Opinion
Case No. 1:20-cv-22
05-11-2020
MARQUICE EVANS, Plaintiff v. RICHARD LORAH, et al., Defendants
UNITED STATES DISTRICT JUDGE SUSAN PARADISE BAXTER REPORT AND RECOMMENDATION MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
I. Recommendation
It is recommended that this action be dismissed as legally frivolous and/or for failure to state a claim in accordance with 28 U.S.C. § 1915(e).
II. Report
Plaintiff, an inmate confined at SCI-Dallas, commenced this action by filing a civil rights complaint pursuant to 42 U.S.C. § 1983 against the following individuals: Police Captain Richard Lorah, Police Detective Sean Bogart, former Magisterial District Judge Tom Robie, Chief Public Defender Patricia Kennedy, court-appointed defense attorneys Bruce Sandmeyer and Emily Merski, District Attorney Jack Daneri and former District Attorney Erin Connelly, and Erie County Judges John Trucilla and Jamie Mead. ECF No. 1-2 at 2-3. The Court granted Plaintiff's motion to proceed in forma pauperis on April 27, 2020. ECF No. 2.
In his complaint, Plaintiff asserts violations of the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. As best as the Court can discern, Plaintiff primarily appears to be asserting false arrest and false imprisonment claims against Lorah, Bogart, and Robie, and malicious prosecution and/or abuse of process claims against Dinari, Connelly, Judge Trucilla, and Judge Mead. ECF No. 1-2. Plaintiff also makes passing references to due process, equal protection, cruel and unusual punishment, and ineffective assistance of counsel. Id. at 4-5. Plaintiff seeks $50,000,000.00 in damages. Id. at 6.
A. Standard for review
Having been granted leave to proceed in forma pauperis, see ECF No. 4, Plaintiff is subject to the screening provisions in 28 U.S.C. § 1915(e). Among other things, that statute requires the Court to dismiss any action in which the Court determines that the action is "frivolous or malicious; fails to state a claim upon which relief may be granted; or seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2); Muchler v. Greenwald, 624 Fed. Appx. 794, 796-97 (3d Cir. 2015). A frivolous complaint is one which is either based upon an indisputably meritless legal theory (such as when a defendant enjoys immunity from suit) or based upon factual contentions which are clearly baseless (such as when the factual scenario described is fanciful or delusional). Neitzke v. Williams, 490 U.S. 319, 327 (1989). The determination as to whether a complaint fails to state a claim upon which relief may be granted is governed by the same standard applicable to motions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. D'Agostino v. CECOM RDEC, 436 Fed. Appx. 70, 72 (3d Cir. 2011) (citing Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999)).
Because Plaintiff is proceeding pro se, his allegations, "however inartfully pleaded," must be held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520-521 (1972). Moreover, under the liberal pleading rules, during the initial stages of litigation, a district court should construe all allegations in a complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997).
B. Background
According to Plaintiff's complaint, Captain Richard and Detective Lorah filed a criminal complaint against him on August 19, 2015, without an affidavit of probable cause. Id. at 4. Magisterial District Judge Robie "signed the defective criminal complaint verifying that it was sworn and completed." Id. Kennedy "was notified that the criminal complaint did not have an affidavit of probably cause." Id. Connelly "clarified that there was no affidavit of probable cause and none was required because [Plaintiff] was in custody in Butler Pa on felony drug charges." Id.
Sandmeyer represented Plaintiff in the criminal case and "took no action to address the fact that [Plaintiff] was unlawfully arrested due to an affidavit of probable cause not being completed." Id. Merski represented Plaintiff on direct appeal and was informed of the defective probably cause affidavit "and took no action to inform the Erie County Courts or obtain one." Id. at 5. Judge Trucilla was informed of the lack of an affidavit of probable cause "via time-stamped right to know request response from first deputy of clerk of records Robert Catalde, Esq." Id. Judge Mead was informed of the same "via PCRA amended petition." Id. Despite the foregoing, Judge Mead denied Plaintiff's PCRA petition on November 19, 2019. Id.
C. Analysis
Plaintiff's claims are subject to dismissal pursuant to § 1915 for several reasons, many of which overlap. The Court will address each of these deficiencies in turn.
