Chief Magistrate Judge Schwab

(Judge Mariani) () REPORT AND RECOMMENDATION

I. Introduction.

The plaintiff Chris Albert Ribaudo claims that the defendant, a police officer with the Pittston City Police Department, violated his Fourth Amendment rights in in retaliation for Ribaudo being a witness in another pending civil case involving the defendant and in retaliation for Ribaudo refusing to plead guilty. The defendant has filed a motion seeking to dismiss the complaint or, in the alternative, to stay the case until the pending criminal charges against Ribaudo are resolved in state court. For the reasons that follow, we recommend that the complaint not be dismissed, but we recommend that the case be stayed until the criminal charges against Ribaudo are resolved in state court.

II. Background and Procedural History.

Ribaudo began this action by filing a complaint naming Pittston City Police Officer Samuel Desimone as the defendant. Ribaudo claims that Desimone retaliated against him because he was a witness in Mawson v. Desimone, 3:16-CV-00400 (M.D. Pa.), where he submitted an affidavit, and because he refused to plead guilty. He also claims that Desimone violated the Fourth Amendment by entering his home and arresting him without a warrant. Ribaudo further claims that Desimone falsified a criminal complaint against him.

Ribaudo alleges that Officer Desimone and Officer Ferandez learned his address from the affidavit that he submitted in the Mawson case, and on November 22, 2016, they broke into his home. Although they found no drugs, they took Ribaudo and his fiancé Tammy Brown to the police station and held them for approximately four hours. The officers then came to Ribaudo's holding cell, and showing him a small box with bagged up drugs, said look what we found. The officers claimed that they went back to Ribaudo's apartment and found the drugs, even though they had not found any drugs during their search in Ribaudo and Brown's presence. Ribaudo requested a DNA test of the plastic bags containing the drugs, which test came back negative. Ribaudo claims that Desimone's actions were in retaliation for Ribaudo's affidavit in the Mawson case.

Ribaudo also claims that Desimone retaliated against him when Desimone and his lawyer advised a federal judge that he would be going to plea court in Luzerne County. According to Ribaudo, this was false since he did not plead guilty. After Ribaudo refused to plead guilty, Desimone then retaliated against him by trumping up new charges against Ribaudo based on the original arrest on November 22, 2016. Ribaudo alleges that Desimone used the same police affidavit, etc., and just changed the dates and time to cause Ribaudo difficulty.

According to Ribaudo, in the early morning hours of February 14, 2018, Desimone and two other officers banged on his front door, and Tammy Brown partially opened the door. When the officers said they were there for Ribaudo, Brown asked to see a warrant and said the officers could not just enter. Desimone responded that they do not need a warrant and pushed the door open forcing Brown out of the way. Ribaudo was not shown a warrant for his arrest. Ribaudo, nevertheless, said ok, let me get my shoes on. Desimone, however, said no, and Ribaudo had to walk on snow and ice without shoes from his residence to the police car. As a result, Ribaudo injured his feet.

During the ride to the Luzerne County Prison, Desimone told Ribaudo that the charges were from a year and half ago. Ribaudo responded that the drugs were not in his home, and he had been set up because he was a witness in the Mawson case. Desimone told Ribaudo that he should plead guilty to conspiracy. Ribaudo refused, and he reiterated that the drugs were not his and that he had been set up. Ribaudo was booked at the jail and released in the morning on "BAIL/R.O.R." Doc. 1 at 4.

According to Ribaudo, Desimone charged him with the same charges that were already pending so he could contact him and encourage him to plead guilty to conspiracy. Ribaudo also alleges that Desimone's confidential informant said he sold drugs, but Desimone refused to disclose the confidential informant's identity. Ribaudo views the new charges against him as Desimone's way of saying "Happy Valentines Day" to a witness in a federal lawsuit.

