Summary
recommending dismissal for failure to state a claim
Summary of this case from Mickell v. GerouloOpinion
CIVIL ACTION NO. 3:18-cv-01540
07-10-2019
JOHNNIE MICKELL, Plaintiff, v. JUDGE VITO P. GEROULO, et al., Defendants.
(CAPUTO, J.)
() REPORT AND RECOMMENDATION
This federal civil rights action was commenced on August 6, 2018, when the pro se plaintiff, Johnnie Mickell, filed the complaint with the Clerk of Court. (Doc. 1.) Mickell has been granted leave to proceed in forma pauperis in this action.
I. BACKGROUND
On August 6, 2018, Mickell filed his hand-written complaint in this action. (Doc. 1.) The complaint asserts a claim for damages pursuant to 42 U.S.C. § 1983 against the following defendants: (a) Hon. Vito P. Geroulo, a judge with the Lackawanna County Court of Common Pleas; (b) Hon. Margaret B. Moyle, a judge with the Lackawanna County Court of Common Pleas; (c) Kathy Kacier, an employee with the Clerk's Office for the Lackawanna County Court of Common Pleas; (d) Brian Williams, a probation officer with the Lackawanna County Adult Probation / Parole Office; (e) Shane P. Scanlon, Jr., the former District Attorney for Lackawanna County; (f) Daniel B. Lipson, a public defender who had been appointed to represent Mickell; (g) Timothy Betti, Warden of Lackawanna County Prison; (h) David Langan, Deputy Warden of Lackawanna County Prison; and (i) Lori Davis, a counselor at Lackawanna County Prison.
Although it is somewhat difficult to follow, the complaint appears to allege that Mickell was falsely imprisoned on multiple occasions in connection with a June 4, 2015, citation for driving under the influence of alcohol or a controlled substance ("DUI"). See Commonwealth v. Mickell, Docket No. CP-35-CR-0002414-2015 (Lackawanna Cty. (Pa.) C.C.P.); see also Commonwealth v. Mickell, Docket No. MJ-45106-CR-0000555-2015 (Lackawanna Cty. (Pa.) Magis. Dist. Ct.). Mickell alleges that an unidentified Scranton police officer issued him a DUI citation on June 4, 2015. While he was still awaiting receipt of a summons for that offense, a Scranton police officer arrested and charged Mickell with two counts of public drunkenness. Mickell remained incarcerated in pretrial detention at Lackawanna County Prison until November 19, 2015, when he alleges that a state magisterial district judge, Hon. Sean P. McGraw, heard and disposed of his June 4, 2015, DUI citation, finding him guilty and sentencing him to serve up to six months in jail, to participate in a drug treatment program, to wear a SCRAM bracelet for 90 days, to have his driver's license suspended for 18 months, and to pay a $375 fine.
We note that Mickell specifically cites this case by docket number in his complaint.
It is unclear from the complaint whether this is the same officer or a different one.
A SCRAM bracelet is apparently an electronic device that permits parole or probation officials to remotely monitor a subject for alcohol use.
On February 18, 2016, Mickell commenced an earlier federal civil rights action by filing a complaint alleging that he had been illegally incarcerated for 64 days for two counts of public drunkenness. See generally Mickell v. Police Dept. of Scranton, Civil Action No. 3:16-cv-00291, 2017 WL 4532160 (M.D. Pa. Mar. 10, 2017) (recommending dismissal for failure to state a claim based on the favorable termination rule enunciated in Heck v. Humphrey, 512 U.S. 477 (1994)), report and recommendation adopted by 2017 WL 4516748 (M.D. Pa. Oct. 10, 2017); see also Mickell v. Weaver, 748 Fed. App'x 485 (3d Cir. 2019) (per curiam) (affirming denial of motion for reconsideration in the same case).
Mickell has specifically cited this prior case by docket number.
The complaint alleges that, on March 9, 2016, Judge Geroulo and other unspecified defendants conspired to issue a bench warrant for Mickell's arrest for failure to appear for a second sentencing hearing in his DUI case, notwithstanding the (alleged) fact that he previously had been sentenced on November 19, 2018, and his six-month sentence had already expired. The complaint alleges that this bench warrant and the "resentencing" were undertaken in retaliation against Mickell for filing his previous federal civil rights action in February 2016. The complaint further alleges that, on March 11, 2016, Judge Geroulo conspired with Scanlon (the prosecutor) and Lipson (Mickell's court-appointed public defender) to compel Mickell to accept a plea agreement under which he would plead guilty to the DUI charge and a second charge of reckless endangerment not previously charged.
