NOT PRECEDENTIAL

U N IT E D STATES COURT OF APPEALS

F O R THE THIRD CIRCUIT

N O . 05-4718

W I L M E R B. GAY,

Appellant

v. C IT Y OF PHILADELPHIA; ARLEN SPECTER, INDIVIDUALLY AND IN

H IS OFFICIAL CAPACITY AS DISTRICT ATTORNEY OF PHILADELPHIA

C O U N T Y AND FOR CITY OF PHILADELPHIA; THOMAS WATKINS,

A S S IS T A N T DISTRICT ATTORNEY; GAETAN J. ALFANO, HIS

P R E D E C E S O R S AND SUCCESSORS IN OFFICE; LYNNE M. ABRAHAM,

D IS T R IC T ATTORNEY; CATHERINE L. MARSHALL, ASSISTANT DISTRICT

A T T O R N E Y ; ELIZABETH J. CHAMBERS, INDIVIDUALLY AND IN THEIR

O F F IC IA L CAPACITY AS DISTRICT ATTORNEYS OF PHILADELPHIA

C O U N T Y AND FOR CITY OF PHILADELPHIA; DET. JOSEPH CLEARY,

B A D G E NO. 861; POLICE OFFICER O'BRIEN, BADGE NO. 865,

IN D I V ID U A L L Y AND IN THEIR OFFICIAL CAPACITIES AS POLICE

D E T E C T IV E S FOR CITY OF PHILADELPHIA COUNTY; GEORGE J. IVINS,

IN D IV ID U A L L Y AND IN HIS OFFICIAL CAPACITY AS TRIAL JUDGE; HIS

C O -C O N S P IR A T O R S ; JOSEPH A. MURRY, PRELIMINARY HEARING JUDGE;

C H A R L E S P. MIRARCHI, PCHA JUDGE; EDWARD J. BLAKE, PCHA JUDGE;

J O H N J. POSERINA; PCHA JUDGE, IN THEIR INDIVIDUAL AND OFFICIAL

C A P A C IT IE S AS PCRA JUDGES AND FOR CITY OF PHILADELPHIA;

Z Y G M O N T A. PINES, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS

C O U R T ADMINISTRATOR OF PENNSYLVANIA, HIS PROTHONOTARIES;

J O H N W. PERSON, FOR SUPREME COURT OF PENNSYLVANIA; DAVID A.

S Z E W C Z A K , FOR SUPERIOR COURT; JOSEPH H. EVERS, FOR COURT OF

C O M M O N PLEAS PHILADELPHIA COUNTY; ALBERTA COPELAND, CLERK

F O R PCRA UNIT COURT OF COMMON PLEAS PHILDELPHIA COUNTY,

IN D I V I D U A L L Y AND IN THEIR OFFICIAL CAPACITIES; MIKE D. FISHER,

IN D IV ID U A L L Y AND IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL

F O R COMMONWEALTH OF PENNSYLVANIA; FRANCIS R. FILIPI, HIS DEPUTY

A T T O R N E Y GENERAL; DALINDA E. CARREOR; PATRICK J. MCMONAGLE;

S U S A N J. FORENY, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES AS

D E P U T Y ATTORNEY GENERALS FOR COMMONWEALTH; JEFFERY A. BEARD,

IN D IV ID U A L L Y AND IN HIS OFFICIAL CAPACITY AS SECRETARY OF

C O R R E C T I O N S ; CHIEF D.A. SARA B. VANDENBRAAK, HIS AGENTS, CHIEF C O U N S E L FOR PDOC; THOMAS L. JAMES; CHIEF GRIEVANCE COORDINATOR F O R PDOC; KENNETH D. KYLER, SUPERINTENDENT AT SCI-HUNTINGDON; D IA N A G. BANEY, GRIEVANCE COORDINATOR; PAUL WEAVERLING, MAJOR O F GUARDS; DONALD ELLIOT, CA UNIT MANAGER; WILT, SGT., ON CA B L O C K ; CO1 INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES AT S C I-H U N T IN G D O N ; HAROLD L. RANDOLPH, TRIAL COUNSEL; ROBERT B.

