Opinion
2:19-CV-01046-CRE
08-16-2021
CHRISTOPHER BATCH, Plaintiff, v. JOSEPH LAURICIA, CHRISTIANN FLANIGAN, CHRISTOPHER FELICIANI, JOHN PETRUSH, JAMES LAZAR, JASON MORGAN, PETE CARWELLO, Defendants,
REPORT AND RECOMMENDATION
Cynthia Reed Eddy Chief United States Magistrate Judge
I. RECOMMENDATION
This civil action was initiated by pro se Plaintiff Christopher Batch against several assistant district attorneys from Westmoreland County, Pennsylvania (Defendants James Lazar, John Petrush and Pete Carwello collectively “Westmoreland County ADAs”); Judge Christopher Feliciani of the Court of Common Pleas of Westmoreland County, Pennsylvania and Magisterial District Judge Christiann Flanigan of Westmoreland County, Pennsylvania (collectively “Judicial Defendants”); and two Pennsylvania State Police Troopers, Joseph Lauricia and Jason Morgan (collectively “PSP Troopers”) alleging several civil rights violations under 42 U.S.C. § 1983 in connection with a traffic stop, arrest and criminal charges brought against him.
Before the court for consideration are:
1. A motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) by the Westmoreland County ADAs (ECF No. 55);
2. A motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) by Judge Feliciani, and Magisterial District
Judge Flanigan (ECF No. 59); and
3. A motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) by the PSP Troopers (ECF No. 61).
The court has subject matter jurisdiction under 28 U.S.C. § 1331 and supplemental jurisdiction of Plaintiff's state law claims under 28 U.S.C. § 1367. For the reasons below, it is respectfully recommended that:
1. Westmoreland County ADAs motion to dismiss be granted in its entirety and Plaintiff's claims against the Westmoreland County ADAs be dismissed with prejudice;
2. Judicial Defendants' motion to dismiss be granted in its entirety and Plaintiff's claims against the Judicial Defendants be dismissed with prejudice; and
3. PSP Troopers motion to dismiss be granted in part and denied in part. It is respectfully recommended that PSP Troopers' motion be granted related to Plaintiff's Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendment claims, Plaintiff's claims for conspiracy under the Fourth Amendment for false arrest and malicious prosecution, and Plaintiff's constitutional defamation claim which should be dismissed with prejudice and denied related to Plaintiff's claim for First Amendment retaliation, claim for conspiracy under the First Amendment, and claims for common law defamation, intentional infliction of emotional distress and abuse of process.
II.REPORT
a. Background
Plaintiff alleges on May 9, 2018 he was driving through the City of Greensburg and stopped his vehicle at a stoplight when he noticed a driver in a blue sedan letting go of the brakes and hitting the accelerator of the vehicle trying to get Plaintiff's attention. When the stoplight turned green, the sedan began to follow Plaintiff with its high beams on. Plaintiff sped away in fear of his life and parked in a residential area where he felt safe. He was trying to exit his vehicle when the blue sedan that had been following him placed its police lights on. Trooper Lauricia approached Plaintiff's vehicle and identified himself as a state trooper and flashed his badge and a gun, but Plaintiff alleges that he was not dressed in normal police attire. Trooper Lauricia asked Plaintiff if he owned the car he was driving and told Plaintiff that he did not fit the description of the vehicle owner. Plaintiff informed Trooper Lauricia that he was the owner of the car, gave Trooper Lauricia “paperwork” and Trooper Lauricia went back to his vehicle to run Plaintiff's plates. Trooper Lauricia returned to Plaintiff's vehicle and asked him again who owned the vehicle and Plaintiff stated he owned the vehicle. Trooper Lauricia stated to Plaintiff that the car was not his, asked Plaintiff to step out of the vehicle and placed Plaintiff in handcuffs. Trooper Lauricia then stated that Plaintiff and the vehicle smelled like marijuana and Plaintiff stated he did not have any marijuana on him or in the vehicle. Trooper Lauricia then searched Plaintiff's person and pulled out $20 from Plaintiff's pockets but no marijuana.
Other state troopers arrived and Trooper Lauricia and another unknown trooper searched Plaintiff's car without his consent. The unknown trooper used Plaintiff's keys to unlock Plaintiff's glove compartment. Plaintiff alleges that Trooper Lauricia stated to him that he could either help himself or that his charges would get worse and asked if Plaintiff could get ten or more bricks of heroin. Plaintiff told Trooper Lauricia that he did not know how to get heroin. Plaintiff was then taken to the PSP station and Trooper Lauricia continued to ask Plaintiff to participate in a sting operation by finding someone to sell him heroin and also stated to him that he should help himself or things would get worse. Plaintiff claims that Trooper Morgan was also present and engaged in the same behavior as Trooper Lauricia. Plaintiff alleges that after this, Trooper Morgan fabricated statements made by Plaintiff and included the statements in an affidavit for probable cause in another criminal case to bolster criminal charges against a third party.
Plaintiff was arrested and charged with several drug offenses, several illegal firearms offenses, a receiving stolen property offense and a failure to signal offense. Plaintiff was then arraigned by Magisterial District Judge Flanigan and his bail was set at $400,000. Plaintiff asked why the bail was set so high for a non-violent offense and Magisterial District Judge Flanigan responded “You want me to make it higher?” and told Plaintiff to get out of her face.
