s Seafood Café v. Quinteros, 176 F.3d 669, 677 (3d
Cir. 1999).
For the foregoing reasons, we conclude that this appeal lacks any arguable legal
basis. Accordingly, we will dismiss the appeal pursuant to 28 U.S.C. § 1915(e)(2)(B)(I).

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