1. Personal involvement
First, Plaintiff's complaint contains no substantive allegations with respect to several Defendants. It is axiomatic that a plaintiff in a Section 1983 action "must show that each and every defendant was 'personal[ly] involve[d]' in depriving him of his rights." Kirk v. Roan, 2006 WL 2645154, at *3 (M.D. Pa. 2006) (quoting Evancho v. Fischer, 423 F.3d 347, 353 (3d Cir. 2006)). Despite this requirement, the complaint alleges no facts at all concerning Daneri, and the only allegations concerning Connelly, Kennedy, and Judge Trucilla are that each "was notified" of the allegedly defective criminal complaint. Aside from receiving these "notifications," none of these individuals is alleged to have had any role in Plaintiff's criminal arrest or conviction. Each of these Defendants should be dismissed for lack of personal involvement.
2. Statute of limitations
To the extent Plaintiff is raising claims that accrued at the time of his arraignment, such as false arrest and false imprisonment, those claims are barred by the two-year statute of limitations applicable to § 1983 claims in Pennsylvania. See Kach v. Hose, 589 F.3d 626, 634 (3d Cir. 2009) (applying two-year statute of limitation to § 1983 claims); Wallace v. Kato, 549 U.S. 384, 389-90, 397 (2007) (holding that false arrest and false imprisonment charges accrue at the time of arraignment). Plaintiff's publicly available state court docket indicates that he was arraigned on November 6, 2015. See Commonwealth v. Evans, No. CP-25-CR-2901-2015. Because Plaintiff did not file his complaint until 2020, the limitations period on such claims has long expired.
3. Heck v. Humphrey
Plaintiff's challenge to his post-arraignment detention based on the lack of a probable cause affidavit is barred by the United States Supreme Court's holding in Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). In Heck, the Supreme Court held that: "to recover damages [or other relief] for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus[.]" Heck, 512 U.S. at 486-87 (footnote and internal citation omitted). In other words, "a prisoner cannot use § 1983 to obtain damages where success would necessarily imply the unlawfulness of a (not previously invalidated) conviction or sentence." Wilkinson v. Dotson, 544 U.S. 74, 81 (2005).
In his complaint, Plaintiff acknowledges that his conviction has not been invalidated or reversed. ECF No. 1-2 at 5. A review of his state court docket confirms this. Commonwealth v. Evans, No. CP-25-CR-2901-2015. Consequently, Plaintiff's malicious prosecution and abuse of process claims are barred by Heck v. Humphrey. See, e.g., Nash v. Kenney, 784 Fed. Appx. 54, 57 (3d Cir. 2019) ("Nash's malicious-prosecution and speedy-trial claims—which challenge his post-arraignment detainment—are barred by the favorable-termination rule of Heck v. Humphrey"); Washington v. State Municipality Philadelphia City, 2020 WL 1922904, at *3 (E.D. Pa. Apr. 21, 2020) ("Washington's malicious prosecution claim fails because, if his convictions have not been invalidated, he cannot establish favorable termination."). That said, these claims should be dismissed without prejudice to Plaintiff's ability to file a new complaint challenging the same conduct if his conviction is later overturned.
4. Absolute immunity
Plaintiff's claims against his own attorneys, Sandmeyer and Merski, are similarly precluded. Private defense counsel, "public defenders[,] and court-appointed counsel acting within the scope of their professional duties are absolutely immune from civil liability under § 1983." Walker v. Pennsylvania, 580 Fed. Appx. 75, 78 (3d Cir. 2014) (quoting Black v. Bayer, 672 F.2d 309, 320 (3d Cir. 1982)). This immunity arises from the fact that a criminal defense attorney, even if employed by the state as a public defender "does not act under color of state law when performing a lawyer's traditional functions." Polk Cnty. v. Dodson, 454 U.S. 312, 318 (1981). Plaintiff's claims against Sandmeyer and Merski should be dismissed on this basis.
5. Judicial immunity
Plaintiff's claims against Judges Trucilla, Mead, and Magisterial District Judge Robie (collectively, the "Judicial Defendants") are barred by the immunity afforded to the states by the Eleventh Amendment. It is axiomatic that the Eleventh Amendment bars suits against a state. Alabama v. Pugh, 438 U.S. 781, 781-82 (1978). Each of the Judicial Defendants is considered to be an arm of the Commonwealth of Pennsylvania and is entitled to Eleventh Amendment immunity with respect to any claims against them in their official capacity. Van Tassel v. Lawrence Co. Domestic Relations Section, 659 F.Supp.2d 672, 676-82 (W.D. Pa. 2009), aff'd, 390 Fed. Appx. 201 (2010) (recognizing that Pennsylvania common pleas judges are entitled to Eleventh Amendment immunity with respect to official capacity claims).