Plaintiff claims that he had $600 in his vehicle and when he received an inventory slip for the car, it stated that he had $274. He also claims that his vehicle was damaged.
On February 15, 2019, Judge Feliciani held a suppression hearing on Plaintiff's criminal charges. Plaintiff claims at the hearing, Trooper Lauricia stated he was off duty when he pulled Plaintiff over and admitted that Plaintiff did not commit any crimes. Judge Feliciani found that Plaintiff faced an invalid investigatory detention and suppressed the evidence found in his car during the search. While the evidence was suppressed, Judge Feliciani kept Plaintiff detained on a $400,000 bond. Plaintiff claims that his lawyer tried to have Plaintiff released from custody but Judge Feliciani denied this request because he wanted to see what ADA Petrush wanted to do with the criminal charges.
On July 31, 2019, Plaintiff had a hearing to modify his bond in which ADA Lazar opposed and ultimately Judge Feliciani denied his request to modify bond.
On October 22, 2019, Plaintiff claims that ADA Carwello retaliated against Plaintiff by arguing to the court that Plaintiff's bail should not be lowered because he filed a civil suit against ADA Petrush. Plaintiff claims that Judge Feliciani lowered Plaintiff's bail to $75,000 and Plaintiff claims he spent a year and a half in jail for unsupported criminal charges with no evidentiary basis. Plaintiff was released from custody at some later point.
While the undersigned has sought to locate Plaintiff's criminal docket sheet to obtain more background information, upon search of the Unified Judicial System of Pennsylvania Web Portal including the docket number provided by defense counsel (CP-65-CR-2188-2018) and a general search of Plaintiff's name, the records related to this docket number were not located. Plaintiff attached to his original complaint a copy of this docket sheet last accessed on August 3, 2019 and Judge Feliciani's suppression decision and certain background information was gleaned from Plaintiff's submissions. Compl. Ex. A (ECF No. 4-1 at 1-10).
Plaintiff started this civil action alleging several civil rights violations under Section 1983 and state law tort claims. Plaintiff asserts his claims in a generalized manner, failing to set forth an exact cause of action against each particular Defendant and instead unloads myriad claims in conclusory fashion at the end of his complaint, some of which state no recognized civil claim. In total, Plaintiff states Section 1983 claims for: “malicious arrest, false imprisonment, emotional distress, defamation, anguish, distress, destructibility, theft, malice, reverse discrimination, negligence, pain [and] suffering, malicious prosecution, abuse of process, civil conspiracy, process rights, substantive rights, 1st[, ] 4th[, ] 5th[, ] 6th[, ] 8th[, ] and 14th amendments[, ] intentional infliction of emotional distress under color of law.” Am. Compl. (ECF No. 24 at 3). He seeks monetary relief against all Defendants and injunctive relief against Judicial Defendants. Id. at 14. All Defendants seek to dismiss each of Plaintiff's claims.
b. Standard of Review
A pro se pleading is held to a less stringent standard than more formal pleadings drafted by lawyers. Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). As a result, a pro se complaint under § 1983 must be construed liberally, Hunterson v. DiSabato, 308 F.3d 236, 243 (3d Cir. 2002), so “as to do substantial justice.” Alston v. Parker, 363 F.3d 229, 234 (3d Cir. 2004) (citations omitted). While pro se litigants are afforded this leniency, they “do not have a right to general legal advice from judges, ” and “courts need not provide substantive legal advice to pro se litigants” because pro se litigants must be treated “the same as any other litigant.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245, 58 V.I. 691 (3d Cir. 2013).
The applicable inquiry under Federal Rule of Civil Procedure 12(b)(6) is well settled. Under Federal Rule of Civil Procedure 8, a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Rule 12(b)(6) provides that a complaint may be dismissed for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A complaint that merely alleges entitlement to relief, without alleging facts that show entitlement, must be dismissed. See Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009). This “‘does not impose a probability requirement at the pleading stage,' but instead ‘simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of' the necessary elements.” Phillips v. Cty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Bell Atlantic Corp., 550 U.S. at 556). Yet the court need not accept as true “unsupported conclusions and unwarranted inferences, ” Doug Grant, Inc. v. Greate Bay Casino Corp., 232 F.3d 173, 183-84 (3d Cir. 2000), or the plaintiff's “bald assertions” or “legal conclusions.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997).
Although a complaint does not need detailed factual allegations to survive a Rule 12(b)(6) motion, a complaint must provide more than labels and conclusions. Bell Atlantic Corp., 550 U.S. at 555. A “formulaic recitation of the elements of a cause of action will not do.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). “Factual allegations must be enough to raise a right to relief above the speculative level” and “sufficient to state a claim for relief that is plausible on its face.” Bell Atlantic Corp., 550 U.S. at 555. Facial plausibility exists “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft, 556 U.S. at 678 (citing Bell Atlantic Corp., 550 U.S. at 556).
The plausibility standard is not akin to a “probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully. . . . Where a complaint pleads facts that are “merely consistent with” a defendant's liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.'” Id. (quoting Bell Atlantic Corp., 550 U.S. at 556) (internal citations omitted).
When considering a Rule 12(b)(6) motion, the court's role is limited to determining whether a plaintiff has a right to offer evidence in support of his claims. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). The court does not consider whether a plaintiff will ultimately prevail. Id. A defendant bears the burden of establishing that a plaintiff's complaint fails to state a claim. Gould Elecs. Inc. v. United States, 220 F.3d 169, 178 (3d Cir. 2000).
