Opinion
CIVIL ACTION NO. 4:19-CV-01548
08-17-2020
CHRISTOPHER J. FEDDER, Plaintiff, v. COMMONWEALTH OF PENNSYLVANIA and SNYDER COUNTY, Defendants.
(BRANN, J.)
() REPORT AND RECOMMENDATION
Pro se plaintiff Christopher J. Fedder commenced the above-captioned civil rights action on September 9, 2019, seeking a new trial and related costs, fines, and fees for charges for which he was tried and found guilty in 2015 in the Snyder County Court of Common Pleas. (Doc. 1). Defendants are the "Commonwealth of Pennsylvania (Snyder County)" and Snyder County, Pennsylvania (collectively, "Defendants"). (Doc. 1). Fedder alleges that Defendants violated his due process rights, presented perjured evidence at a criminal trial against him, engaged in prosecutorial misconduct, and suborned perjury, and he also alleges that he was deprived of effective assistance of counsel. (Doc. 1, at 3).
Fedder's Civil Cover Sheet lists only one defendant, the "Commonwealth of Pennsylvania," beneath which Fedder indicated Snyder as the "County of Residence of the First Listed Defendant." (Doc. 1-2, at 1). In his complaint, under defendant, Fedder wrote, "Commonwealth of Pennsylvania (Snyder County)." (Doc. 1, at 1). Fedder's subsequent submissions to the Court all indicate that he brings claims against a single named defendant, Commonwealth of Pennsylvania. (Doc. 1-2, at 1; Doc. 7, at 1; Doc. 15, at 1; Doc. 19, at 1). As indicated infra, it is not entirely clear against whom Fedder seeks relief, but the claims he is asserting are themselves barred regardless of whether he is asserting them against a specific defendant or group of defendants.
In March 2020, the Commonwealth moved to dismiss the claims against it on several grounds and submitted a brief in support of its motion. (Doc. 12; Doc. 13). Fedder filed a brief in opposition (Doc. 19), and the motion to dismiss is now ripe for review.
For the following reasons, it is respectfully recommended that the Commonwealth's motion to dismiss (Doc. 12) be GRANTED; that Fedder's malicious prosecution claim be DISMISSED WITHOUT PREJUDICE; that all other claims be DISMISSED WITH PREJUDICE; that the Court sua sponte DISMISS any independently asserted claims against Snyder County for lack of subject matter jurisdiction, with prejudice as to all but Fedder's malicious prosecution claim; and that the Clerk of Court be directed to CLOSE THIS CASE. I. BACKGROUND AND PROCEDURAL HISTORY
In his complaint, which is styled as "Action in Mandamus," Fedder alleges claims arising from his July 2014 arrest and March 2015 bench trial that resulted in his June 2015 conviction for driving under influence of alcohol or controlled substance under 75 Pa.C.S.A. § 3802(a)(1), and for failing to activate his hazard lights, 75 Pa.C.S.A. § 4305(a). (Doc. 1, at 1, 3-4; Doc. 1-1, at 2-3; Doc. 13-1, at 5); see Commonwealth v. Christopher Jacob Fedder, Docket No. CP-55-CR-0000285-2014 (Snyder Cnty. C.C.P.). Sentenced to an indeterminate term of eleven days to six months' imprisonment with six months' probation and other conditions, Fedder appealed, and the Pennsylvania Superior Court affirmed the conviction. (Doc. 1-1, at 2-3; Doc. 13-1, at 5); Commonwealth v. Fedder, No. 1233 MDA 2015, 2016 WL 1250206, at *1 (Pa. Super. Ct. Mar. 30, 2016) (brackets in original). Fedder petitioned for allowance of appeal, which the Pennsylvania Supreme Court denied on August 30, 2016. Commonwealth v. Fedder, 207 A.3d 812 (Pa. 2016).
The Court takes judicial notice of the underlying state court records relating to his criminal case. See Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007). The Commonwealth attached a copy of the docket pertaining to Fedder's criminal case. (See Doc. 13-1).
A. Trooper Whitford's Affidavit of Probable Cause
Following Fedder's arrest, State Trooper Kyle Whitford drafted an incident report, which Fedder refers to as an affidavit of probable cause (the "Affidavit"), averring that around 1 a.m. on July 20, 2014, Whitford and Corporal George Ritchey responded to the report of a vehicle driving north on a southbound lane of a bypass. (Doc. 1-1, at 6). At some point, Whitford observed a blue BMW facing south on a southbound lane with its reverse lights on. (Doc. 1-1, at 6). Whitford activated his vehicle's emergency lights, and pulled up behind the BMW. (Doc. 1-1, at 6). Approaching the BMW on foot, Whitford observed Fedder in the driver's seat with the keys in the ignition and the vehicle running. (Doc. 1-1, at 6). Fedder had barbeque sauce "all over his face, hands, shirt and vehicle," his eyes were bloodshot and glassy, he denied having consumed any alcohol, and he refused a preliminary breath test (PBT). (Doc. 1-1, at 6).
"A police officer, having reasonable suspicion to believe a person is driving or in actual physical control of the movement of a motor vehicle while under the influence of alcohol, may require that person prior to arrest to submit to a preliminary breath test on a device approved by the Department of Health for this purpose. The sole purpose of this preliminary breath test is to assist the officer in determining whether or not the person should be placed under arrest. The preliminary breath test shall be in addition to any other requirements of this title." 75 Pa.C.S.A. § 1547(k).
Whitford then asked Fedder to exit the BMW so that he could conduct a standard field sobriety tests (SFSTs). (Doc. 1-1, at 6). At that point, Whitford detected an odor of alcohol emanating from Fedder, and Cpl. Ritchey observed two full beer cans between the driver's seat and the center console. (Doc. 1-1, at 6). After Fedder failed SFSTs in various respects, he was taken into custody under suspicion of having driven while under the influence of alcohol (DUI). (Doc. 1-1, at 6). Back at Pennsylvania State Police Selinsgrove, Fedder was "very uncooperative," told Whitford that he had no one to call and refused to stay at a hotel unless Whitford paid, and refused to submit to a PBT. (Doc. 1-1, at 6). Later, two vials of blood were drawn from Fedder's arm. (Doc. 1-1, at 6). Believing Fedder was a potential danger to himself and others, Whitford arraigned him on the DUI charges and committed to Snyder County Prison. (Doc. 1-1, at 6). Lab reports indicated Fedder's blood alcohol level was .196 at the time of the blood draws. (Doc. 1-1, at 6).