Ribaudo also alleges that Desimone falsified his police report by including statements that Desimone says Ribaudo and Brown made when, in fact, they did not make those statements. According to Ribaudo, Desimone is known for this type of conduct. Ribaudo also suggests that Desimone had a conflict of interest in bringing the charges given that he knew Ribaudo was a witness in the Mawson case.

In addition to attaching numerous affidavits to his complaint, Ribaudo attached to his complaint an affidavit of probable cause from the criminal complaint against Ribaudo dated January 10, 2018, and another affidavit of probable cause dated November 21, 2016.

Desimone filed a motion to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) or, in the alternative, for a more definite statement pursuant to Fed.R.Civ.P. 12(e). The motion has been briefed.

III. Discussion.

Although Desimone titled his motion as a motion to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) or, in the alternative, for a more definite statement pursuant to Fed.R.Civ.P. 12(e), in his brief in support, he does not mention Fed.R.Civ.P. 12(e) and, apart for a conclusory statement at the end of his brief that Ribaudo should be directed to file a more definite statement, he does not argue that Ribaudo should be required to file a more definite statement. Thus, we will not address whether Ribaudo should be required to file a more definite statement.

A. Motion to Dismiss Standards.

In accordance with Fed.R.Civ.P. 12(b)(6), the court may dismiss a complaint for "failure to state a claim upon which relief can be granted." When reviewing a motion to dismiss under Rule 12(b)(6), "[w]e must accept all factual allegations in the complaint as true, construe the complaint in the light favorable to the plaintiff, and ultimately determine whether plaintiff may be entitled to relief under any reasonable reading of the complaint." Mayer v. Belichick, 605 F.3d 223, 229 (3d Cir. 2010). In making that determination, we "consider only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the [plaintiff's] claims are based upon these documents." Id. at 230.

"A Rule 12(b)(6) motion tests the sufficiency of the complaint against the pleading requirements of Rule 8(a)." I.H. ex rel. D.S. v. Cumberland Valley Sch. Dist., 842 F. Supp. 2d 762, 769-70 (M.D. Pa. 2012). "Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a 'short and plain statement of the claim showing that the pleader is entitled to relief.'" Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). The statement required by Rule 8(a)(2) must give the defendant fair notice of what the plaintiff's claim is and of the grounds upon which it rests. Erickson v. Pardus, 551 U.S. 89, 93 (2007). Detailed factual allegations are not required, but more is required than labels, conclusions, and a formulaic recitation of the elements of a cause of action. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "In other words, a complaint must do more than allege the plaintiff's entitlement to relief." Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009). "A complaint has to 'show' such an entitlement with its facts." Id.

In considering whether a complaint fails to state a claim upon which relief can be granted, the court "'must accept all facts alleged in the complaint as true and construe the complaint in the light most favorable to the nonmoving party.'" Krieger v. Bank of Am., N.A., 890 F.3d 429, 437 (3d Cir. 2018) (quoting Flora v. Cty. of Luzerne, 776 F.3d 169, 175 (3d Cir. 2015)). But a court "need not credit a complaint's bald assertions or legal conclusions when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). A court also need not "assume that a . . . plaintiff can prove facts that the . . . plaintiff has not alleged." Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983).

Following Twombly and Iqbal, a well-pleaded complaint must contain more than mere legal labels and conclusions. Rather, it must recite factual allegations sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation. In practice, consideration of the legal sufficiency of a complaint entails a three-step analysis:

First, the court must "tak[e] note of the elements a plaintiff must plead to state a claim." Second, the court should identify allegations that, "because they are no more than conclusions, are not entitled to the assumption of truth." Finally, "where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief."

A complaint filed by a pro se litigant is to be liberally construed and "'however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'" Erickson, 551 U.S. at 94 (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Nevertheless, "pro se litigants still must allege sufficient facts in their complaints to support a claim." Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013).

