Opinion
2:20-CV-00444-LPL
02-23-2021
WALTER BEHANNA, DEBBIE BAXTER BEHANNA, Plaintiffs, v. COMMONWEALTH OF PENNSYLVANIA, WASHINGTON COUNTY PROBATION, HEATHER TESTA, PROBATION OFFICER; Defendants,
DISTRICT JUDGE CATHY BISSOON
REPORT AND RECOMMENDATION ON MOTIONS TO DISMISS
ECF NOS. 17, 20, 38
LISA PUPO LENIHAN, United States Magistrate Judge
I. RECOMMENDATION
For the reasons below, it is respectfully recommended that the Motions to Dismiss filed by Defendants the Commonwealth of Pennsylvania (ECF No. 17), Washington County Probation (ECF No. 20) and Heather Testa (ECF No. 38) be granted.
II. REPORT
A. Procedural Background
Plaintiffs Walter Behanna and Debbie Baxter Behanna (“Plaintiffs”), pro se, filed their original Complaint on April 28, 2020. ECF No. 2. They bring suit pursuant to 42 U.S.C. § 1983 alleging constitutional violations arising out of interactions with Defendant Heather Testa, a Washington County Probation Officer. Plaintiffs also filed a separate complaint on a separate docket which they later clarified was meant to be the Amended Complaint to this docket. ECF No. 7. That complaint was transferred to this docket as the Amended Complaint. ECF No. 8. Plaintiffs then filed a Second Amended Complaint, docketed on July 9, 2020. ECF No. 9. Defendant Commonwealth of Pennsylvania filed a Motion to Dismiss on October 2, 2020. ECF No. 17. Defendant Washington County Probation filed a Motion to Dismiss on October 13, 2020. ECF No. 20. Defendant Heather Testa filed a Motion to Dismiss along with exhibits on November 19, 2020. ECF No. 38. Plaintiffs filed Responses in Opposition to both the Commonwealth of Pennsylvania's Motion to Dismiss (ECF No. 32) as well as to Heather Testa's Motion to Dismiss (ECF No. 48). Plaintiffs did not submit a Response in Opposition to Washington County Probation's Motion to Dismiss, but their Response at ECF No. 32 is equally applicable to the extent that both Motions argue Eleventh Amendment immunity. On February 16, 2021, Defendant Heather Testa submitted a Reply to Plaintiffs' Response in Opposition, with further exhibits, including court transcripts. ECF No. 53. The Motions are now ripe for disposition.
A third Plaintiff, Linda Ross, withdrew from the case on November 5, 2020. ECF No. 34.
See discussions of the public documents being judicially noticed below.
On June 12, 2018, Plaintiff Walter Behanna pleaded guilty to three criminal counts in the Court of Common Pleas in Washington County, Pennsylvania. ECF No. 38-3, p. 3. These charges arose out of an altercation with his wife, Debbie Behanna, at their home at 282 Shannon Road. ECF No. 53-4, p. 5. Plaintiff was sentenced to, inter alia, probation for five years (with a consecutive two years for one of the charges), the first 23 months of which to be supervised by the Washington County Veterans Court Program. ECF No. 38-5, p. 1. This court sentencing order (“sentencing order”) is referred to in Plaintiff Walter Behanna's Washington County Criminal Docket (“criminal docket”) at ECF No. 38-3, p. 5. Plaintiff was ordered to comply with all terms and conditions of the performance contract he signed with Veterans Court (“performance contract”). ECF No. 38-5, p. 2. The terms include submitting to warrantless searches of his property, person, or vehicle by his supervising probation officer, as well as truthfully answering any questions posed to him by a sworn law enforcement entity. ECF No. 38-6, pp.1, 3. During his sentencing hearing, Plaintiff Walter Behanna also agreed to a No Contact Order as to Debbie Behanna. ECF No. 53-4, p. 18.