M O Z E N T E R , FIRST PCHA COUNSEL; JOEL P. TRIGIANI; ROBERT P. WILLIAMS, T H IR D PCRA COUNSEL; INDIVIDUALLY AND IN THEIR OFFICIAL C A P A C I T IE S AS "STATE ACTORS" THEREWITH A B O V E NAMED MUNICIPAL OFFICERS TO DEPRIVE THEIR CLIENT OF C O N S T IT U T I O N A L L Y PROTECTED RIGHTS; JAMES GARDNER COLINS, IN D IV ID U A L L Y AND IN HIS OFFICIAL CAPACITY AS JUDGE FOR C O M M O N W E A L T H COURT; CIVIL TRIAL JUDGE WILLIAM J. MANFREDI, IN D IV I D U A L L Y AND IN HIS OFFICIAL CAPACITY AS JUDGE FOR THE CITY O F PHILADEPHIA COUNTY COURT OF COMMON PLEAS; RUSSELL M. NIGRO, IN D IV ID U A L L Y AND IN HIS OFFICIAL CAPACITY AS JUDGE FOR SUPREME C O U R T OF PENNSYLVANIA O n Appeal From the United States District Court F o r the Eastern District of Pennsylvania (D .C . Civ. No. 03-cv-05358) D istrict Judge: Honorable Norma L. Shapiro S u b m itte d Under Third Circuit LAR 34.1(a) O c to b e r 11, 2006 B e f o r e : McKEE, FUENTES, NYGAARD, Circuit Judges.

(F ile d October 26, 2006 ) O P IN IO N P E R CURIAM W ilm e r B. Gay, a prisoner, appeals pro se from the order of the United States D istric t Court for the Eastern District of Pennsylvania granting dismissal pursuant to F e d e ra l Rule of Civil Procedure 12(b)(6) of this action brought under 42U.S.C. § 1983.

T h e parties are familiar with the facts of the case, a summary of which is set forth in the District Court Opinion, and thus, we will not recount them at length here. In 1972, G a y was convicted of murder in Philadelphia County and was sentenced to life im p ris o n m e n t. In 2003, Gay filed this § 1983 Complaint, which he amended twice, a lleg in g that the judicial, prosecutorial, criminal defense and post-conviction counsel, p o lic e , and court clerk defendants involved in his 1971 arrest and subsequent prosecution v io late d his due process rights and engaged in a conspiracy to convict him, to keep him in c a r c e r a te d , and to deny him access to the court for redress of grievances. Gay also a lle g e d a separate conspiracy among the Attorney General's Office, prison officials, g rie v a n c e coordinators, and officers to deprive him of access to his legal materials with re sp e c t to a PCRA proceeding. He alleged certain retaliatory acts relating to his efforts to o v e rtu rn his conviction. He claimed that the District Attorney and her alleged a c co m p lic e s conspired to wash his socks in sodium hydroxide in retaliation for pursuing f e d era l habeas corpus relief in Gay v. Reid, Civ. A. No. 88-04433. Gay also claimed that th e defendants conspired against him with respect to his conviction and attempts to o v e rtu rn it, because of his race in violation of § 1985(2) and § 1986.

In another series of allegations, Gay asserted that in March 2001, he was tra n sf e rre d to SCI-Huntingdon in retaliation for filing a civil rights suit in Gay v. S h a n n o n , Civ. A. No. 02-04693 (E.D. Pa.). Gay also alleged that in March and August 2 0 0 2 , officials and correctional officers at SCI-Huntingdon, certain judges and court a d m in istra tiv e staff and clerks, the District Attorney, and Gay's trial counsel conspired to d e n y him access to his core legal materials. Gay averred that the City of Philadelphia was lia b le because of its custom and practice of depriving him of his constitutional rights. He g e n e ra lly alleged malfeasance by the Attorney General, the Secretary of the Department o f Corrections ("DOC") and other prison and court administrative staff. He sought dam ages.