As a general rule, if a court “consider[s] matters extraneous to the pleadings” on a motion for judgment on the pleadings, the motion must be converted into one for summary judgment. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997). Even so, a court may consider (1) exhibits attached to the complaint, (2) matters of public record, and (3) all documents integral to or explicitly relied on in the complaint, even if they are not attached, without converting the motion into one for summary judgment. Mele v. Fed. Rsrv. Bank of New York, 359 F.3d 251, 256 (3d Cir. 2004) n. 5 (3d Cir. 2004); Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).
c. Discussion
Each Defendant moves to dismiss Plaintiff's claims and each motion will be separately addressed.
i. Westmoreland County ADA Defendants and Absolute Immunity (ECF No. 55)
The Westmoreland County ADAs argue that they are entitled to absolute immunity because the conduct that Plaintiff complains of involves prosecutors acting within the scope of their official duties in initiating and pursuing a criminal prosecution.
Plaintiff responds that he agrees to dismiss Defendant Lazar, and it is thus respectfully recommended that the claims against Defendant Lazar be dismissed with prejudice.
As to the remaining Westmoreland County ADA Defendants, Plaintiff responds they should not be dismissed because they continued to proceed with Plaintiff's criminal charges even though they lacked probable cause to do so in retaliation for Plaintiff filing a civil suit against them.
Prosecutors sued under Section 1983 are entitled to absolute immunity for conduct “intimately associated with the judicial phase of the criminal process.” Burns v. Reed, 500 U.S. 478, 486, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991). (citations omitted). Prosecutors are not entitled to absolute immunity for all of their actions “merely because they are performed by a prosecutor[, ]” Buckley v. Fitzsimmons, 509 U.S. 259, 273, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993), and instead, “courts must ‘focus upon the functional nature of the activities rather than [the prosecutor's] status' to determine whether absolute immunity is warranted.” Fogle v. Sokol, 957 F.3d 148, 159 (3d Cir. 2020) (quoting Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976))). For example, courts have held that the following conduct is “intimately associated” with the judicial phase of the criminal process and entitle prosecutors to absolute immunity: beginning a prosecution, including “soliciting false testimony from witnesses in grand jury proceedings and probable cause hearings, ” Kulwicki v. Dawson, 969 F.2d 1454, 1465 (3d Cir. 1992), presenting the state's criminal case at trial, Imbler, 424 U.S. at 431, appearing before a judge to present evidence, Burns, 500 U.S. at 491-92, and engaging in any conduct “directly connected with the conduct of a trial” that “requires legal knowledge and the exercise of related discretion.” Van de Kamp v. Goldstein, 555 U.S. 335, 344, 129 S.Ct. 855, 172 L.Ed.2d 706 (2009). Nevertheless, “investigatory functions that do not relate to an advocate's preparation for the initiation of a prosecution or for judicial proceedings are not entitled to absolute immunity.” Buckley, 509 U.S. at 273. In other words, a prosecutor will not be entitled to absolute immunity where the complained-of conduct is investigatory in nature. Fogle, 957 F.3d at 160.
“Determining the precise function that a prosecutor is performing is a fact-specific analysis.” Id. This analysis has two overlapping steps: first, the court must “ascertain . . . what conduct forms the basis for the plaintiff's cause of action[, ]” and second, “determine what function (prosecutorial, administrative, investigative, or something else entirely) that act served, ” and whether absolute immunity is justified. Schneyder v. Smith, 653 F.3d 313, 332 (3d Cir. 2011). When a defendant asserts an absolute immunity defense at the motion to dismiss stage, “to earn the protections of absolute immunity, a defendant must show that the conduct triggering absolute immunity “clearly appear[s] on the face of the complaint.” Fogle, 957 F.3d at 161 (quoting Wilson v. Rackmill, 878 F.2d 772, 776 (3d Cir. 1989)).
According to Plaintiff's complaint, he alleges that the Westmoreland County ADA Defendants represented the Commonwealth of Pennsylvania during court proceedings related to Plaintiff's criminal charges, including an initial bond hearing, a hearing on Plaintiff's motion to suppress evidence, an appeal of Judge Feliciani's decision to suppress evidence in Plaintiff's criminal case and a bond modification hearing. He complains that the Westmoreland County ADA Defendants continued to pursue criminal charges against him during an appeal of Judge Feliciani's decision even though they lacked probable cause. The conduct that Plaintiff complains of simply describe “actions within [the Westmoreland County ADA Defendants'] duties as advocates during the judicial process.” Fogle, 957 F.3d at 164 (prosecutors entitled to absolute immunity for allegations that they filed a criminal complaint without probable cause). Deciding to pursue criminal charges, appealing an unfavorable judicial ruling, and opposing a bond modification describes conduct intimately associated with the judicial phase of the criminal process in which the Westmoreland County ADA Defendants advocated for the Commonwealth of Pennsylvania.