B. The complaint should not be dismissed.

Desimone attached to his brief the following documents: (1) a three-page Police Criminal Complaint against Ribaudo dated November 22, 2016, regarding alleged criminal violations on November 21, 2016; (2) a one-page Affidavit of Probable Cause dated November 22, 2016, regarding events on November 21, 2016; (3) a four-page Police Criminal Complaint against Ribaudo dated November 22, 2016, regarding alleged criminal violations on November 22, 2016; (4) a one-page Affidavit of Probable Cause dated November 22, 2016, regarding events on November 22, 2016; (5) a unsigned, three-page Police Criminal Complaint against Ribaudo dated January 2, 2018, regarding alleged criminal violations on November 18, 2016; (6) an unsigned, two-page Affidavit of Probable Cause dated January 2, 2018, regarding events on November 18, 2016; (7) a one-page Confidential Information Form Criminal Complaint dated January 2, 2018, with Ribaudo's name on it; and (8) a twelve-page Incident Report setting forth events from November 18, 2016, November 21, 2016, November 22, 2016, and January 2, 2018, (as well as other dates) regarding Ribaudo and others. Doc. 21-1-Doc. 21-3. Desimone argues that these documents establish that there was probable cause for Ribaudo's arrest, and therefore, the complaint should be dismissed.

In addition to considering the allegations of the complaint, in connection with a 12(b)(6) motion, the court may consider "'exhibits attached to the complaint and matters of public record.'" Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014) (quoting Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.1993)). Here, Desimone contends that the documents he attached to his brief are public records, of which the court may take judicial notice and may appropriately consider at the 12(b)(6) stage.

"While some courts have taken judicial notice of police reports and criminal complaints in resolving a motion to dismiss, others have declined to do so." Rankin v. Majikes, No. 3:CV-14-699, 2014 WL 6893693, at *7 (M.D. Pa. Dec. 5, 2014) (citations omitted); see also Hadesty v. Rush Twp. Police Dep't, No. CV 3:14-2319, 2016 WL 1039063, at *4 (M.D. Pa. Mar. 15, 2016) (concluding that while a criminal complaint and police incident investigation report may be available to the public, they are not the types of public documents that the Court may consider in connection with a motion to dismiss); Morozin v. Johnson, No. CIV.A. 11-2653, 2011 WL 5837146, at *3 (E.D. Pa. Nov. 18, 2011) (refusing to consider numerous documents, including a police criminal complaint and an affidavit of probable, in connection with a motion to dismiss counterclaims). Moreover, "even if judicial notice is taken of these documents, 'a court may take notice of such documents only to establish their existence and legal effect, or to determine what statements they contained . . . not for the truth of the matters asserted.'" Rankin, 2014 WL 6893693, at *7 (quoting Fine v. ESPN, Inc., 11 F.Supp.3d 209, 223 (N.D.N.Y. 2014) (citations, internal quotation marks, and italics omitted)); see also S. Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Grp. Ltd., 181 F.3d 410, 426 (3d Cir. 1999) (concluding that "on a motion to dismiss, we may take judicial notice of another court's opinion—not for the truth of the facts recited therein, but for the existence of the opinion, which is not subject to reasonable dispute over its authenticity").

Here, defendant Desimone does not rely on the documents that he submitted with his brief merely to show their existence or their legal effect. Rather, he asks the Court to take judicial notice of the statements of facts set forth in those documents. And, without specifically showing how, Desimone suggests that the documents show that there was probable cause for Ribaudo's arrest and prosecution. But it is not proper to consider those documents for the truth of their factual assertions in connection with a Fed.R.Civ.P. 12(b)(6) motion to dismiss. This is particularly so in this case since Ribaudo alleges that Desimone lied in those documents.