On January 21, 2020, Plaintiffs allege that Walter Behanna was “detained” by Defendant Testa at 29 West Cherry Ave, Suite 413, Washington, PA 15301, where the Washington County Probation Office is located. ECF No. 9. Mr. Behanna asserts that he was “unable to answer her questions fast enough, given his disabilities of diabetes he is disabled, slow in responses, and a veteran.” Id. Plaintiffs allege that Defendant Testa, who is a probation officer, asked Mr. Behanna questions regarding his relations with his wife. ECF No. 9. From their meeting, Officer Testa learned that there may be evidence that Debbie Behanna intended harm against Judge DiSalle, who had sentenced Mr. Behanna to probation, for recommending couples' counseling. ECF No. 53-5, pp. 2-3. Walter Behanna also gave an indication that he may have violated the No Contact Order by communicating with his wife. Id. Officer Testa brought Walter Behanna to a hearing before Judge DiSalle and requested permission to search Mr. Behanna's personal effects. Id. During the hearing she testified that Mr. Behanna told her that he had a photo of a hit list of names that Mrs. Behanna made, including that of Judge DiSalle, on his phone, which was in the trailer where he lived. Id. p. 4. Judge DiSalle found good cause to search Mr. Behanna's personal effects. Id. p. 13. Officer Testa then drove with Mr. Behanna to the trailer where he resided, which is on the same property as the residence at 282 Shannon Road, and conducted a search. ECF Nos. 9, 53-5. A search of the trailer yielded a mobile phone; a search of Mr. Behanna's vehicle yielded several other items which made Officer Testa suspect that Mr. Behanna may be in contact with his wife. ECF No. 53-5, p. 20-21. Officer Testa knocked on the door of the main house, where she suspected Mrs. Behanna lived, but no one answered the door and Testa did not enter. Id. pp. 22-23.
A probation revocation hearing for Mr. Behanna took place on May 12, 2020, before Judge DiSalle. ECF No. 53-6. At the hearing, Judge DiSalle revoked Mr. Behanna's participation in the Veteran's Court Treatment Program, and sentenced him to prison time. Id. p. 51. Mr. Behanna is currently incarcerated at SCI Phoenix.
Plaintiffs make claims of violations of their rights under the Fourth Amendment, based on the search of the trailer; violations of the Fifth Amendment, based on Defendant Testa asking questions which elicited self-incriminating responses; and violations of the Fourteenth Amendment, based on Testa demanding immediate answers during her questioning and incarcerating him without due process. They seek compensatory damages of $500,000, and an injunction “preventing the employees of Washington County from interfering with the marriages of its citizens, ” or search properties of those citizens who are not on probation. Id.
B. Legal Standard
The United States Court of Appeals for the Third Circuit summarized the standard to be applied in deciding motions to dismiss filed pursuant to Rule 12(b)(6):
Under the “notice pleading” standard embodied in Rule 8 of the Federal Rules of Civil Procedure, a plaintiff must come forward with “a short and plain statement of the claim showing that the pleader is entitled to relief.” As explicated in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), a claimant must state a “plausible” claim for relief, and “[a] claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Although “[f]actual allegations must be enough to raise a right to relief above the speculative level, ” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), a plaintiff “need only put forth allegations that raise a reasonable expectation that discovery will reveal evidence of the necessary element.” Fowler, 578 F.3d at 213 (quotation marks and citations omitted); see also Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 117-18 (3d Cir. 2013).Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014).
In addition to the complaint, courts may consider matters of public record and other matters of which a court may take judicial notice, court orders, and exhibits attached to the complaint when adjudicating a motion to dismiss under Rule 12(b)(6). Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994) (citing 5A Wright and Miller, Federal Practice, and Procedure: Civil 2d, § 1357; Chester County Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3d Cir. 1990)). A court may also consider indisputably authentic documents. Spruill v. Gillis, 372 F.3d 218, 223 (3d Cir. 2004); Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993); Golden v. Cook, 293 F.Supp.2d 546, 551 (W.D. Pa. 2003) (“[C]ourts are permitted to consider matters of which they may take judicial notice, including records and reports of administrative bodies, and publicly available records and transcripts from judicial proceedings ‘in related or underlying cases which have a direct relation to the matters at issue.'”) (citations omitted).
When considering pro se pleadings, a court must employ less stringent standards than when judging the work product of an attorney. Haines v. Kerner, 404 U.S. 519, 520 (1972). When presented with a pro se complaint, the court should construe the complaint liberally and draw fair inferences from what is not alleged as well as from what is alleged. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003). In a § 1983 action, the court must “apply the applicable law, irrespective of whether the pro se litigant has mentioned it by name.” Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (quoting Holley v. Dep't of Veteran Affairs, 165 F.3d 244, 247-48 (3d Cir. 1999)). See also Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (“Since this is a § 1983 action, the [pro se] plaintiffs are entitled to relief if their complaint sufficiently alleges deprivation of any right secured by the Constitution.”) (quoting Higgins, 293 F.3d at 688). Notwithstanding this liberality, pro se litigants are not relieved of their obligation to allege sufficient facts to support a cognizable legal claim. See, e.g., Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002); Riddle v. Mondragon, 83 F.3d 1197, 2102 (10th Cir. 1996).