It is thus respectfully recommended that Westmoreland County ADA Defendants' motion to dismiss be granted in its entirety as they are entitled to absolute immunity and Plaintiff's claims be dismissed with prejudice as amendment would be futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).
ii. Judicial Defendants and Judicial Immunity (ECF No. 59)
The Judicial Defendants are sued in their official and individual capacities. They argue that Plaintiff's official capacity claims fail because they are entitled to immunity under the Eleventh Amendment to the United States Constitution and because a suit against a court does not constitute a suit against a “person” for Section 1983 purposes. The Judicial Defendants also argue that they are entitled to absolute immunity for Plaintiff's individual capacity claims because the conduct Plaintiff complains of was carried out within the scope of their judicial duties. Plaintiff did not respond to Judicial Defendants' motion to dismiss and therefore the recommendation will be made without the benefit of Plaintiff's response.
As to Judicial Defendants' argument that they are entitled to immunity under the Eleventh Amendment for Plaintiff's official capacity claims, they are correct. The Eleventh Amendment provides that federal courts have no power to hear suits against non-consenting states, thus making states immune from suit in federal courts. Lombardo v. Pennsylvania, Dep't of Pub. Welfare, 540 F.3d 190, 194 (3d Cir. 2008) (citing Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890)). By extension, “[i]ndividual state employees sued in their official capacity are . . . entitled to Eleventh Amendment immunity because ‘official-capacity suits generally represent only another way of pleading an action' against the state.” Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 253-54 (3d Cir. 2010) (quoting Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991)). A suit against a judge in their official capacity is in actuality one against the state because “the real party in interest in an official capacity suit is not the individual but rather the entity of which the officer is an agent.” Jones v. Lilly, 37 F.3d 964, 966 (3d Cir. 1994). “Eleventh Amendment immunity extends to the Pennsylvania state courts because they are entities of the [Commonwealth] of Pennsylvania.” Andrews v. Hens-Greco, 641 Fed.Appx. 176, 180 (3d Cir. 2016) (citing Benn v. First Jud. Dist. of Pa., 426 F.3d 233, 238-41 (3d Cir. 2005)). As a result, Eleventh Amendment immunity applies to bar Plaintiff's official capacity claims for damages against Judicial Defendants and it is respectfully recommended that their motion to dismiss on this ground be granted and Plaintiff's claims made against Judicial Defendants in their official capacity be dismissed with prejudice, as amendment would be futile. Grayson, 293 F.3d at 108.
As to Judicial Defendants' second argument that they are immune from Plaintiff's claims made against them in their individual capacity, they are also correct. “A judicial officer in the performance of his duties has absolute immunity from suit and will not be liable for his judicial acts.” Azubuko v. Royal, 443 F.3d 302, 303 (3d Cir. 2006) (citing Mireles v. Waco, 502 U.S. 9, 12, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991)). “A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the ‘clear absence of all jurisdiction.” Stump v. Sparkman, 435 U.S. 349, 356-57, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978) (internal quotation mark and citations omitted). See also Fox v. Lee, 99 F.Supp.2d 573 (E.D. Pa. 2000) (applying doctrine of judicial immunity to district justice/magistrate).
All the allegations in Plaintiff's complaint relate to conduct taken by the Judicial Defendants in their capacity as judicial officers. He complains that Magisterial District Judge Flanigan set his bond too high and told him to “get out of his face” when he complained about it. He complains that Judge Feliciani kept him detained even after suppressing the evidence in his criminal case and did not revoke his bond. Determining whether to detain an individual pending criminal trial and the decisions to set or revoke bail and the amount of bail in a specific case are purely judicial acts and Judicial Defendants are entitled to immunity no matter if their actions were taken in error, done maliciously or in excess of jurisdiction. Rojas v. City of New Brunswick, No. CIV. 04-3195 (WHW), 2008 WL 2355535, at *18 (D.N.J. June 4, 2008) (“a judge setting bail during a bail hearing is entitled to judicial immunity even if the bail amount exceeds statutory limits.”); Johnson v. Bengel, No. CIV A 06-1284, 2006 WL 3843557, at *5 (W.D. Pa. Dec. 14, 2006) (judicial acts related to bond entitled to judicial immunity); Tucker v. Outwater, 118 F.3d 930, 933 (2d Cir. 1997) (judge's “arraignment of plaintiff and setting of bail were plainly judicial acts.”). For these reasons, it is respectfully recommended that Judicial Defendants' motion to dismiss be granted in this respect and Plaintiff's claims be dismissed with prejudice as amendment would be futile. Grayson, 293 F.3d at 108.
To the extent that Plaintiff seeks injunctive relief against Judicial Defendants to “release and restore plaintiff's life and liberty . . . [, ] release the accused people back to there (sic) state of freedom if there is no evidence to take a defendant to trail(sic)[, ] . . [and] to stop giving out excessive bails” Am. Compl. (ECF No. 24 at 5), such relief should also be dismissed with prejudice because Plaintiff does not address actions taken by Judicial Defendants other than those taken in their judicial capacity. Azubuko, 443 F.3d at 304 (“[I]njunctive relief shall not be granted” in an action brought against “a judicial officer for an act or omission taken in such officer's judicial capacity . . . unless a declaratory decree was violated or declaratory relief was unavailable.”).
iii. PSP Troopers
Because Plaintiff's complaint contains several unrecognized legal claims, the court will construe Plaintiff's complaint to do substantial justice and will construe Plaintiff's complaint as setting forth the following claims against the PSP Troopers:
(1) First Amendment retaliation under 42 U.S.C § 1983;
(2) Fourth Amendment false arrest under 42 U.S.C. § 1983;
(3) Fourth Amendment malicious prosecution under 42 U.S.C. § 1983;
(2) Sixth Amendment speedy trial violation under 42 U.S.C. § 1983;
(3) Fifth Amendment violation under 42 U.S.C. § 1983;
(4) Eighth Amendment cruel and unusual punishment under 42 U.S.C. § 1983;
(5) Ninth Amendment violation under 42 U.S.C. § 1983;
(6) Fourteenth Amendment due process under 42 U.S.C. § 1983;
(7) conspiracy under 42 U.S.C. § 1983;
(8) common law defamation;
(9) common law intentional infliction of emotional distress; and
(10) common law abuse of process.