Although a state may expressly waive Eleventh Amendment immunity, "Pennsylvania has not waived its immunity from suit in federal court." See Toth v. California Univ. of Pennsylvania, 844 F.Supp.2d 611, 648 (W.D. Pa. 2012) (citing 42 Pa.C.S.A. § 8521(b)). Nor did Congress intend to abrogate the traditional sovereign immunity afforded to the states by enacting 42 U.S.C. § 1983. Id. at 648.
To the extent that Plaintiff asserts a monetary claim against the Judicial Defendants in their individual capacities, "[i]t is a well-settled principle of law that judges are generally immune from a suit for money damages." Figueroa v. Blackburn, 208 F.3d 435, 440 (3rd Cir. 2000) (internal quotations omitted). Such immunity can only be overcome if the judge's actions are "nonjudicial in nature, or where such actions, while judicial in nature, are taken in the complete absence of all jurisdiction." Van Tassel, 659 F.Supp.2d at 695 (internal quotation omitted). Plaintiff's allegations concern actions taken by the Judicial Defendants while presiding over criminal and PCRA actions in the Erie County Court of Common Pleas, and each of the alleged actions - such as signing a criminal complaint and denying a PCRA motion - is a fundamental judicial act that falls squarely within the jurisdiction of a Pennsylvania common pleas or magisterial district judge. See, e.g., 42 Pa. Cons. Stat. § 931(a) ("the courts of common pleas shall have unlimited original jurisdiction of all actions and proceedings, including all actions and proceedings heretofore cognizable by law or usage in the courts of common pleas"); Figueroa v. Blackburn, 208 F.3d 435, 443 (3d Cir. 2000) (explaining that the act of ordering a person to prison is a "paradigm judicial act"); Muhammad v. Cappellini, 2013 WL 1249029, at *3 (M.D. Pa. Mar. 27, 2013) (judicial acts include issuing orders, making rulings, and conducting hearings). Accordingly, Plaintiff's claims against the Judicial Defendants in their individual capacities must also be dismissed.
6. Assorted constitutional claims
Finally, Plaintiff's complaint invokes his rights to due process, equal protection, effective assistance of counsel, and to be free from cruel and unusual punishment. None of these claims appears to be viable. A plaintiff cannot obtain monetary damages based on receiving ineffective assistance of counsel. Selby v. State, 2020 WL 1673027 at *2 (D.N.J. Apr. 3, 2020) ("Although Plaintiff filed his claims as a prisoner civil rights case, his claims for ineffective assistance of counsel and lack of a fair hearing seek to challenge his conviction and sentence" and, therefore, should have been submitted in a § 2254 petition). Plaintiff has made no attempt to plead any of the elements of an equal protection, cruel and unusual punishment, or due process claim. Moreover, to the extent that such claims challenge his arrest or conviction, they are either time-barred, or precluded by Heck v. Humphrey, as discussed above. All such claims must be dismissed.
7. Summary
In short, each of Plaintiff's claims is subject to dismissal for failure to state a claim. Specifically: (1) Plaintiff has failed to allege the personal involvement of Daneri, Connelly, Kennedy, and Judge Trucilla; (2) his false arrest and false imprisonment claims against Lorah and Bogart are time-barred; (3) his malicious prosecution and abuse of process claims are barred by Heck v. Humphrey; (4) Sandmeyer and Merski are immune to liability because they are not state actors; and (5) Judge Trucilla, Judge Mead, and Magisterial District Judge Robie are entitled to Eleventh Amendment and judicial immunity. Plaintiff's complaint should be dismissed, and this action should be terminated.
III. Conclusion
For the foregoing reasons, it is respectfully recommended that this action be dismissed as legally frivolous and/or for failure to state a claim in accordance with 28 U.S.C. § 1915(e). Considering the many deficiencies identified in this order, including the statute of limitations, Heck v. Humphrey, and absolute immunity, it is further recommended that leave to amend be denied as futile. However, said dismissal should be without prejudice in two respects: (1) Plaintiff is not precluded from challenging his conviction in a timely-filed habeas corpus petition after his state PCRA proceedings have terminated; and (2) Plaintiff may file a renewed § 1983 seeking damages for malicious prosecution or abuse of process if his criminal conviction is later overturned. All other claims should be dismissed with prejudice.
IV. Notice
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, the parties must seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the Objections shall have fourteen (14) days from the date of service of the Objections to respond thereto. See Fed.R.Civ.P. 72(b)(2). Extensions of time will not be granted. Failure to file timely objections may constitute a waiver of appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).
/s/_________
RICHARD A. LANZILLO
United States Magistrate Judge Dated: May 11, 2020