C. Discussion
1. Commonwealth of Pennsylvania's Motion to Dismiss
Defendant Commonwealth of Pennsylvania argues that the Second Amended Complaint should be dismissed against it because it has Eleventh Amendment Immunity, and also because the Complaint fails to state a claim. ECF No. 18. Plaintiff asserts that Eleventh Amendment immunity can be raised only in an “inferior state court.” Defendant refutes this argument by citing Acosta v. Democratic City Committee, 288 F.Supp.3d 597, 625 (E.D. Pa. 2018), which states, “[u]nder the Eleventh Amendment, a nonconsenting state [such as Pennsylvania] is immune from suit in federal court.”
The Eleventh Amendment bars civil rights suits against a State in federal court by private parties where the State has not consented to such action. Laskaris v. Thornburgh, 661 F.2d 23, 25 (3d Cir. 1981) (citing Alabama v. Pugh, 438 U.S. 781 (1978)). The Supreme Court of the United States has consistently held that an un-consenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State. Edelman v. Jordan, 415 U.S. 651, 662-63 (1974); Employees v. Dep't of Pub. Health and Welfare, 411 U.S. 279, 280 (1973). This immunity applies regardless of the relief sought by a party. Id.; Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984) (holding Eleventh Amendment immunity applies “regardless of the relief sought.”). The Commonwealth of Pennsylvania, through statutory authority, has expressly withheld consent to suit in federal court. 42 Pa. Cons. Stat. Ann. § 8521(b); Laskaris, 661 F.2d at 25.
Moreover, the United States Supreme Court has determined that Congress did not intend for § 1983 to overcome the sovereign immunity of States as embodied in the Eleventh Amendment. Will v. Michigan Dep't of State Police, 491 U.S. 58, 66 (1989). Thus, States, as well as entities of the State, are not “persons” who can be subject to liability under § 1983.
Section 1983 of the Civil Rights Act provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or any other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ....42 U.S.C. § 1983.
Defendant Commonwealth of Pennsylvania is thus immune from suit. It is respectfully recommended that the Motion to Dismiss by the Commonwealth of Pennsylvania be granted, and all claims against it be dismissed with prejudice.
2. Washington County Probation's Motion to Dismiss
Pennsylvania's Eleventh Amendment immunity extends to suits against “arms of the state, ” i.e., departments or agencies of the State having no existence separate from the State. Laskaris, 661 F.2d at 25 (citing Mt. Healthy Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977)). “As an arm of the State, an individual judicial district and its probation and parole department are entitled to Eleventh Amendment immunity.” Haybarger v. Lawrence Cty. Adult Prob. & Parole, 551 F.3d 193, 198 (3d Cir. 2008). Thus, the Washington County Probation department is an arm of the State, and is immune from suit under the Eleventh Amendment. It is respectfully recommended that the Motion to Dismiss filed by Washington County Probation be granted, and all claims against it be dismissed with prejudice.
3. Officer Heather Testa's Motion to Dismiss and Motion for a More Definite Statement
The Court respectfully recommends that the Motion to Dismiss as it pertains to Defendant Testa in her official capacity be granted and all claims in that respect be dismissed with prejudice. The Eleventh Amendment bar applies to actions in federal court against state officials in their official capacity for money damages. Laskaris, 661 F.2d at 26 (citing Edelman v. Jordan, 415 U.S. 651 (1974)). That is, a suit against an official in his or her official capacity is, in fact, a suit against the entity of which an officer is an agent. Kentucky v. Graham, 473 U.S. 159, 166 (1985). Defendant Testa in her capacity as a probation officer is a state official and thus it is appropriate that she be protected with absolute immunity in that capacity. This leaves the remaining claims against Defendant Testa in her individual capacity.