At the outset, PSP Troopers do not seek dismissal of Plaintiff's Fourth Amendment claims for false arrest and malicious prosecution, or for Plaintiff's common law claims of defamation, intentional infliction of emotional distress, or abuse of process. Each remaining claim is addressed.
The undersigned questions whether Plaintiff has adequately stated a claim for false arrest and malicious prosecution under the Fourth Amendment by adequately alleging a lack of probable cause for his arrest and prosecution, as “[t]he Supreme Court has made clear in many cases that the exclusionary rule is not a personal constitutional right of the party aggrieved[, ]” Hector v. Watt, 235 F.3d 154, 158-59 (3d Cir. 2000), and the fruit of the poisonous tree doctrine does not apply in Section 1983 cases. Townes v. City of New York, 176 F.3d 138, 148 (2d Cir. 1999). But because PSP Troopers did not move for dismissal on these grounds, no recommendation as to this point will be made.
1. First Amendment retaliation
PSP Troopers argue that Plaintiff has not set forth specific facts showing his personal involvement in Plaintiff's First Amendment retaliation claim and that Plaintiff has failed to set forth what statements Trooper Morgan allegedly fabricated and attributed to Plaintiff to bolster an affidavit of probable cause in another criminal matter and failed to attach the fabricated affidavit to his complaint and therefore his claim should be dismissed.
As to PSP Trooper's first argument, to establish personal liability against a defendant in a Section 1983 action, the defendant must have personal involvement in the alleged wrongs. That is, the state actor must have played an affirmative part in the alleged misconduct to be subject to liability. Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976); Chavarriaga v. New Jersey Dep't of Corr., 806 F.3d 210, 222 (3d Cir. 2015); Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Plaintiff alleges Trooper Lauricia asked him to participate in a sting operation to sell heroin and if he did not comply it would “get worse” for him and that Trooper Morgan was present during this conversation and was “telling [Plaintiff] the same thing [Trooper Lauricia] was telling [him.]” Am. Compl. (ECF No. 24 at 26-30). Plaintiff also alleges that after he refused to participate in a sting operation to buy heroin, Trooper Morgan “stated in an affidavit in another case that [Plaintiff] made all these allegations about an individual basic[ally] to strengthen his case and stated that all allegations were recorded.” Id. at 32. These allegations are enough to show personal involvement in Plaintiff's First Amendment retaliation claim as they depict affirmative conduct by both PSP Troopers.
As to PSP Troopers' second argument, at this stage of the litigation, Plaintiff is not required support his allegations with concrete evidence as PSP Troopers argue. “Under the Federal Rules of Civil Procedure, an evidentiary standard is not a proper measure of whether a complaint fails to state a claim.” Fowler, 578 F.3d at 213 (citation omitted). Dismissing Plaintiff's claim for First Amendment retaliation on evidentiary grounds at this point is improper.
While PSP Troopers are correct that Plaintiff offers little insight into what fabricated statements were allegedly made, taking the allegations set forth in Plaintiff's complaint as true, he has stated a claim for First Amendment retaliation. He alleges that because he refused to assist the PSP Troopers to set up a sting to buy heroin or otherwise cooperate with the PSP Troopers after his arrest, the PSP Troopers retaliated against him by fabricating statements, attributing them to Plaintiff and using the fabricated statements in another criminal case, which placed Plaintiff at risk of being retaliated against for the fabricated statements. At this stage of litigation, despite the PSP Troopers' argument, Plaintiff need not bolster his allegations with specific evidence of his claims and though his complaint “is not as rich with detail as some might prefer, it need only set forth sufficient facts to support plausible claims[, ]” which he has accomplished. Fowler, 578 F.3d at 211-12.
PSP Troopers do not argue that Plaintiff's First Amendment retaliation claim is legally insufficient, because for example, he did not engage in constitutionally protected activity by refusing to participate in a sting operation, and therefore no recommendation will be made on that point. See Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003) (to plead a retaliation claim under the First Amendment, a plaintiff must allege: (1) constitutionally protected conduct, (2) retaliatory action sufficient to deter a person of ordinary firmness from exercising his constitutional rights, and (3) a causal link between the constitutionally protected conduct and the retaliatory action); Cooper v. Beard, No. CIV.A. 06-0171, 2006 WL 3208783, at *11 (E.D. Pa. Nov. 2, 2006) (inmate engaged in constitutionally protected activity by refusing to participate in a sting operation under the First Amendment); but see Abreu v. Ferguson, No. 1:19-CV-20, 2020 WL 1271637, at *5 (M.D. Pa. Mar. 17, 2020) (inmate's “refusal to act as an informant or provide information regarding fellow inmates is not constitutionally protected activity” under the First Amendment).