B. Suppression Hearing Testimony
Whitford testified during a January 2015 suppression hearing. (Doc. 1, at 1). The Pennsylvania Superior Court summarized the suppression judge's factual findings as follows:
The police had been dispatched to Routes 11-15 for a report of a vehicle traveling northbound in the southbound lanes. While searching for this vehicle, the police observed [Fedder's] vehicle stopped on the shoulder in reverse gear with its backup lights illuminated, the engine running, and hazard lights not on. The police pulled in behind [Fedder's] vehicle and activated their emergency lights. State Trooper Whitford testified that he activated his emergency lights for his safety. During this initial contact, [Fedder] did provide the trooper with his Delaware driver's license. During cross-examination, Trooper Whitford testified that his initial stop behind [Fedder's] vehicle related to the facts that [Fedder] did not have his hazard lights activated, the dispatch concerning a car traveling north in a southbound lane, and an inquiry to determine if [Fedder] was injured or in need of help. This limited inquiry did not elevate what began as a mere encounter to an investigatory detention. Later, the trooper observed bloodshot glassy eyes. He asked [Fedder] to submit to a PBT [], which [Fedder] refused. Later, [Fedder] submitted to a blood test which indicated a .196 blood alcohol level.
Fedder, 2016 WL 1250206, at *1 (brackets in original) (quoting trial court opinion).
The Superior Court further "note[d] that Trooper Whitford indicated that upon first encountering [Fedder] in his car, [Fedder] was covered in barbecue sauce from chicken wings. Therefore, he stated that he could not, at least initially, smell any alcohol, only 'an abundance of barbecue sauce.'" Fedder, 2016 WL 1250206, at *1 (quoting record). Whitford also testified that "once [Fedder] exited the vehicle, [he] began 'to observe the odor of alcohol coming from [Fedder],'" and that, "when he was securing the vehicle, [he] also saw two full unopened cans of beer next to the driver's seat." Fedder, 2016 WL 1250206, at *1 (quoting record).
Ultimately, the Superior Court affirmed the suppression court's denial of Fedder's pretrial motions based the following holdings: (1) Whitford was justified in approaching the BMW to check on Fedder's welfare, which constituted a "mere encounter not requiring reasonable suspicion"; (2) given Fedder's admission that he had been driving, Whitford's observation that Fedder appeared to have glassy eyes, had a disheveled appearance, and was covered with barbeque sauce, and the further observation of the strong smell of alcohol and full containers of alcohol, the troopers had ample evidence to support the belief that they had probable cause to arrest Fedder for DUI. Fedder, 2016 WL 1250206, at *5.
A transcript of the minutes of the suppression hearing are attached as an exhibit to Fedder's complaint. (Doc. 1-1, at 9-38). Fedder circled excerpts from the transcript in support of his claim. The excerpts are set forth below with additional language for context:
Q Now, in the -- I guess it would be the third paragraph [of your Affidavit], you can follow along and tell me if this is correct. But partway down, it says, At this time, I observed Fedder to have red shot -- red, bloodshot, glassy eyes. Also at this time, I observed two full cans of beer next to the driver's seat.
A That's what it says, yes.
Q All right. And that's not actually how that evidence was secured, correct?
A That was a mistake. It was actually Corporal Richy [sic] that observed the full two cans.
Q And it also says that at this time, when you're making the observations of the bloodshot glassy eyes. That would also be a mistake, because it wasn't before he gets out of the vehicle. It's not until the end of your investigation that not you, but Corporal Richy [sic] identifies those beer
cans, correct?
A That's correct.
(Doc. 1-1, at 34-35 (cross examination of Trooper Whitford)).
Q Did you see the cans of beer when you secured the vehicle [after Fedder's arrest]?
A Yes, I did.
Q So in terms of the Affidavit, the timing is off. But it is accurate that you observed two full cans of beer next to the driver's seat, right?
A That's correct.
Q When you first approached the vehicle and you saw [Fedder] sitting in the driver's seat and the vehicle was still on at this point?
A Yes.
Q He had a nice container of wings sitting next to him on the front seat?
A Yes.
Q Did he have anything else on the front seat?
A There was a bag of gummy bears, some other items which I'm not sure what they were.
Q At that point, you testified you could not detect an odor of alcohol. Did you detect an odor of barbecue sauce?
A Very much so, yes.
(Doc. 1-1, at 35-36 (redirect examination of Trooper Whitford)).
C. Fedder's Allegations
The allegations in Fedder's complaint, which the Court must presume are true for purposes of a motion to dismiss, begin with Whitford's Affidavit and his contradictory testimony. In his Affidavit, Whitford reported that he removed Fedder from the vehicle after observing the two unopened cans of beer, which he testified was not true because it was Cpl. Ritchey who first observed the cans. (Doc. 1, at 3-4). Dashcam footage played at the suppression hearing confirms that Fedder did not observe the presence alcohol until 17 minutes after the troopers detained Fedder, and it was only then that the troopers claimed to smell alcohol emanating from Fedder. (Doc. 1, at 4). It is not illegal for a non-minor such as Fedder to possess unopened cans of beer, and the only infraction he was claimed to have committed was the failure to activate emergency lights. (Doc. 1, at 4). Whitford further testified that he could not smell an odor of alcohol and only smelled barbecue sauce when he first asked Fedder to exit the BMW. (Doc. 1, at 4). Not until the troopers found unopened cans of beer in the BMW did they claim to have detected the smell of alcohol. (Doc. 1, at 4).
The prosecution had access to the Affidavit and dashcam video and had actual and reasonable knowledge that the Affidavit was perjured. (Doc. 1, at 5). Nevertheless, the prosecutor permitted the perjured Affidavit to be used as probable cause for arresting, charging, detaining, convicting, and incarcerating Fedder. (Doc. 1, at 5). There was no other evidence that would give rise to probable cause; the troopers never informed Fedder that he broke any laws, which is shown in the dashcam footage; Fedder indicated that he was okay and not in distress, despite that Whitford had testified that he initially stopped to make sure Fedder was not in distress; and Fedder's vehicle remained parked on the side of the road with lights illuminated. (Doc. 1, at 5).
