Opinion
Civil Action 2: 22-cv-01375
10-24-2022
HENRY JAMES HOLMES, Plaintiff, v. MICHAEL VEITH, Pittsburgh City Police Officer; ORLANDO HARPER, Allegheny County Jail Warden, JOSE MANUEL CARVALLO, JR., Allegheny County Public Defender; COLONEL ROBERT EVANCHICK, Penn State Police Commissioner, B. SMITH, D. CORBETT, ROBERT FORMAN, ABEL SORIA, A. SANDQUIST, Deceased, DONNA L. JOHNSON, ATTY JORGE HERNANDEZ, CINDI BETH MISHKIN, and RAJON MALINE, Defendants.
Mark R. Hornak, United States District Judge
This matter has been referred to the undersigned United States Magistrate Judge for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b).
Cynthia Reed Eddy United States Magistrate Judge
I. Recommendation
It is respectfully recommended that, pursuant to the screening provisions of 28 U.S.C. § 1915(e), Plaintiff's Complaint be pre-service dismissed as frivolous and for failure to state a claim upon which relief can be granted. It is recommended that the dismissal be with prejudice as amendment would be futile.
II. Report
A. Procedural and Factual Background
Plaintiff initiated this case on September 28, 2022, by the filing of a Motion for Leave to Proceed in forma pauperis (“IFP motion”). ECF No. 1. Attached to the IFP motion was a Complaint for a Civil Case, which was lodged pending disposition of the IFP motion. The IFP motion was granted on October 3, 2022, ECF No. 3, and the Complaint filed that day. ECF No. 4.
This is the fifth time Plaintiff, Henry James Holmes, has filed a complaint contending that his constitutional rights were violated when he was arrested in Pennsylvania on August 29, 2014, and prosecuted and wrongfully detained in connection with his failure to register as a sex offender. See Holmes v. Harper, et al., No. 17-cv-1278, Holmes v. Veith, et al., No. 19-cv-1398, Holmes v. Harper, et al, No. 2: 22-cv-00047, and Holmes v. Veith, et al, No. 22-0580, all filed in the United States District Court for the Western District of Pennsylvania. In the instant case, in addition to claims surrounding his 2014 arrest, Mr. Holmes asserts additional claims contending that his constitutional rights were violated in 2000 when he was arrested in California on “false sex charges” based on a false police report.
Named in the instant complaint are thirteen defendants. Defendants Veith, Harper, Carvallo, and Evanchick (hereinafter collectively referred to as the “Pennsylvania Defendants”) were involved in Mr. Holmes's 2014 Pennsylvania criminal case and have been named as defendants in Mr. Holmes's previous cases filed in this Court; the remaining nine defendants were involved in Mr. Holmes's 2000 California criminal proceedings, and are either the arresting police officers or the attorneys who represented Mr. Holmes in his California criminal proceedings (hereinafter collectively referred to as the “California Defendants”).
Defendants Veith and Harper were named defendants in Case Nos. 17-1278; 19-1398, 22-0047, and 22-0580; Defendant Carvallo was a named defendant in Case Nos. 19-1398 and 22-0580; and Defendant Evanchick was a named defendant in Case No. 22-0580.
While the undersigned questions whether this Court has personal jurisdiction over the California Defendants, it is mindful of the general rule that “because personal jurisdiction may be conferred by consent of the parties . . . a court may not sua sponte dismiss for want of personal jurisdiction.” Zelson v. Thomforde, 412 F.2d 56, 59 (3d Cir. 1969); Jasper v. Bexar Cnty. Adult Det. Ctr., 332 Fed.Appx. 718, 719 (3d Cir. 2009). This is true even if the litigant has in forma pauperis status. Sinwell v. Shapp, 536 F.2d 15, 19 (3d Cir. 1976) (holding that a district court may not sua sponte dismiss the complaint of a litigant proceeding in forma pauperis solely because of improper venue).
B. Discussion
1. Claims Against The Pennsylvania Defendants
a. Duplicative suits are frivolous or malicious under 28 U.S.C. § 1915(e)(2)(B)(i)
While 28 U.S.C. § 1915 authorizes litigants like Mr. Holmes to proceed in forma pauperis, such status is a privilege which may be denied when abused. After granting IFP status, the Court must dismiss the case sua sponte if (i) the allegation of poverty is untrue, (ii) the action is frivolous or malicious, (iii) the complaint fails to state a claim upon which relief may be granted, or (iv) the complaint seeks money damages from a defendant who is immune from suit. 28 U.S.C. § 1915(e)(2). “Repetitious litigation of virtually identical causes of action may be dismissed under § 1915 as frivolous or malicious.” Banks v. County of Allegheny, 568 F.Supp.2d 579, 589 (W.D. Pa. 2008) (quoting McWilliams v. Colorado, 121 F.3d 573, 574 (10th Cir. 1997)). Here, the allegations in the instant complaint against the Pennsylvania Defendants are identical and repetitious of the allegations contained in Holmes v. Veith, et al., No. 22-0580.
A comparison of the two Complaints reveals that all four of the Pennsylvania Defendants were named defendants in both complaints and that the allegations of the instant Complaint are clearly repetitious and identical to the allegations in Case No. 22-0580, which claims were found to be frivolous and dismissed pre-service with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) as frivolous. Therefore, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), the allegations against the Pennsylvania Defendants should be dismissed as frivolous prior to the Complaint being served. Amendment would be futile.
b. The Claims are Time-Barred
Dismissal is also proper under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim for the same reasons that Holmes v. Harper, et al., No. 17-cv-1278, and Holmes v. Veith, et al., No. 19-cv-1398, Holmes v. Veith, et al., No. 22-0047, and Holmes v. Veith, et al., No. 22-0580, were dismissed, namely, that the Complaint is clearly time barred.