2. Sixth Amendment Speedy Trial
PSP Troopers argue that Plaintiff has offered no specific facts to support his Sixth Amendment speedy trial claim. Plaintiff responds that his Sixth Amendment right to a speedy trial was violated because he was kept in jail during the Commonwealth's appeal of the suppression decision.
The Sixth Amendment guarantees the right of an accused “to a speedy and public trial.” U.S. Const. amend. VI. PSP Troopers are correct that Plaintiff has failed to assert any affirmative conduct that they engaged in to violate Plaintiff's Sixth Amendment speedy trial rights. That Trooper Lauricia performed a traffic stop, arrested Plaintiff, charged him with crimes, possibly testified in a bond hearing and testified in a suppression hearing does not constitute conduct that supports a speedy trial claim. See Posey v. Swissvale Borough, No. 2:12-CV-955, 2013 WL 989953, at *12 (W.D. Pa. Mar. 13, 2013) (questioning whether an officer serving as a witness or as a prosecuting officer can ever be a proper defendant in a Section 1983 case asserting a speedy trial violation under the Sixth Amendment).
Plaintiff's claim is also flawed as several courts have held that a Section “1983 plaintiff cannot pursue a claim based on a Sixth Amendment speedy trial violation where . . . the charges against the plaintiff were dismissed.” Posey, 2013 WL 989953, at *12; Young v. City of Hackensack, No. 04-CV-2011 (WJM), 2005 WL 1924327, at *2 (D.N.J. Aug. 11, 2005); Roth v. Lundell, No. 05-C-148-C, 2005 WL 1046494, at *5 (W.D. Wis. May 4, 2005); Hall v. Alabama, No. 2:09-CV-342-MHT WO, 2010 WL 582076, at *4 (M.D. Ala. Feb. 18, 2010); Kent v. California Dep't of Consumer Affs., No. 2:09-CV-02905 KJM, 2011 WL 2580382, at *9 (E.D. Cal. June 28, 2011). See also Heyerman v. Cty. of Calhoun, 680 F.3d 642, 649-50 (6th Cir. 2012) (Sutton, J., concurring) (“The Sixth Amendment guarantees speedy trials, not speedy detentions.”). Plaintiff has failed to allege any facts suggesting that his criminal charges ever went to trial.
Lastly, Plaintiff's claim fails as he only seeks monetary damages which are unavailable to a Section 1983 plaintiff alleging a Sixth Amendment speedy trial violation, as the only remedy for such a violation is dismissal of any criminal charges. United States v. MacDonald, 435 U.S. 850, 861 n. 7, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978) (“[T]his Court has held dismissal of the indictment to be the proper remedy when the Sixth Amendment right to a speedy trial has been violated.”).
For these reasons, it is respectfully recommended that PSP Troopers' motion to dismiss be granted in this respect and Plaintiff's Sixth Amendment speedy trial claim be dismissed with prejudice as amendment would be futile. Grayson, 293 F.3d at 108.
3. Fifth Amendment
PSP Troopers argue that Plaintiff alleges his Fifth Amendment rights were violated without specification and therefore infers that Plaintiff attempts to assert a due process violation under the Fifth Amendment. PSP Troopers argue that this clause does not apply to actions of state and local governments and only to the actions of the federal government.
Plaintiff responds that he agrees with PSP Troopers' argument, and it is therefore respectfully recommended that Plaintiff's Fifth Amendment claim be deemed voluntarily dismissed with prejudice.
4. Eighth Amendment Cruel and Unusual Punishment
PSP Troopers argue that Plaintiff's Eighth Amendment claim fails because the Eighth Amendment does not attach until an individual has been convicted and sentenced for his crimes and because Plaintiff has not been convicted or sentenced for these crimes, his Eighth Amendment claim must be dismissed.
Plaintiff superficially responds that PSP Troopers' actions were cruel and unusual and excessive.
“[T]he Eighth Amendment's Cruel and Unusual Punishments Clause does not apply until ‘after sentence and conviction.' ” Hubbard v. Taylor, 399 F.3d 150, 164 (3d Cir. 2005) (quoting Graham v. Connor, 490 U.S. 386, 392 n.6, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). Plaintiff has failed to allege any facts suggesting that he was convicted and sentenced to the crimes PSP Troopers charged him with and it is therefore respectfully recommended that PSP Troopers' motion to dismiss be granted and Plaintiff's Eighth Amendment claim be dismissed with prejudice as amendment would be futile. Grayson, 293 F.3d at 108.
5. Ninth Amendment
PSP Troopers argue that the Ninth Amendment, standing alone, confers no substantive rights that can sustain a Section 1983 claim.
Plaintiff responds that PSP Troopers “violated Plaintiff's [Ninth A]mendment [right]. They have did (sic) do by not guaranteeing to individuals those rights inherent to citizenship.” Pl.'s Resp. (ECF No. 70 at 6).
The Ninth Amendment to the United States Constitution provides: “The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.” U.S. Const. amend. IX. The Ninth Amendment limits the powers of the federal government and confers no substantive rights under Section 1983. See Metz v. McKinley, 583 F.Supp. 683 (S.D. Ga. 1984) aff'd, 747 F.2d 709 (11th Cir.1984); Nicolette v. Caruso, 315 F.Supp.2d 710, 718 (W.D. Pa. 2003); Bervinchak v. E. Hempfield Twp., No. 5:20-CV-05421, 2021 WL 2525561, at *3 (E.D. Pa. June 21, 2021); Spell v. Allegheny Cty. Admin., No. CIV.A. 14-1403, 2015 WL 1321695, at *4 (W.D. Pa. Mar. 24, 2015). As a result, Plaintiff cannot state a claim under the Ninth Amendment and it is respectfully recommended that PSP Troopers' motion to dismiss be granted and Plaintiff's Ninth Amendment claim be dismissed with prejudice, as amendment would be futile. Grayson, 293 F.3d at 108.
