Richard Nightingale v. Steven Hyman, Asst. D.a. of Phila.

CLD-081 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-3413
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RICHARD NIGHTINGALE,
Appellant
v.
STEVEN HYMAN, ASST. D.A. OF PHILA.; ALTIMARI,
PHILA. POLICE DETECTIVE
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 09-cv-02959)
District Judge: Honorable Berle M. Schiller
____________________________________
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 23, 2009
Before: BARRY, FISHER and VAN ANTWERPEN, Circuit Judges
(Opinion filed February 2, 2010)
_________
OPINION
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PER CURIAM
Richard Nightingale appeals the District Court’s order dismissing his complaint as
legally frivolous. For the reasons below, we will affirm.
In his complaint, Nightingale alleged that evidence favorable to his defense in a

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state court criminal proceeding had been suppressed. As relief, he only requested the
opportunity to examine the evidence in the Commonwealth’s possession. The District
Court determined that such relief was not available via a complaint filed under 42 U.S.C.
§ 1983 and that Nightingale could request such relief in a habeas proceeding. Nightingale
filed a notice of appeal and a motion for reconsideration which the District Court denied.
We have jurisdiction under 28 U.S.C. § 1291. In District Attorney’s Office for the
Third Judicial Dist. v. Osborne, 129 S.Ct. 2308 (2009), a state prisoner brought a §1983
action claiming he had a right to subject evidence used against him to DNA testing. The
United States Supreme Court assumed without deciding that Heck v. Humphrey, 512 U.S.
477 (1994), does not bar such a claim under 42 U.S.C. § 1983. However, the Court held
that after a person has been convicted, he has a limited liberty interest in postconviction
relief.
The question is whether consideration of Osborne’s claim within the
framework of the State’s procedures for postconviction relief “offends some
principle of justice so rooted in the traditions and conscience of our people
as to be ranked as fundamental,” or “transgresses any recognized principle
of fundamental fairness in operation.” Federal courts may upset a State’s
postconviction relief procedures only if they are fundamentally inadequate
to vindicate the substantive rights provided.
Osborne, 129 S.Ct. at 2320 (citations omitted). The Court noted that it was the
defendant’s burden to demonstrate the inadequacy of the state-law procedures available to
him in state postconviction relief.
In his complaint, Nightingale did not describe the crimes for which he was
convicted or explain how the documents he alleged are being withheld are material and

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favorable to him. He did not describe any attempts he has made to use Pennsylvania post-
conviction relief procedures to obtain these documents. He has not sufficiently alleged
that the Pennsylvania state court procedures are inadequate to vindicate his rights.
Osborne, 129 S.Ct. at 2320.
Summary action is appropriate if there is no substantial question presented in the
appeal. See Third Circuit LAR 27.4. For the above reasons, we will summarily affirm
the District Court’s order. See Third Circuit I.O.P. 10.6.

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