Defendant Testa maintains that Plaintiffs fail to state a claim against her. ECF No. 39, p. 8. She supports her argument by asking the Court to take judicial notice of the contents of documents having to do with the underlying criminal matter in which Walter Behanna was the defendant. Id. These documents show that Plaintiff Walter Behanna was sentenced to probation as a result of his guilty plea in the criminal matter. Id. p. 9. Included in the terms of his performance contract with the Veterans Court are warrantless searches of his property. Id. Defendant Testa asserts that she violated none of Plaintiffs' constitutional rights as her search was in keeping with the terms of Walter Behanna's performance contract with the Veterans Court. Id. She submits for judicial notice a document titled “Petition for Revocation of Intermediate Punishment/Probation, ” which lays out her version of the events that took place on January 21, 2020. ECF No. 38-7. Finally, she includes in her Reply three transcripts from Walter Behanna's sentencing hearing (ECF No. 53-4), probable cause hearing (ECF No. 53-5), and probation revocation hearing (ECF No. 53-6).
To better determine the sufficiency of the pleading in relation to each claim, the Court takes judicial notice of the criminal docket, No. CP-63-CR-0003143-2017 at ECF No. 38-3. It is a publicly available record from an underlying judicial proceeding which has a direct relation to the matters at issue. See Golden v. Cook, supra. The Court also takes judicial notice of the sentencing order at ECF No. 38-5, which is referenced in the criminal docket at ECF No. 38-3. The Court is satisfied that this order is also a public record from the same criminal matter. The Court takes judicial notice of the Veterans Court performance contract at ECF No. 38-6, which bears the same time stamp of the clerk of court of Washington County as the other documents, as well as the signatures of Mr. Behanna, his defense attorney, and the presiding judge. The performance contract is also referenced in the sentencing order at ECF No. 38-5. For the purpose of determining whether Plaintiffs stated a claim for violation of the Fourth Amendment, the Court takes judicial notice of the transcripts at ECF Nos. 53-4, 53-5, and 53-6.
See Sands v. McCormick, 502 F.3d 263 (3d Cir. 2007) (finding that on a motion to dismiss in a § 1983 action claiming false arrest, the district court properly relied on the transcript of a preliminary hearing on the underlying action in concluding that there was probable cause to file criminal charges against arrestee; it was not necessary to determine the truth of the public documents, but only that the documents had been used by the sergeant in finding probable cause to make the arrest). Here, it is also not necessary to determine the truth of the transcripts, only that there was a proceeding during which a judge decided there was probable cause to search Mr. Behanna's trailer, which was what Officer Testa relied on to conduct the search.
The Court declines to take judicial notice of the exhibit at ECF No. 38-7, entitled “Petition for the Revocation of Intermediate Punishment/Probation.” For the purposes of a Motion to Dismiss, that document contains self-serving statements from Defendant Testa and otherwise lacks indications that it is a publicly available document.
a. The Fourth Amendment Claim
Under normal circumstances, the Fourth Amendment requires government officials to have both probable cause and a warrant to conduct a search. United States v. Baker, 221 F.3d 438, 443 (3d Cir. 2000), as amended (Sept. 21, 2000). In the case of parolees or probationers, however, the requisite level of suspicion is reduced and a warrant is not required. Id. The police can search a probationer's residence when the probationer is subject to a search provision, and the police have a reasonable suspicion that the probationer is engaging in illegal activity. Corradi v. New Jersey State Parole Bd., No. CV 16-5076 (FLW), 2020 WL 6305536, at *8 (D.N.J. Oct. 28, 2020) (citing United States v. Knights, 534 U.S. 112, 121 (2001)).
Defendant Testa argues that Plaintiffs fail to state any claims of constitutional violations against her. ECF No. 39, p. 7. Defendant Testa asserts that the exhibits she submits show that she legally searched the property and premises at 282 Shannon Road, because Mr. Behanna consented to warrantless searches, and because she had a reasonable suspicion to search it after Mr. Behanna provided information suggesting that he may be violating the terms of his probation. Id. pp. 8-9. The Court finds that the court transcripts unequivocally establish that Defendant Testa did not violate the Fourth Amendment's prohibition against unreasonable searches when she searched Plaintiff Walter Behanna's trailer. Mr. Behanna agreed to submit to warrantless searches of his “person, property, or vehicle” as part of the terms and conditions of the performance contract. ECF No. 38-6, p. 1. Before searching Mr. Behanna's trailer, Officer Testa first took Mr. Behanna to appear before the judge at the Veterans Court when she suspected Mr. Behanna of having violated the terms of his contract and probation. The judge found “good cause” to search Mr. Behanna's property. ECF No. 53-5, p. 13. Thus, Plaintiffs have failed to state a claim of Fourth Amendment violation against Heather Testa as to Mr. Behanna. After searching Mr. Behanna's vehicle and trailer, Officer Testa indicated to Judge DiSalle that she did not enter the house that was on the same property, where she believed Mrs. Behanna to reside. As to any claims of Fourth Amendment violation of Mrs. Debbie Behanna's rights, Plaintiffs also fail to state a claim. Thus, it is respectfully recommended that the claims of Fourth Amendment violation against Officer Testa on behalf of both Mr. and Mrs. Behanna be dismissed with prejudice, and that the Motion to Dismiss on behalf of Defendant Testa as to the Fourth Amendment claims be granted.