6. Fourteenth Amendment Due Process
PSP Troopers argue that Plaintiff's Fourteenth Amendment claim should be dismissed because the conduct Plaintiff complains violated his Fourteenth Amendment rights is covered by his Fourth Amendment claims of false arrest and malicious prosecution and therefore the “explicit source rule” bars Plaintiff's due process claim made under the Fourteenth Amendment.
Plaintiff superficially responds that Trooper Lauricia failed to uphold the law and therefore violated his due process rights.
The Due Process Clause of the Fourteenth Amendment of the United States Constitution provides that no state shall “deprive any person of life, liberty, or property, without due process of law[.]” U.S. Const. amend. XIV.
Under the “explicit source rule, ” “if a constitutional claim is covered by a specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process.” Betts, 621 F.3d at 259-60 (internal quotation marks and citation omitted). When, as here, a plaintiff alleges a deprivation of liberty in relation to a pretrial deprivation, such as the lack of probable cause for arrest or prosecution, such a claim must be analyzed under the Fourth Amendment and not the general due process provisions of the Fourteenth Amendment. Albright v. Oliver, 510 U.S. 266, 273-74, 114 S.Ct. 807, 813, 127 L.Ed.2d 114 (1994). Thus, because Plaintiff's claims of false arrest and malicious prosecution have an explicit source in the Fourth Amendment, it is respectfully recommended that PSP Trooper's motion to dismiss be granted and Plaintiff's Fourteenth Amendment claim be dismissed with prejudice as amendment would be futile. Grayson, 293 F.3d at 108.
7. Conspiracy
PSP Troopers argue that Plaintiff's conspiracy claim is superfluous because the same defendants are charged with the underlying constitutional violation and because he has failed to state a claim under the prevailing pleading standards.
Plaintiff responds that PSP Troopers staged a crime scene, took photographs of the staged crime scene and used them in discovery in a third-party criminal case and fabricated statements attributed to Plaintiff to bolster an affidavit for probable cause to charge a third-party with crimes.
To show a claim of civil conspiracy under Section 1983, Plaintiff must allege that (1) two or more persons conspired to deprive him of a constitutional right; (2) that one or more of the conspirators performed an overt act in furtherance of the conspiracy; and (3) the overt act injured Plaintiff by depriving him of his constitutional right; and (4) the conspirators were acting under color of state law. Barnes Found. v. Twp. of Lower Merion, 242 F.3d 151, 162 (3d Cir. 2001) (quoting 42 U.S.C. § 1983). A “mere general allegation” or “averment of conspiracy or collusion without alleging the facts which constituted such conspiracy or collusion is a conclusion of law and is insufficient” to state a claim for civil conspiracy under Section 1983. Kalmanovitz v. G. Heileman Brewing Co., 595 F.Supp. 1385, 1400 (D. Del. 1984). “A conspiracy may be charged under section 1983 as the legal mechanism through which to impose liability on all of the defendants without regard to who committed the particular act[.]” Holt Cargo Sys., Inc. v. Delaware River Port Auth., 20 F.Supp.2d 803, 843 (E.D. Pa. 1998) (quoting Hale v. Townley, 45 F.3d 914, 920 (5th Cir. 1995)). In other words, in a Section 1983 case “the function of conspiracy doctrine is merely to yoke particular individuals to the specific torts charged in the complaint.” Jones v. City of Chicago, 856 F.2d 985, 992 (7th Cir. 1988).
“ ‘[T]o properly plead an unconstitutional conspiracy, a plaintiff must assert facts from which a conspiratorial agreement can be inferred' or ‘plausible grounds to infer an agreement.' ” Great W. Mining & Min. Co. v. Fox Rothschild LLP, 615 F.3d 159, 178 (3d Cir. 2010) (quoting Bell Atlantic Corp., 550 U.S. at 556). It is not enough to allege “parallel conduct that could just as well be independent action.” Bell Atlantic Corp., 550 U.S. at 557. Moreover, “[o]nly allegations of conspiracy which are particularized, such as those addressing the period of the conspiracy, the object of the conspiracy, and certain actions of the alleged conspirators taken to achieve that purpose, will be deemed sufficient.” Rose v. Bartle, 871 F.2d 331, 366 (3d Cir. 1989).
Plaintiff has alleged enough specific facts that tend to show that PSP Troopers reached some understanding or agreement and planned to conspire together to deprive him of his constitutional rights with respect to his First Amendment retaliation claim. Plaintiff has alleged that both PSP Troopers threatened him to engage in the sting operation or they would “make things worse” for him, and later Plaintiff claims Trooper Morgan fabricated statements made by Plaintiff and used those fabricated statements to support criminal charges against a third party. Such allegations could support a finding of agreement or concerted action between Trooper Lauricia and Trooper Morgan to violate Plaintiff's constitutional rights. As to PSP Troopers' argument that this claim is superfluous, it would be premature to make such a determination as the specific actions of each Trooper is still unknown.