Fedder was told he was not entitled to a jury trial because the charges were considered a "first offense" despite the heavy consequences, including fines, probation, incarceration, and loss of his license. (Doc. 1, at 6). The prosecution did call any other witnesses or adduce further testimony to convict Fedder. (Doc. 1, at 6). Thus, all the evidence obtained after Fedder's wrongful arrest should have been suppressed. (Doc. 1, at 6). Given the dashcam footage and Whitford's testimony, it is clear that the Pennsylvania State Police intentionally perjured the Affidavit and used it to prosecute Fedder. (Doc. 1, at 6). The knowing use of perjured testimony should result in an automatic reversal of Fedder's conviction. (Doc. 1, at 6). Whitford should not have been permitted to testify, especially after Fedder's trial attorney made the judge and prosecutors aware that Whitford's testimony contradicted his signed and sworn Affidavit, "yet the court still allowed the testimony of [] Whitford to convict [] Fedder[.]" (Doc. 1, at 7). If the prosecutor exercised due diligence, he would have discovered the "falsity of [] Whitford's and [] Ritchey's [Affidavit] before trial." (Doc. 1, at 7-8).
On appeal to the Pennsylvania Superior Court, the prosecutor used the same perjured Affidavit and Whitford's contradictory testimony, all to "make [Fedder] look guilty by taking facts out of the context of their actual occurrence and grouping them together so that it seemed that [the troopers] had Probable Cause to detain [] Fedder when in actuality they did not." (Doc. 1, at 8).
Fedder's appellate counsel did not object or make new motions to have the case dismissed "due to the unreliability of the [Commonwealth's] sole witness who had just perjured himself twice under oath by contradiction the entire [Affidavit] . . . ." (Doc. 1, at 9). While Fedder's trial counsel had proven that the Affidavit was perjured, appellate counsel, "[i]n essence, . . . passively pointed out the contradictory testimony of [] Whitford at trial to the judge and prosecutor and then let the tainted Probable Cause issue rest." (Doc. 1, at 9-10). Appellate counsel also failed to "mention that [] Whitford and the dashcam footage . . . directly contradicted the Probable Cause statement" in the Affidavit. (Doc. 1, at 10). Fedder had informed appellate counsel that he wished to actively participate in his defense, but appellate counsel instead unilaterally filed Fedder's appeal and emailed Fedder a copy via email. (Doc. 1, at 10). Fedder was thus denied the right to present a defense. (Doc. 1, at 10).
D. Relevant Procedural History
After Fedder commenced this action, summons was issued as to the Commonwealth of Pennsylvania, and the summons was electronically provided to Fedder for service upon the Commonwealth. (Doc. 2). Several months later, the undersigned ordered Fedder to show cause why service had not yet been effectuated upon the Commonwealth. (Doc. 3). Fedder responded with a motion seeking reissuance of the summons, which motion the undersigned granted, and summons was reissued and sent to Fedder via USPS mail for service upon the Commonwealth. (Doc. 5; Doc. 6). On March 11, 2020, Fedder filed proof of service of the summons, which pertained only to the Commonwealth, indicating that he had served copies of the summons on various "defendants" who are not named as defendants in his complaint: Whitford, Ritchey, Judge Michael Hudock, District Attorney Michael Piecuch, Attorney Shawn Curry. (Doc. 9, at 1). Two weeks later, the Commonwealth filed an executed waiver of service form. (Doc. 9, at 1); see Fed. R. Civ. P. 4(d) (pertaining to waiver of service of summons). In May 2020, summons was issued as to Snyder County and provided to Fedder via USPS Mail. (Doc. 17). Fedder has not filed proof of service upon Snyder County as of the date of this Report and Recommendation.
Meanwhile, in February 2020, Fedder filed a supplement indicating that in bringing this action, he seeks costs expended and incurred including attorney fees, bail fees, filing fees, interest for all costs he incurred, probation fees, counseling fees, loss of rental income and costs of professional repairs that the plaintiff was unable to complete personally due to loss of his driver's license, and costs to have his record expunged. (Doc. 7, at 1). He also seeks punitive damages for emotional distress due to jail time served, nearly three years of probation served, and loss of license for nearly three years. (Doc. 7, at 2). He reiterates that he seeks a new trial before a federal court or that the "original charges start anew." (Doc. 7, at 2). If he cannot obtain a new trial, he seeks permission to file separate civil suits asserting Fourth Amendment claims against Whitford, Ritchey, Judge Hudock, DA Michael Piecuch, and Attorney Curry. (Doc. 7, at 2). II. LEGAL STANDARD
Rule 12(b)(6) authorizes a defendant to move to dismiss for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). The United States Court of Appeals for the Third Circuit has noted the evolving standards governing pleading practice in federal court, stating that:
Standards of pleading have been in the forefront of jurisprudence in recent years. Beginning with the Supreme Court's opinion in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), continuing with our opinion in Phillips [v. County of Allegheny, 515 F.3d 224 (3d Cir. 2008)] and culminating recently with the Supreme Court's decision in Ashcroft v. Iqbal, 556 U.S. 662 (2009), pleading standards have seemingly shifted from simple notice pleading to a more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss.
Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).
In considering whether a complaint fails to state a claim upon which relief may be granted, the court must accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom are to be construed in the light most favorable to the plaintiff. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). However, a court "need not credit a complaint's 'bald assertions' or 'legal conclusions' when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Additionally, a court need not assume that a plaintiff can prove facts that the plaintiff has not alleged. Associated Gen. Contractors of Cal. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). As the Supreme Court of the United States held in Twombly, in order to state a valid cause of action a plaintiff must provide some factual grounds for relief which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. "Factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555.