In Pennsylvania, the applicable statute of limitations for claims under 42 U.S.C. §1983 is two years. Lake v. Arnold, 232 F.3d 360 (3d Cir. 2000). This case was filed on September 28, 2022. The allegations against the Pennsylvania Defendants arise from incidents occurring in 2014. Based on the allegations contained in the Complaint, it is clear that the allegations against the Pennsylvania Defendants are time barred by the applicable statute of limitations. Therefore, the Complaint fails to state a claim against the Pennsylvania Defendants and all claims against these defendants should be dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim. Amendment would be futile.
2. Claims Against the California Defendants
The Complaint indicates that this Court's jurisdiction is based upon both diversity of citizenship and federal question jurisdiction. However, it appears that Mr. Holmes is seeking to invoke his constitutional rights under the Fourth, Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution. Thus, the undersigned construes the Complaint as one invoking the Court's federal question jurisdiction.
The claims against the California Defendants arise from Mr. Holmes's arrest and conviction in 2000. The California Defendants are five attorneys who represented Mr. Holmes during his criminal proceedings (A. Sandquist, Donna Johnson, Jorge Hernandez, Cindi Mishkin, and Rajon Maline) and four police officers with the Riverside Police Department (B. Smith, D. Corbett, Robert Foreman, and Abel Soria).
a. The Claims are Time Barred
The length of the statute of limitations is determined by state law. Wallace v. Kato, 549 U.S. 384, 387 (2007). In California, the statute of limitations for personal injury actions is two years. Cal. Code Civ. Proc. § 335.1. In this case, the California two-year statute of limitations for personal-injury actions governs all claims because they arise from allegedly tortious conduct in California. See Kach v. Hose, 589 F.3d 626, 629 (3d Cir. 2009) (holding § 1983 claim is governed by the statute of limitations that applies to tort claims of “the state in which such a claim arises.”).
The Complaint clearly indicates that all claims against the California Defendants arise from allegedly tortious conduct occurring during Mr. Holmes's criminal proceedings in 2000. Based on the allegations contained in the Complaint, it is clear that the allegations against the California Defendants are time barred by the applicable statute of limitations. The Complaint fails to state a claim against the California Defendants and the allegations against the California Defendants should be dismissed prior to the Complaint being served under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim. Amendment would be futile.
a. Defendants Sandquist, Johnson, Hernandez, Mishkin, and Maline
Dismissal of the claims against attorneys Sandquist, Johnson, Hernandez, Mishkin, and Maline is also proper for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii). Section 1983 imposes civil liability upon any person who, under color of state law, deprives someone of the rights, privileges, or immunities secured by the federal Constitution or the laws of the United States. Gruenke v. Seip, 225 F.3d 290, 298 (3d Cir. 2000). Section 1983 is “not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989). To state a claim under Section 1983, a plaintiff must allege a deprivation of a right secured by the Constitution or laws of the United States and that the deprivation occurred under color of state law. Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 931 (1982). An individual acts under color of state law when: “(1) he is a state official, (2) ‘he has acted together with or has obtained significant aid from state officials,' or (3) his conduct is, by its nature, chargeable to the state.” Lugar, 457 U.S. at 937.
The sole involvement in this case of each of these attorneys is as the attorney representing Mr. Holmes during his California criminal proceedings. There are few principles as well-settled in the law as this: an attorney cannot be considered a state actor simply because of his or her status as an attorney and officer of the court. As explained by the Supreme Court of the United States:
It is often said that lawyers are “officers of the court.” But the Courts of Appeals are agreed that a lawyer representing a client is not, by virtue of being an officer of the court, a state actor “under color of state law” within the meaning of § 1983.Polk County v. Dodson, 454 U.S. 312, 318-19 (1981) (internal citations omitted). Thus, “[a]lthough states license lawyers to practice, and although lawyers are deemed ‘officers of the court,' this is an insufficient basis for concluding that lawyers act under color of state law for the purposes of [Section 1983].” Henderson v. Fisher, 631 F.2d 1115, 1119 (3d Cir. 1980); see also Angelico v. Lehigh Valley Hosp., 184 F.3d 268, 277-78 (3d Cir. 1999) (“Attorneys performing their traditional functions will not be considered state actors solely on the basis of their positions as officers of the court.”).
Accordingly, the Complaint fails to state a claim against attorneys Sandquist, Johnson, Hernandez, Mishkin, and Maline and the allegations against these defendants should be dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim. Amendment would be futile.
III. Conclusion
For all the above reasons, it is respectfully recommended that the instant Complaint be dismissed pre-service as frivolous and for failing to state a claim upon which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii). It is recommended that the dismissal be with prejudice as amendment would be futile.
Plaintiff is permitted to file Objections to this Report and Recommendation to the assigned United States District Judge. In accordance with 28 U.S.C. § 636(b), Fed.R.Civ.P. 6(d) and 72(b)(2), and LCvR 72.D.2, Plaintiff may file written objections to this Report and Recommendation by November 10, 2022. Plaintiff is cautioned that failure to file Objections within this timeframe “will waive the right to appeal.” Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). See also EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir. 2017) (describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error).