As for Plaintiff's conspiracy claims related to his false arrest claim, he has failed to allege facts suggesting that Trooper Morgan was involved in effecting Plaintiff's arrest. According to Plaintiff, Trooper Morgan became involved after Plaintiff's arrest when he was later transported to the station and questioned. Plaintiff has therefore failed to adequately allege facts suggesting that two or more people conspired to deprive Plaintiff of his constitutional rights by falsely arresting him. Further, Plaintiff has not pleaded his claim of civil conspiracy related to his false arrest claim with specificity and offers no facts suggesting the period of the conspiracy to falsely arrest him, the object of the conspiracy to falsely arrest him and what actions were taken by PSP Troopers to achieve that purpose. Thus, it is respectfully recommended that the PSP Trooper's motion to dismiss be granted and Plaintiff's false arrest conspiracy claim be dismissed with prejudice as Plaintiff was previously given an opportunity to amend his complaint and further amendment would be futile. Alston, 363 F.3d at 234 n.7 (“dismissals with prejudice may be appropriate where a . . . repleading does not remedy [a previous] Rule 8 violation.”).
As for Plaintiff's malicious prosecution conspiracy claim, to establish a malicious prosecution claim, a plaintiff must show that: “(1) the defendant initiated a criminal proceeding; (2) the criminal proceeding ended in his favor; (3) the defendant initiated the proceeding without probable cause; (4) the defendant acted maliciously or for a purpose other than bringing the plaintiff to justice; and (5) the plaintiff suffered deprivation of liberty consistent with the concept of seizure as a consequence of a legal proceeding.” Johnson v. Knorr, 477 F.3d 75, 82 (3d Cir. 2007). Although prosecutors typically initiate proceedings against criminal defendants, liability for malicious prosecution can also attach when “[a] defendant influences a third party to initiate the proceedings.” Bristow v. Clevenger, 80 F.Supp.2d 421, 432 (M.D. Pa. 2000) (citing Gilbert v. Feld, 788 F.Supp. 854, 861 (E.D. Pa. 1992)). A law enforcement officer may be liable for malicious prosecution where he “influenced or participated in the decision to institute criminal proceedings.” Halsey v. Pfeiffer, 750 F.3d 273, 297 (3d Cir. 2014) (citing Sykes v. Anderson, 625 F.3d 294, 308-09, 317 (6th Cir. 2010)).
Plaintiff has not pleaded with requisite specificity his malicious prosecution conspiracy claim. While he may have described independent conduct of each defendant to maliciously prosecute him, he has offered no allegation that suggests Troopers Lauricia and Morgan had an agreement and took concerted action to maliciously prosecute him and supports his claim with a mere general allegation of conspiracy which is not enough to survive dismissal. As a result, it is respectfully recommended that PSP Troopers' motion to dismiss be granted and Plaintiff's malicious prosecution conspiracy claim be dismissed with prejudice, as Plaintiff was previously given the opportunity to amend his complaint and further amended would be futile. Alston, 363 F.3d at 234 n.7 (“dismissals with prejudice may be appropriate where a . . . repleading does not remedy [a previous] Rule 8 violation.”).
8. Defamation claim
PSP Troopers argue that Plaintiff's defamation claim does not set forth a Section 1983 cause of action. The undersigned does not read Plaintiff's complaint as seeking to assert a Section 1983 claim based on Trooper Morgan's purported defamation of him, and Plaintiff does not respond to PSP Troopers' argument. All the same, PSP Troopers are correct that allegations of defamation against a public official do not automatically convert to a constitutional claim. Paul v. Davis, 424 U.S. 693, 706, 96 S.Ct. 1155, 1163, 47 L.Ed.2d 405 (1976). As a result, even if Plaintiff intended to assert a Section 1983 claim for Trooper Morgan's alleged defamation, it is respectfully recommended that PSP Troopers' motion to dismiss be granted and Plaintiff's claims for a constitutional defamation claim under Section 1983 be dismissed with prejudice as amendment would be futile. Grayson, 293 F.3d at 108.
The undersigned still recognizes a common law defamation claim against Trooper Morgan, which he has not moved to dismiss.
d. Conclusion
For these reasons, it is respectfully recommended:
1. Westmoreland County ADAs motion to dismiss be granted and Plaintiff's claims against those Defendants be dismissed with prejudice;
2. Judicial Defendants' motion to dismiss be granted and Plaintiff's claims against those Defendants be dismissed with prejudice; and
3. PSP Troopers motion to dismiss be granted in part and denied in part. It is recommended that PSP Troopers' motion be granted related to Plaintiff's Fifth, Sixth, Eighth, Ninth, Fourteenth Amendment claims, Plaintiff's claims for conspiracy under the Fourth Amendment for false arrest and malicious prosecution, and Plaintiff's constitutional defamation claim which should be dismissed with prejudice and denied related to Plaintiff's claims for First Amendment retaliation, conspiracy to violate the First Amendment, common law defamation, common law intentional infliction of emotional distress and common law abuse of process.
Under 28 U.S.C. § 636(b)(1)(B) and (C), Federal Rule of Civil Procedure 72, and the Local Rules for Magistrates, the parties have until August 30, 2021 to file objections to this report and recommendation. Unless Ordered otherwise by the District Judge, responses to objections are due fourteen days after objections are filed. Failure to file timely objections will constitute a waiver of any appellate rights. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011).