In keeping with the principles of Twombly, the Supreme Court has underscored that a trial court must assess whether the complaint states facts upon which relief can be granted when ruling on a motion to dismiss. In Iqbal, the Supreme Court held that, when considering a motion to dismiss, a court should "begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Iqbal, 556 U.S. at 679. According to the Supreme Court, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678. In deciding a Rule 12(b)(6) motion, a court may consider the facts alleged on the face of the complaint, as well as "documents incorporated into the complaint by reference, and matters of which a court may take judicial notice." Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
Additionally, a document filed pro se is "to be liberally construed." Estelle v. Gamble, 429 U.S. 97, 106 (1976). A pro se complaint, "however inartfully pleaded," must be held to "less stringent standards than formal pleadings drafted by lawyers" and can only be dismissed for failure to state a claim if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Haines v. Kerner, 404 U.S. 519, 520- 21 (1972). Nonetheless, every complaint, including that filed by pro se litigant, is subject to the pleading requirements as articulated in Rule 8(a) of the Federal Rules of Civil Procedure, which requires a "showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (internal quotation marks omitted). III. DISCUSSION
Although not specifically alleged by Fedder as a basis for jurisdiction, when liberally construed, he appears to assert a number of constitutional claims against Defendants under 42 U.S.C. § 1983 for violations of his Fourth, Fifth, and Fourteenth Amendment rights under the United States Constitution.
The Court could construe Fedder's complaint as it is styled, i.e., a petition for a writ of mandamus, or as a petition for a writ of habeas corpus, but in either case, the Court would be without authority to grant the relief he seeks. On the one hand, if the Court were to construe Fedder's complaint as a petition for a writ of mandamus seeking a new trial, the Court would lack authority to grant such relief. Gardner v. Pennsylvania, No. 20-CV-00214, 2020 WL 2947381, at *2 (W.D. Pa. Mar. 24, 2020) (finding no authority for a district court to issue a writ of mandamus "to, inter alia, the Justices of the Pennsylvania Supreme Court, to ultimately require that Court to order a new criminal trial"), report and recommendation adopted, No. 20-CV-00214, 2020 WL 2933365 (W.D. Pa. June 3, 2020). On the other hand, if the Court were to construe his complaint as a petition for a writ of habeas corpus, the Court would be required to dismiss his petition for failure to file it within one year of final judgement, i.e., no later than August 2016, and the petition would be moot because Fedder is no longer confined, paroled, or on probation pursuant to his judgment of sentence. See Lane v. Williams, 455 U.S. 624, 631 (1982). ("[A] petition for habeas corpus relief generally becomes moot when a prisoner is released from custody before the court has addressed the merits of the petition."); see also Lentz v. Cty. of Cumberland, No. CIV.3:CV-05-1587, 2007 WL 1300740, at *1 (M.D. Pa. May 2, 2007) (finding habeas petition moot where petitioner was not on parole and had served his term, which mean that he had "received the habeas relief requested in the instant action").
A prisoner generally must file a federal habeas corpus petition within one year of the date his conviction became final. See 28 U.S.C. § 2244(d)(1)(A). Fedder's conviction became final in August 2016, which means he had until September 2017 to file a habeas petition. See, e.g., Commonwealth v. Mosley, No. 1595 EDA 2017, 2018 WL 617923, at *1 (Pa. Super. Ct. Jan. 30, 2018); see Pa. R. Crim. P. 720(2).
Thus, to provide Fedder with the most generous reading of his complaint given his pro se status, the undersigned construes the complaint to assert § 1983 claims for due process violations, false arrest and imprisonment, malicious prosecution, malicious abuse of process, prosecutorial misconduct, and ineffective assistance of counsel. As indicated infra, the undersigned will also construe the complaint to assert similar state law claims.
Construing the complaint as such, the Commonwealth raises three arguments in support of its motion to dismiss Fedder's § 1983 claims: (1) the Rooker-Feldman abstention doctrine deprives the Court of jurisdiction to review Fedder's claims; (2) the two-year statute of limitations for bringing § 1983 claims expired before Fedder filed this action; and (3) Fedder is barred, under Heck v. Humphrey, 512 U.S. 477 (1994), from pursuing federal claims collaterally attacking the validity of his still-standing state court conviction and sentence. (Doc. 13, at 3).
A. Rooker-Feldman
Jurisdiction to review a state court's decision rests in the Pennsylvania appellate courts, and federal district courts lack subject matter jurisdiction over challenges that are the functional equivalent of an appeal of a state court judgment. Marran v. Marran, 376 F.3d 143, 149 (3d Cir.2004). Thus, the Rooker-Feldman abstention doctrine "bars federal district courts from exercising appellate jurisdiction over state court actions." Nat'l R.R. Passenger Corp. v. Pa. Pub. Util. Comm'n, 342 F.3d 242, 256 (3d Cir. 2003); see District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923). The jurisdictional bar posed by Rooker-Feldman arises where "four requirements are met: (1) the federal plaintiff lost in state court, (2) the plaintiff complains of injuries caused by the state-court judgment, (3) that judgment issued before the federal suit was filed, and (4) the plaintiff invites the district court to review and reject the state-court judgment." In re Phila. Entm't & Dev. Partners, 879 F.3d 492, 500 (3d Cir. 2018); see Great Western Mining & Mineral Co. v. Fox Rothschild, LLP, 615 F.3d 159, 166 (3d Cir.2010).
Here, Fedder lost in state court, he complains of injuries caused by the state court judgment, the judgment issued before he filed federal suit, and he is asking the Court to review and reject his state court judgment. In "order to grant [Fedder] the relief sought, the [Court] must [necessarily] determine that the state court judgment was erroneously entered or must take action that would render that judgment ineffectual." In re Madera, 586 F.3d 228, 232 (3d Cir.2009) (citing FOCUS v. Allegheny County Court of Common Pleas, 75 F.3d 834, 840 (3d Cir.1996)). Indeed, that is precisely what Fedder is asking the Court to do. Accordingly, the Court is deprived of subject matter jurisdiction as to all his claims. See Parkview Assocs. Partnership v. City of Lebanon, 225 F.3d 321, 324 (3d Cir. 2000) ("The Rooker-Feldman doctrine is based on the statutory foundation of 28 U.S.C. § 1257 and the well-settled understanding that the Supreme Court of the United States, and not the lower federal courts, has jurisdiction to review a state court decision.").