The Court may also consider in connection with a Fed.R.Civ.P. 12(b)(6) motion, "exhibits attached to a defendant's motion to dismiss if it is 'an undisputedly authentic document' and 'plaintiff's claims are based on the document.'" Grp. Against Smog & Pollution, Inc. v. Shenango Inc., 810 F.3d 116, 127 (3d Cir. 2016) (quoting Pension Benefit Guar. Corp., 998 F.2d at 1196). In other words, the court may consider "document[s] integral to or explicitly relied upon in the complaint" in connection with a 12(b)(6) motion. Schmidt, 770 F.3d at 249 (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir.1997)) "We may do so because 'the primary problem raised by looking to documents outside the complaint—lack of notice to the plaintiff—is dissipated where the plaintiff has actual notice . . . and has relied upon [those] documents in framing the complaint." Levins v. Healthcare Revenue Recovery Grp. LLC, 902 F.3d 274, 280-81 (3d Cir. 2018) (quoting Schmidt, 770 F.3d at 249). "[W]hat is critical is whether the claims in the complaint are 'based' on an extrinsic document and not merely whether the extrinsic document was explicitly cited." Schmidt, 770 F.3d at 249.

Ribaudo attached to his complaint two pages from affidavits of probable cause. One of those pages is a signed copy of an unsigned page submitted by Desimone in connection with his brief. Compare Doc. 1 at 12 and Doc. 21-2 at 4. Ribaudo's contention, however, is that Desimone lied in connection with the criminal charges. Thus, it is also not appropriate to consider the documents submitted by Ribaudo for the truth of the matters asserted therein.

In opposition to Desimone's motion to dismiss, Ribaudo also submitted other documents outside the pleadings, including affidavits, other documents filed in his criminal case, photographs, and a docket sheet from his criminal case. Other than the docket sheet of one of his criminal cases, the documents submitted by Ribaudo are not the type of documents that the court can appropriately consider in connection with the Fed.R.Civ.P. 12(b)(6) motion to dismiss.

In sum, we cannot consider in connection with a Fed.R.Civ.P. 12(b)(6) motion, most of the documents submitted by the parties without converting the motion to dismiss into a motion for summary judgment. Fed.R.Civ.P. 12(d) provides that "[i]f, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56" and "[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion." Under this provision, if documents outside the pleadings are presented in connection with a 12(b)(6) motion to dismiss, the "Court has discretion to either convert the motion to dismiss into a motion for summary judgment, or to ignore the matters presented outside the pleadings and continue to treat the filing as a motion to dismiss." Yuratovich v. U.S. Dep't of Justice, No. CV 13-5651 (NLH), 2015 WL 8328328, at *3 (D.N.J. Dec. 8, 2015).

Here, we will not convert the motion to dismiss into a motion for summary judgment. Converting a motion to dismiss into a motion for summary judgment in a prisoner case generally has the effect of needlessly delaying and complicating the case because most prisoners proceed pro se and the Court must notify the pro se prisoner not only about the fact that it is converting the motion but also about the effect of such conversion. See Renchenski v. Williams, 622 F.3d 315 (3d Cir. 2010) (requiring that when a 12(b)(6) motion to dismiss is converted to a summary judgment motion in a pro se prisoner case, the prisoner must receive adequate notice of the conversion, which "includes providing a prisoner-plaintiff with a paper copy of the conversion Order, as well as a copy of Rule 56 and a short summary explaining its import that highlights the utility of a Rule [56(d)] affidavit"). Further, Desimone has not framed his arguments as summary judgment arguments. And the parties have not complied with Local Rule 56.1, and, thus, unless the parties are ordered to do so by the Court, the Court does not benefit from the sharpening of the factual disputes that is envisioned by that rule. Moreover, conversion is particularly inappropriate in this case because Ribaudo has not had the opportunity for reasonable discovery. See E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011) (stating that converting a motion to dismiss into a motion for summary judgment "is not appropriate where the parties have not had an opportunity for reasonable discovery"); Kurdyla v. Pinkerton Sec., 197 F.R.D. 128, 131 (D.N.J. 2000) ("A court should not convert a motion . . . when little or no discovery has occurred.").

Given that Desimone's motion to dismiss is based on the documents that he submitted and we will not consider those documents, we will recommend that the motion to dismiss be denied.