T h e defendants moved for Rule 12(b)(6) dismissal, contending that Gay's § 1983 c la im s arising out of alleged actions occurring prior to October 2001 were barred by the a p p lic a b le two-year statute of limitations, that claims against the judicial and p ro s e c u to ria l defendants were barred by the doctrines of absolute judicial and p ro s e c u to ria l immunity, and that the remainder of the allegations in the Second Amended C o m p la in t failed to state a § 1983 claim upon which relief could be granted. Gay resp o n d ed , and upon consideration of the parties' written submissions, the District Court g r a n te d the Defendants' motions to dismiss.

T h e District Court ruled that all of the civil rights claims allegedly occurring from 1 9 7 2 through September 2001, were barred by the applicable two-year statute of lim ita tio n s . The District Court also held that Gay failed to allege any constitutional v io la tio n against the City of Philadelphia that was not barred by the two-year statute of lim ita tio n s . Next, the District Court determined that all of Gay's claims against the ju d ic ia l and prosecutorial defendants were barred by the doctrines of absolute judicial and p ro s e c u to ria l immunity because the allegations against these defendants involved actions take n within the scope of their respective jurisdictions. Gay's claims against the court a d m in is tra tiv e and clerk staff were barred because these defendants enjoyed quasi-judicial i m m u n i t y.

A s for the remainder of Gay's claims alleging conspiracy, retaliation, and denial of a c ce ss to his legal materials, the District Court ruled that Gay failed to state a claim upon w h ic h relief can be granted. As to the allegations involving the storage of his legal m a te ria ls at SCI-Huntingdon, the District Court held that Gay failed to state a denial of a c ce ss to the courts claim or a retaliation claim because the removal of excess legal m a ter ials from his cell was conducted pursuant to prison regulation reasonably related to a legitimate prison interest and Gay did not allege that he was deprived of access to the re m o v e d material. As for threats by certain corrections officers of future confiscation of G a y's legal materials, the District Court held that verbal threats, alone, do not amount to a c o n stitu tio n a l claim under § 1983. With respect to Gay's conspiracy claims, the District C o u rt determined that Gay failed to allege any fact from which one could infer an a g re e m e n t or understanding among the defendants to violate his constitutional rights under § 1983, or to discriminate against him on account of his race under § 1985(2).

Because Gay failed to state a § 1985(2) conspiracy claim, the District Court ruled that his re la te d § 1986 claims also failed.

A f te r the District Court denied Gay's motion for reconsideration, Gay filed a tim e ly notice of appeal. We have appellate jurisdiction pursuant to 28U.S.C. § 1291 and w e exercise plenary review of a Rule 12(b)(6) dismissal. See Weston v. Pennsylvania, 2 5 1 F.3d 420, 425 (3d Cir. 2001). We accept as true all factual allegations in the c o m p la in t and will affirm a dismissal under Rule 12(b)(6) only if it is certain that no relief c a n be granted under any set of facts which could be proved. Steamfitters Local Union N o . 420 Welfare Fund v. Phillip Morris Inc., et al., 171 F.3d 912, 919 (3 r d Cir. 1999).

W e will affirm for substantially the same reasons set forth in the District Court's o p in io n . We add only that, to the extent that Gay's claims arising out of his prosecution f o r murder imply the invalidity of the conviction and sentence, the claims are not c o g n iz a b le under § 1983 absent a showing that the conviction or sentence has been o v erturn ed or otherwise invalidated. See Heck v. Humphrey, 512 U.S. 477 (1994).

W e have thoroughly reviewed Gay's arguments made on appeal and find them to b e meritless.

A cc o rd in g ly, we will affirm the judgment of the District Court. Appellant's re q u e st and statement of reasons for oral argument is denied.