To his credit, as a pro se litigant, Fedder has unearthed and cited case law standing for the proposition that the Rooker-Feldman doctrine does not deprive the Court of jurisdiction to hear fraud claims, i.e., Fedder's claims of perjury, when the fraud itself causes an injury independent of the state court judgment. See, e.g., Great W. Mining & Mineral Co., 615 F.3d at 167 (noting that in McCormick v. Braverman, 451 F.3d 382, 384 (6th Cir. 2006), the court held that Rooker-Feldman did not bar the claim that "defendants committed fraud and misrepresentation in [] divorce proceedings")). However, as courts within the Third Circuit have noted, the not every Court of Appeals has adopted the fraud exception, and Third Circuit Court of Appeals has "not has definitively weighed in on this debate . . . ." Campbell, 2017 WL 3142118, at *4 (collecting cases) ("When [the Third Circuit] has applied the exception, it has done so in non-precedential opinions, and inconsistently."); see also Kemp v. Select Portfolio, Inc., No. 18-CV-17215, 2019 WL 3369692, at *4 (D.N.J. July 26, 2019) ("[T]he fraud exception has not yet been explicitly recognized within the Third Circuit.").
The "Second, Fifth, Seventh, Eighth, Tenth, and Eleventh Circuits have rejected the exception, as have district courts from the Fourth Circuit." Campbell v. Tabas, No. 16-CV-06513, 2017 WL 3142118, at *3 (E.D. Pa. July 25, 2017) (footnotes omitted).
Assuming the Third Circuit has, in fact, adopted a fraud exception to the Rooker-Feldman abstention doctrine, Fedder's claims do not fall within the exception. Fedder presented the arguments underlying his allegations of perjury at the state court level. At the trial level, according to Fedder, his counsel was able to prove that Whitford perjured the Affidavit. (Doc. 1, at 7). Indeed, Fedder alleges that despite his trial attorney having alerted the state court and prosecutor to the perjured Affidavit, it was the court that "still allowed the testimony of [] Whitford to convict [] Fedder[.]" (Doc. 1, at 7). The injury at issue is therefore one caused by the court proceedings, conviction, and judgment of sentence. On appeal to the Pennsylvania Superior Court, Fedder again argued that the trial court erred by denying his motion to suppress based on inconsistencies revealed in Whitford's testimony. Although Fedder argues that his appellate counsel was ineffective for not expressly raising the issue of fraud or perjury, counsel did raise the very inconsistencies and contradictory statements about which Fedder now complains. See El-Hewie v. Governor of State of New Jersey, 396 F. App'x 847, 849 (3d Cir. 2010) ("[A]ny claims mirroring those adjudicated in the prior state . . . proceedings [a]re barred by the Rooker-Feldman doctrine . . . ."); see also Davis v. Fein Such Kahn & Shepard PC, No. 18-CV-08560, 2019 WL 1789471, at *6 (D.N.J. Apr. 24, 2019) ("[C]ourts are reluctant to recognize the fraud exception when a plaintiff already raised the fraud argument in the state court action and the state court rejected it.").
See, e.g., Fedder, 2016 WL 1250206, at *2 ("He particularly points to Trooper Whitford's testimony, where [Whitford] admits that he did not initially smell alcohol emanating from Appellant, to support his contention that the trooper did not have sufficient reasonable suspicion to support an investigative detention."); see Brief for Appellant, No. 1233 MDA 2015, Commonwealth v. Fedder, 2016 WL 4417784, at *5-6 (Pa. Super.) (arguing that "[w]hile Trooper Whitford initially testified that he illuminated the emergency lights 'for officer safety,' he later testified he made contact with the vehicle because he was investigating the anonymous call, there was a Motor Vehicle Code violation, and he was conducting a welfare check"); 2016 WL 4417784, at *8 ("[W]hile Trooper Whitford's reports and direct testimony indicate that he observed an odor of alcohol when Fedder first stepped out of the vehicle to perform the SFSTs, he acknowledged on cross examination that there was no reference to an odor of alcohol made by either trooper as depicted in the [motor vehicle report] until after the SFSTs were completed and there was at least a second refusal of the PBT."); 2016 WL 4417784, at *8 ("Trooper Whitford avers that he personally observed two [] full cans of beer next to the driver's seat before requesting the first PBT and ordering him out of the vehicle. Meanwhile, Trooper Whitford's Pennsylvania State Police [] Incident Report [i.e., the "Affidavit"] makes no reference to such personal observation. Instead, Trooper Whitford's PSP Incident Report alleges that Corporal Ritchey observed the two [] full cans of beer after Fedder exited the vehicle and prior to the SFSTs. However, on cross examination and after the MVR was admitted into evidence at the Suppression Hearing, Trooper Whitford admitted that Corporal Ritchey had not observed the full, unopened cans of beer until after conducting the SFSTs and making another unsuccessful attempt to secure a PBT.").
Given that the state court was presented with precise proof of perjury upon which Fedder now relies, if this Court were to hold that the state court should have granted Fedder's suppression motions based on the same information, then the Court would be determining that the state court was wrong. Rooker-Feldman bars the Court from doing so.
That Rooker-Feldman bars Fedder's claims is supported by case law from other circuits indicating that the fraud exception to the doctrine only applies where the circumstances suggest "extrinsic fraud," in contrast with "intrinsic fraud." See, e.g., Castro v. Lewis, 777 F. App'x 401, 405 n.3 (11th Cir. 2019) ("[W]e know of no court to have ever recognized an intrinsic fraud exception to the Rooker-Feldman doctrine."), cert. denied, 140 S. Ct. 1124, 206 L. Ed. 2d 189 (2020). Intrinsic fraud "applies to fraudulent conduct that arises within a proceeding and pertains to the issues in the case that have been tried or could have been tried." Castro, 777 F. App'x at 405 (internal quotation marks omitted). The Pennsylvania Supreme Court long ago explained the difference between the two types of fraud:
Where the alleged perjury relates to a question upon which there was a conflict, and it was necessary for the court to determine the truth or falsity of the testimony, the fraud is intrinsic, and is concluded by the judgment, unless there be a showing that the jurisdiction of the court has been imposed upon, or that by some fraudulent act of the prevailing party the other has been deprived of an opportunity for a fair trial.