C. The case should be stayed pending the disposition of Ribaudo's criminal case.

DeSimone argues that this case should be stayed pending disposition of Ribaudo's criminal charges.

"Inherent in the district court's power to control the disposition of civil matters appearing on its docket is the power to stay proceedings when judicial economy or other interests so require." Barker v. Kane, 149 F. Supp. 3d 521, 525 (M.D. Pa. 2016). "A stay is an extraordinary measure, and the decision to impose a stay rests within the sound discretion of the district court." Id. In exercising that discretion to determine whether to stay a case "pending resolution of a related criminal proceeding, courts consider the following factors":

(1) the extent to which the issues in the civil and criminal cases overlap; (2) the status of the criminal proceedings, including whether any defendants have been indicted; (3) the plaintiff's interests in expeditious civil proceedings weighed against the prejudice to the plaintiff caused by the delay; (4) the burden on the defendants; (5) the interests of the court; and (6) the public interest.

Here, the factors weigh in favor of staying this action until Ribaudo's criminal case is concluded. There is likely significant overlap as to the issues in this case and the issued in Ribaudo's criminal case as Ribaudo contends that the charges against him were not warranted but were issued in retaliation for his legal actions. Ribaudo's criminal case has proceeded past the initial stages—some of the charges have been pending since 2016 and some since 2018. We note that the dockets sheets from Ribaudo's criminal cases indicate that a hearing is scheduled for June 10, 2019. Although Ribaudo objects to the request for a stay because it will delay this case, "[t]he mere fact of a less expeditious resolution is insufficient to show prejudice." Barker, 149 F. Supp. 3d at 528. And Ribaudo has not identified how he would be prejudiced by a stay. We further note that if this case were not stayed and proceeded to discovery, Ribaudo may be forced to either waive his Fifth Amendment privilege against self-incrimination or forfeit his defense on disputed issues in this case. Id. (recognizing that "proceeding with discovery will force Kane to either waive her Fifth Amendment privilege or forfeit her defense on key disputed issues in this civil suit"). As the defendant is seeking a stay, there is no basis to conclude that a stay would burden the defendant. Finally, it serves the interest of the court and the public in allowing the state court to determine in the first instance the disputed issues relating to Ribaudo's Fourth Amendment claims.

Further, "the Third Circuit . . . [has] consistently held that a § 1983 damages claim for alleged Fourth Amendment violations should be stayed where the constitutional issues are likely to be litigated in a parallel pending state criminal prosecution." Dalal v. N. Jersey Media Grp., Inc., No. CIV.A. 13-1257 WJM, 2014 WL 2691698, at *11 (D.N.J. June 13, 2014) (citing cases). The Supreme Court has also recognized that "[i]f a plaintiff files a false-arrest claim before he has been convicted (or files any other claim related to rulings that will likely be made in a pending or anticipated criminal trial), it is within the power of the district court, and in accord with common practice, to stay the civil action until the criminal case or the likelihood of a criminal case is ended." Wallace v. Kato, 549 U.S. 384, 393-94 (2007). "If the plaintiff is ultimately convicted, and if the stayed civil suit would impugn that conviction, Heck [v. Humphrey, 512 U.S. 477 (1994)] will require dismissal; otherwise, the civil action will proceed, absent some other bar to suit." Id. at 394.

We will thus recommend that this case be stayed pending the resolution of Ribaudo's criminal charges.

IV. Recommendations.

Based on the foregoing, we recommend that the Court deny defendant Desimone's motion (doc. 18) to dismiss the complaint. We recommend, however, that the Court grant defendant Desimone's request to stay this action pending resolution of Ribaudo's criminal charges.

The Parties are further placed on notice that pursuant to Local Rule 72.3:

Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.

Submitted this 5th day of April, 2019.

S/Susan E . Schwab

Susan E. Schwab

Chief United States Magistrate Judge