She makes this argument in relation to claims of violation of all three constitutional amendments as stated in Plaintiffs' Second Amended Complaint.
Although the Second Amended Complaint alleges that the trailer belonged to Debbie Behanna, the court transcripts show that Walter Behanna did in fact reside there. Even if Plaintiffs could demonstrate that Mrs. Behanna possessed the title to the trailer, it does not conflict with the fact that it was Mr. Behanna's residence. Mr. Behanna also provided the trailer's address to the Probation Office as his residence. ECF No. 53-6, p. 38. There was a No Contact Order against Mr. Behanna, and Mrs. Behanna did not live at the trailer. Thus, this issue does not require another amendment of the complaint or conversion of the Motion to Dismiss to a Motion for Summary Judgement.
b. The Fifth Amendment Claim
The Fifth Amendment protects a person from being “compelled in any criminal case to be a witness against himself.”Minnesota v. Murphy, 465 U.S. 420, 426 (1984). A state may not impose substantial penalties because a witness elects to exercise his Fifth Amendment right not to give incriminating testimony against himself, but it may require a probationer to appear and discuss matters that affect his probationer's status, and such requirement, without more, does not give rise to self-executing privilege against self-incrimination. Murphy at 434-35. Stated in another way, a probationer's general obligation to appear and answer questions truthfully does not in itself convert his otherwise voluntary statements into compelled ones. Garland v. Joseph J. Peters Inst. (JJPI), No. 2:16-CV-00527, 2017 WL 1196639, at *4 (E.D. Pa. Mar. 31, 2017) (quoting Murphy at 427) (internal quotations omitted).
In this matter, however, Plaintiffs are seeking monetary damages, which is not the appropriate remedy for the violation of the right against compelled self-incrimination under the Fifth Amendment. The remedy for a Miranda violation is the exclusion from evidence of any compelled self-incrimination, not a Section 1983 action. Giuffre v. Bissell, 31 F.3d 1241, 1256 (3d Cir. 1994) (quoting Warren v. City of Lincoln, 864 F.2d 1436, 1442 (8th Cir.)) (internal quotations omitted). See also Leveto v. Lapina, No. 98-143 ERIE, 2000 WL 331902, at *16 (W.D. Pa. Feb. 5, 2000), aff'd, 258 F.3d 156 (3d Cir. 2001) (finding that plaintiffs seeking money damages because they cooperated in custodial interrogations and unwittingly became witnesses against themselves is not an instance when a party seeks to suppress from evidence statements made after an alleged custodial interrogation); K.A. ex rel. J.A. v. Abington Heights Sch. Dist., 28 F.Supp.3d 356, 366 (M.D. Pa. 2014) (“defendants properly raise the defense that a Miranda violation is remedied by the suppression of evidence of any self-compelled incrimination, not a civil action.”).
Even if the remedy were appropriate under § 1983, Plaintiffs have failed to state a claim for violating the Fifth Amendment prohibition against compelled self-incriminating statements. Officer Testa did not act unreasonably by asking Mr. Behanna questions during their routine probation meeting. A self-incriminating statement would be considered compelled if the probationer were threatened with substantial penalties for invoking the Fifth Amendment privilege. See Murphy at 434-35; see also Roman v. DiGuglielmo, 675 F.3d 204 (3d Cir. 2012) (A penalty is sufficiently compelling to constitute a Fifth Amendment self-incrimination violation if the penalty imposed amounts to an atypical and significant hardship on the petitioner's prison conditions); United States v. Frierson, 945 F.2d 650 (3d Cir. 1991) (Increase in sentence or denied reduction in sentence is penalty in context of Fifth Amendment jurisprudence). Plaintiffs have alleged no facts to show that Mr. Behanna at any point tried to invoke his Fifth Amendment privilege, nor do they allege that Officer Testa compelled Mr. Behanna to make any statements that could be used against him in a criminal proceeding by threatening him with any kind of penalty. Thus, it is respectfully recommended that Defendant Testa's Motion to Dismiss with regard to the Fifth Amendment violation claims against her be granted on the basis that monetary damages under § 1983 is not an appropriate remedy for a violation of the privilege against self-incrimination under the Fifth Amendment, and that Plaintiffs have failed to state a claim. It is respectfully recommended that the Fifth Amendment claims be dismissed with prejudice.