McEvoy v. Quaker City Cab Co., 110 A. 366, 368 (Pa. 1920)
Stated differently, extrinsic fraud "prevents a party from having an opportunity to present his claim or defense in court," whereas intrinsic fraud "goes to the very heart of the issues contested in the state court action." Dixon v. State Bar of California, 32 F. App'x 355, 356-57 (9th Cir. 2002) (internal quotation marks omitted) (quoting Green v. Ancora-Citronelle, 577 F.2d 1380, 1384 (9th Cir.1978)). Thus, where a plaintiff alleges "the use of fabricated evidence" and "the wrongful exclusion of supposedly exculpatory evidence," he is alleging intrinsic fraud not exempt from the Rooker-Feldman bar to jurisdiction. Dixon, 32 F. App'x at 356-57; see also Muncrief v. Mobil Oil Co., 421 F.2d 801, 804 n.2 (10th Cir. 1970) ("Fraud is regarded as extrinsic or collateral where it prevents a party from having a trial or from presenting his cause of action or his defense, or induces him to withdraw a defense, or operates upon matters pertaining not to the judgment itself, but to the manner in which it was procured. Where, however, the judgment was founded on a fraudulent instrument or perjured evidence, or the fraudulent acts pertained to an issue involved in the original action and litigated therein, the fraud is regarded as intrinsic."). So too here does Rooker-Feldman deprive the Court of jurisdiction over Fedder's claims of constitutional violations stemming from claims of a perjured document that was introduced at trial and subject to cross examination.
B. Statute of Limitations
Claims brought pursuant to § 1983 are "governed by the statute of limitations that applies to personal injury tort claims in the state in which such a claim arises." Kach v. Hose, 589 F.3d 626, 639 (3d Cir. 2009). In Pennsylvania, a two-year statute of limitations governs personal injury claims, including claims for false arrest and imprisonment, malicious prosecution, malicious abuse of process, ineffective assistance of counsel, wrongful conviction and sentence, and Fourth Amendment and due process violations. See 42 Pa.C.S.A. § 5524(1) (two-year limitations period applies to "false imprisonment, false arrest, malicious prosecution or malicious abuse of process"); § 5524(7) (two-year limitations period applies to "[a]ny other action or proceeding to recover damages for injury to person or property which is founded on negligent, intentional, or otherwise tortious conduct"); see also, e.g., Philadelphia, Law Dep't, 767 F. App'x 262, 264 (3d Cir. 2019); Kehres v. Pennsylvania, 262 F. App'x 466, 469 (3d Cir. 2008); Nicholas v. Heffner, 228 F. App'x 139, 141 (3d Cir. 2007) ("Nicholas's Fourth Amendment claim accrued when he appeared before a magistrate and was bound over for trial or arraigned on charges."); Petaccio v. Davis, 76 F. App'x 442, 444 (3d Cir. 2003).
In his brief in opposition, Fedder submits that his claims are subject, not to a two-year statute of limitations, but to the five-year statute of limitations that governs the criminal offenses of perjury, false swearing, and tampering with public records or information. (Doc. 19, at 1 (citing 18 Pa.C.S.A. §§ 4902, 4903, 4911)); see 42 Pa.C.S.A. § 5552(b)(1) (providing for five-year statute of limitations for "[s]ection 4902 (relating to perjury) through section 4912 (relating to impersonating a public servant)" of Title 18 of the Pennsylvania Consolidated Statutes). That five-year limitations period, however, governs when "[a] prosecution for [certain] . . . offenses must be commenced" - in other words, it is a criminal statute. 42 Pa.C.S.A. § 5552(b) (emphasis added). Fedder's civil rights complaint is not a criminal prosecution subject to criminal statutes of limitations; rather, his claims of perjury are consistent with a state law claim of intentional tort and are therefore subject to the two-year limitations period applicable to § 1983 claims. See, e.g., Zia v. Wimmersberger, 544 F. Supp. 559, 562 (E.D. Pa. 1982) (holding claim for damages based, inter alia, on allegations perjury are most analogous to claims of negligence and intention tort and therefore subject to the two-year statute of limitations); see also Lynch v. Bensalem Twp., No. 94-CV-03331, 1995 WL 118459, at *1 (E.D. Pa. Mar. 20, 1995) (rejecting argument that six-year statute of limitations for civil fraud claims applied where "the three counts of [the plaintiff]'s original complaint all contain[ed] causes of action via 42 U.S.C. § 1983 [] for deprivations of [the plaintiff]'s constitutional rights").
He also references a federal criminal statute, 18 U.S.C. § 1623, but that statute "applies by its terms to false declarations made in federal, not state, courts," and it "is a criminal statute that does not expressly give rise to a private cause of action." Wagner v. Unemployment Comp. Bd. of Review, 550 F. App'x 99, 100 (3d Cir. 2014).
Applying the two-year limitations period here, the Court first notes that because Fedder's criminal proceedings did not end in his favor, his malicious prosecution claim has technically not yet accrued. Randall v. City of Philadelphia Law Dep't, 919 F.3d 196, 198 (3d Cir. 2019) ("[F]ederal law holds that a malicious-prosecution claim accrues when criminal proceedings end in the plaintiff's favor."). To "the extent [Fedder] seeks damages for malicious prosecution, he has no cause of action under 42 U.S.C. § 1983" unless and until "his conviction has been reversed, expunged, declared invalid, or called into question by a federal court's issuance of a writ of habeas corpus." See Nicholas v. Heffner, 228 F. App'x 139, 141 (3d Cir. 2007). As indicated infra, Fedder's still-standing conviction and sentence preclude him from raising a § 1983 malicious prosecution claim under Heck v. Humphrey, but because this claim has not accrued, the Court recommends that it be dismissed without prejudice. See Curry v. Yachera, 835 F.3d 373, 379 (3d Cir. 2016) (holding district court erred when it dismissed a malicious prosecution claim with prejudice, where the district court had determined that the plaintiff could "not prove a favorable termination of the criminal proceedings against him").
Nevertheless, as to all other claims of constitutional deprivations asserted by Fedder, the date on which his petition for allowance of appeal was denied - August 30, 2016 - marks the absolute latest possible date of accrual for those claims. Generally, a § 1983 "cause of action accrues, and the statute of limitations begins to run, when the plaintiff knew or should have known of the injury upon which its action is based." Frasier-Kane v. City of Philadelphia, 517 F. App'x 104, 106 (3d Cir. 2013). Fedder knew of all the alleged conduct underlying the bulk of his claims - e.g., due process, perjury, and unfair trial - no later than the hearing at which Whitford testified. All of the allegations upon which he now relies were known to him at the end of trial, at the latest, with the exception of his ineffective assistance of appellate counsel claim. As to that claim, however, Whitford knew of its existence no later than the denial of his appeals, if not sooner. See Nguyen v. Pennsylvania, 906 F.3d 271, 273 (3d Cir. 2018) ("[A] claim accrues when the last act needed to complete the tort occurs."). To the extent Fedder asserts unlawful search claims, accrual occurs "the moment of the search," and "[f]or a false arrest, [accrual occurs] . . . the moment when legal process justifies the detention or, absent legal process, the moment of release." Nguyen, 906 F.3d at 273; see also Collins, 767 F. App'x at 264 ("[T]he statute of limitations for a malicious prosecution cause of action begins to run when the criminal proceeding is terminated."). Such claims therefore accrued well before August 2016.
According to court records submitted as an exhibit to Fedder's complaint, he was immediately paroled upon sentencing on June 22, 2015, which means his term of parole would have expired, at the latest, six months later. (Doc. 1-1, at 2-3). His sentence also included a term of six months' probation. (Doc. 1-1, at 2, 5). Thus, it appears that Fedder completed the terms of parole and probation to which he was sentenced by no later than mid-2016. While in the addendum to his complaint, Fedder alleges he served nearly three years of probation, the records he provided indicate otherwise.
Assuming an August 30, 2016 accrual date (at the very latest), Fedder had until August 30, 2018, to file a § 1983 complaint in federal court but did not do so until over one year later, on September 9, 2019. (Doc. 1). Thus, because Fedder "has not sought to toll the limitations period[,] . . . his claim[s] [are] time-barred." See Nguyen, 906 F.3d at 273. Barred, that is, except for his malicious prosecution claim, which would accrue if and when Fedder's conviction and judgement sentence are invalidated. Therefore, the Court recommends dismissing the malicious prosecution claim without prejudice but further recommends that all other claims be dismissed with prejudice.
C. Heck v . Humphrey
Generally, the fact or duration of confinement following a conviction can only be challenged through a § 1983 action after it has already been "reversed, expunged, invalidated, or impugned by the grant of a writ of habeas corpus." Heck, 512 U.S. at 489. The purpose of this doctrine is to avoid "parallel litigation over the issues of probable cause and guilt," and to avoid "the possibility of the claimant succeeding in the tort action after having been convicted in the underlying criminal prosecution, in contravention of a strong judicial policy against the creation of two conflicting resolutions arising out of the same or identical transaction." Heck, 512 U.S. at 484.
Here, Heck "bars [Fedder]'s claims of malicious prosecution and denial of a right to a fair trial, as well as his [other] . . . claim[s] to the extent they rely on the invalidity of his conviction." See Munchinski v. Solomon, No. 06-CV-04093, 2007 WL 3121331, at *2 (3d Cir. Oct. 26, 2007); see also Holmes v. Dreyer, 431 F. App'x 69, 70-71 (3d Cir. 2011) (finding barred by Heck a "civil complaint concern[ing] [a plaintiff's] allegedly unfair criminal trial and appeal therefrom, which he assert[ed] violated his civil rights," including claims "regarding prosecutorial misconduct, malicious prosecution, and ineffective assistance of counsel . . ."). The bar extends to claims alleging, as here, constitutional violations "during [] criminal proceedings . . . due to [] alleged fraud and false testimony." Bucano v. Pennsylvania, No. 3:12-CV-01816, 2012 WL 6917785, at *5 (M.D. Pa. Dec. 27, 2012), report and recommendation adopted, No. 3:12-CV-1816, 2013 WL 247003 (M.D. Pa. Jan. 22, 2013).
Because Fedder challenges an initial seizure and search, he may be seeking to impose liability for false arrest or imprisonment, which, though not necessarily barred by Heck, are barred by Rooker-Feldman and the applicable statute of limitations. See Montgomery v. De Simone, 159 F.3d 120, 126 n.5 (3d Cir. 1998) (noting that "claims for false arrest and false imprisonment are not the type of claims contemplated by the Court in Heck which necessarily implicate the validity of a conviction or sentence"). IV. REMAINING CLAIMS
Having determined that the federal claims Fedder asserts are either barred for lack of jurisdiction under Rooker-Feldman, barred by the two-year statute of limitations, or barred under Heck, there are two categories of claims that remain: state law claims, and the claims asserted against Snyder County.
A. Potential State Law Claims
With due regard to Fedder's rights as a pro se litigant, the undersigned has construed his complaint to assert potential state law claims similar to those he has asserted based on federal law, e.g., malicious prosecution, prosecutorial misconduct, false arrest, and false imprisonment. However, his state law claims are subject to the same two-year statute of limitations and are therefore time-barred, with the exception of the malicious prosecution claim, which will not accrue unless and until Fedder's conviction is overturned in his favor. See 42 Pa.C.S.A. § 5524(1)-(2), (7). Fedder may also be pursuing a claim for intentional infliction of emotional distress, as the addendum to his complaint references "emotional distress." (Doc. 7, at 2). Any claim "for the intentional infliction of emotional distress," however, is similarly "governed by a two-year statute of limitations." Stovall v. Kallenbach, No. 1683 WDA 2018, 2019 WL 2808297, at *4 (Pa. Super. Ct. July 2, 2019).
To the extent one or more state law claims are not time-barred, the undersigned recommends that the Court decline to exercise supplemental jurisdiction over them. Where a district court has dismissed all claims over which it had original jurisdiction, it may decline to exercise supplemental jurisdiction over state law claims. 28 U.S.C. § 1367(c)(3). Whether a court will exercise supplemental jurisdiction is within its discretion. Kach v. Hose, 589 F.3d 626, 650 (3d Cir. 2009). That decision should be based on "the values of judicial economy, convenience, fairness, and comity . . . ." Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988). The Court finds nothing in the record to distinguish this case from the ordinary one as to any remaining state law claims, and thus the balance of factors "point toward declining to exercise jurisdiction over the remaining state law claims." See Cohill, 484 U.S. at 350 n.7.