Plaintiffs cite to People v. Roberson, 2016 CO 36, 377 P.3d 1039, as suggesting that “a probationer need not answer questions that may incriminate that probationer.” ECF No. 48, p. 3. Plaintiffs misunderstand the case, a Colorado State Supreme Court decision that has no precedential value in this jurisdiction. (Although there does not appear to be conflict between Colorado and this jurisdiction regarding Fifth Amendment law in the present context of a probationer being questioned.) The case examines the Fifth Amendment rights of a sex offender on a supervised release program, when he was asked for statements which could affect his probation revocation hearing as well as constitute new criminal charges. This case makes clear that someone on probation retains their rights against compelled self-incrimination, but that does not mean that the Fifth Amendment provides a blanket protection to a probationer from having to give self-incriminating answers, or that such answers would be automatically inadmissible in a criminal proceeding. The probationer must still have sought to invoke the privilege while under questioning (because the privilege is non self-executing in a probation context), and show that they were threatened with some kind of penalty for invoking the privilege (what constitutes compulsion), for a Court to reasonably find that the statements were obtained in violation of the Fifth Amendment's prohibition against using compelled statements from someone to incriminate them. The remedy for such a finding, as discussed above, is not monetary damages, but suppressing the statement from being used in any new criminal proceeding against the probationer.
c. The Fourteenth Amendment Claim
The Fourteenth Amendment demands some minimal process before a state actor takes someone who is set to serve his sentence at home, on electronic monitoring, and instead puts him in prison or another form of “institutional confinement.” McBride v. Cahoone, 820 F.Supp.2d 623, 631 (E.D. Pa. 2011). A previously sentenced probationer is entitled to a preliminary and a final revocation hearing. See Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973). Mr. Behanna's Fourteenth Amendment claim of his right to procedural and substantive due process of law appears to be based on the allegations that Officer Testa questioned him, which led to his incarceration, without him having committed a crime. ECF No. 9, p. 3. However, the criminal docket (ECF No. 38-3, p. 6) and transcript at ECF No. 53-6 show that Mr. Behanna was given at least one probation revocation hearing after the incident alleged by his Second Amended Complaint. A hearing notice was issued on February 6, 2020, about 16 days after Defendant Testa questioned Mr. Behanna. ECF No. 38-3. And the court transcripts show a hearing took place on May 12, 2020. ECF No. 53-6. Thus, the Second Amended Complaint fails to state a claim against Defendant Testa for any Fourteenth Amendment violations, as Mr. Behanna was accorded due process before having probation revoked and being sentenced to incarceration. Plaintiffs' assertion that Defendant Testa violated Mr. Behanna's Fourteenth Amendment rights when she “demanded immediate response from an aged disabled veteran” does not sufficiently allege how she deprived him of liberty without due process. Id. p. 3. Thus, it is respectfully recommended that this claim be dismissed with prejudice, and that Defendant Testa's Motion to Dismiss as to the Fourteenth Amendment claim be granted.
D. Conclusion
For the reasons stated above, the Court respectfully recommends that the Motion to Dismiss filed by Defendant the Commonwealth of Pennsylvania be granted, and that all claims against it be dismissed with prejudice.
The Court respectfully recommends that the Motion to Dismiss filed by Defendant Washington County Probation be granted, and that all claims against it be dismissed with prejudice.
Finally, the Court respectfully recommends that the Motion to Dismiss filed by Defendant Heather Testa be granted in its entirety, and that all claims against her be dismissed with prejudice.
While we normally require a court to give the plaintiff an opportunity to amend a complaint, a complaint may be dismissed without allowing such an opportunity if amendment would be futile. Day v. Florida, 743 F.3d 40, 43 (3d Cir. 2014).
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of service of a copy of this Report and Recommendation to file objections. Any party opposing the objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file timely objections will constitute a waiver of any appellate rights.