B. Claims Against Snyder County
Construing Fedder's complaint liberally, he appears to assert claims against Snyder County, as a named defendant, in addition to the Commonwealth. He has not filed proof that he properly served Snyder County with a copy of the summons. It is not clear whether he ever intended to do so. The claims against the Commonwealth are the same as those asserted against Snyder County, and for all the same reasons, the Court lacks jurisdiction over the claims against Snyder County under Rooker-Feldman, the claims against Snyder County are time-barred (but for the malicious prosecution claim), and the claims against Snyder County are barred under Heck.
The undersigned therefore recommends that the claims against Snyder County be dismissed based on the Court's "inherent power to dismiss sua sponte a complaint which facially violates a bar to suit," particularly given the Rooker-Feldman jurisdictional bar. See Serrano-Gomez v. Houtzdale Correction Facility, 641 F. App'x 106, 107 (3d Cir. 2016) (finding no statutory basis for dismissing a claim based on exhaustion but affirming a pre-service dismissal of the complaint nonetheless); see also Dukes v. Coleman, No. CV 16-1085, 2016 WL 6638884, at *1 (W.D. Pa. Oct. 17, 2016) (noting that a "court always has the inherent power to sua sponte raise its own subject matter jurisdiction"), report and recommendation adopted, No. 16-CV-01085, 2016 WL 6626181 (W.D. Pa. Nov. 9, 2016).
The undersigned acknowledges that the Third Circuit Court of Appeals has held that dismissal before service of process is generally inappropriate. Lewis v. O'Donnell, 674 F. App'x 234, 236 (3d Cir. 2017) (citing Oatess v. Sobolevitch, 914 F.2d 428, 430 (3d Cir. 1990)). Here, however, while Fedder has not filed proof of service of summons as to Snyder County, the Commonwealth has been served and filed a motion to dismiss raising arguments that would apply equally to the claims against Snyder County, and Fedder filed a brief in response. "[T]here are times when a court may sua sponte raise the issue of the deficiency of a pleading under Rule 12(b)(6) provided that the litigant has the opportunity to address the issue either orally or in writing." Lewis, 674 F. App'x at 236 (internal quotation marks omitted) (quoting Roman v. Jeffes, 904 F.2d 192, 196 (3d Cir. 1990)). Accordingly, under the particular circumstances presented here, it appears that "the concerns underlying" the Third Circuit's "decision in Oatess—'interfere[nce] with the orderly process of the case[,]' 'bypass[ing] our tradition of adversarial proceedings[,]' and 'greater inefficiency' because 'if an appeal is taken the case shuttles between the district and appellate courts[,]'—are absent here." See Lewis, 674 F. App'x at 236 (brackets in original) (internal citation omitted) (quoting Oatess, 914 F.2d at 431). Also significant is the fact that in his Civil Cover Sheet, his February 2020 addendum to his complaint, his March 2020 request for a jury trial, and his May 2020 brief in opposition to the Commonwealth's motion, Fedder lists only one defendant: Commonwealth of Pennsylvania. (Doc. 1-2, at 1; Doc. 7, at 1; Doc. 15, at 1; Doc. 19, at 1). V. LEAVE TO AMEND
The Oatess court cited to Lewis v. State of N.Y., 547 F.2d 4, 6 (2d Cir. 1976), where the Second Circuit raised the concern that "[u]ntimely dismissal may prove wasteful of the court's limited resources rather than expeditious, for it often leads to a shuttling of the lawsuit between the district and appellate courts." Lewis, 547 F.2d at 6. In Lewis, however, the lower court judge had dismissed the complaint "before any adverse party was joined in the litigation and rested solely on the face of [the] complaint." Lewis, 547 F.2d at 6. Therefore, no arguments had been raised in support of dismissal. In the instant matter, in contrast, Fedder appears to have brought his claims against one named defendant, the Commonwealth, which has raised arguments in a motion to dismiss that apply with equal force as to any claims against Snyder County.
The Court recognizes that pro se plaintiffs often should be afforded an opportunity to amend a complaint before the complaint is dismissed with prejudice, unless granting further leave to amend would be futile or result in undue delay. See Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 253 (3d Cir. 2007); Alston v. Parker, 363 F.3d 229, 235-36 (3d Cir. 2004). Here, however, the Court lacks jurisdiction over Fedder's complaint under Rooker-Feldman, his claims are time-barred (or have not accrued, i.e., malicious prosecution), and his claims are barred under Heck. Amendment would therefore be futile. There is simply no set of facts upon which Fedder is entitled to relief, regardless of whether the Court were to grant him permission to amend his complaint to assert claims against the troopers and other individual defendants, as opposed to the Commonwealth. This is so because the claims themselves are barred by doctrine, statute, and seminal case law, presenting a hurdle that cannot be surpassed by adding or deleting named defendants. Simply put, unfortunate as it may be for Fedder, the Court lacks jurisdiction and authority to hear his claims.
Accordingly, the undersigned recommends that the Court decline to grant Fedder leave to amend his complaint. VI. RECOMMENDATION
Based on foregoing, it is recommended that the Commonwealth's motion to dismiss (Doc. 12) be GRANTED, and that the Court sua sponte dismiss the claims against Defendant Snyder County, to the following extent:
1. Fedder's malicious prosecution claim be DISMISSED WITHOUT PREJUDICE;
2. All other claims be DISMISSED WITH PREJUDICE;
3. The Clerk of Court be directed to CLOSE THIS CASE.
BY THE COURT:
Dated: August 17, 2020
/s/ _________
KAROLINE MEHALCHICK
United States Magistrate Judge CHRISTOPHER J. FEDDER, Plaintiff, v. COMMONWEALTH OF PENNSYLVANIA, et al., Defendants. NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated August 17, 2020. Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Dated: August 17, 2020
/s/ _________
KAROLINE MEHALCHICK
United States Magistrate Judge