The complaint alleges that, on July 18, 2016, Judge Geroulo issued another bench warrant for Mickell's failure to appear for a June 8, 2016 sentencing hearing. On August 11, 2016, Mickell was allegedly sentenced to time-served and up to six months of probation for the DUI charge, plus a consecutive sentence of another three months of probation for the reckless endangerment charge. The complaint further alleges that Judge Geroulo, in conspiracy with Scanlon and Lipson, imposed a fine of $750 and suspended Mickell's driver's license for 12 months.
The complaint alleges that, on or about March 7, 2017, Judge Moyle conspired with the other defendants to once again revoke Mickell's probation and reimpose it for an additional term of three months (through June 7, 2017), despite the alleged illegality of Judge Geroulo's sentence in the first instance.
The complaint alleges that, on June 8, 2017, Kacier and other, unspecified defendants conspired to falsely imprison Mickell for another calendar day based on an allegedly falsified bench warrant detainer, refusing to permit him to be released until he agreed to a payment plan for an outstanding balance owed of $8,000 in fines and court costs.
The complaint also appears to seek to hold Davis and Williams liable because they allegedly knew that Mickell was falsely imprisoned but failed to act. The complaint does not contain allegations of any conduct whatsoever by defendants Betti and Langan.
Based on publicly available state court records, we have ascertained the following additional facts pertinent to our disposition of the pending motions
On September 29, 2015, a criminal complaint was filed, charging Mickell with the misdemeanor of driving under the influence of alcohol or a controlled substance, along with the summary offenses of causing accidental damage to an unattended vehicle or property and driving on a suspended license with a blood alcohol content ("BAC") of .02% or greater. Commonwealth v. Mickell, Docket No. MJ-45106-CR-0000555-2015 (Lackawanna Cty. Magis. Dist. Ct.). The criminal complaint was based on an incident report filed with the Scranton City Police, and it alleged an offense date of June 4, 2015. Id. On November 12, 2015, a preliminary arraignment was held before a state magisterial district judge, Hon. Sean P. McGraw, at which Mickell was represented by a public defender, Daniel B. Lipson. Id. Mickell waived his preliminary hearing and the case was bound over to the Court of Common Pleas. Id.
Besides the November 12, 2015, preliminary hearing, we are unable to locate a record of any other hearing or trial before Judge McGraw, whether on November 19, 2015, or any other date. An unrelated public drunkenness charge appears to have been disposed of on November 19, 2015, but the public docket report indicates that Mickell was not present in court for that disposition. See Commonwealth v. Mickell, Docket No. MJ-45102-NT-0000405-2015 (Lackawanna Cty. (Pa.) Magis. Dist. Ct.).
On March 11, 2016, Mickell appeared before Judge Geroulo and pleaded guilty to one count each of misdemeanor DUI (second offense) with a BAC of .10% to .16% and recklessly endangering another person; all other charges against him were nolle prossed. Commonwealth v. Mickell, Docket No. CP-35-CR-0002414-2015 (Lackawanna Cty. C.C.P.). He was sentenced to serve up to six months in prison, to be followed by a three-month term of probation. Id.
On August 31, 2016, Mickell was released from jail. Id. On September 14, 2016, a capias for his arrest and detention was issued for a violation of probation. Id. He appears to have been taken into custody shortly thereafter. Id. On or about March 7, 2017, Mickell appeared before Judge Moyle and his probation was revoked and re-imposed for an additional term of three months. Id. On or about June 14, 2017, Judge Moyle entered an order terminating probation. Id.
II. LEGAL STANDARD
A plaintiff proceeding in forma pauperis is subject to 28 U.S.C. § 1915(e)(2), which provides that a court "shall dismiss the case at any time if the court determines that . . . the action . . . fails to state a claim on which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii). "The legal standard for dismissing a complaint for failure to state a claim under § 1915(e)(2) is the same as that for dismissing a complaint pursuant to Fed. R. Civ. P. 12(b)(6)." Brodzki v. Tribune Co., 481 Fed. App'x 705, 706 (3d Cir. 2012) (per curiam). Rule 12(b)(6), in turn, 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).
"Under Rule 12(b)(6), a motion to dismiss may be granted only if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court finds the plaintiff's claims lack facial plausibility." Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). In deciding the motion, the 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). Although the Court must accept the fact allegations in the complaint as true, it is not compelled to accept "unsupported conclusions and unwarranted inferences, or a legal conclusion couched as a factual allegation." Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (quoting Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007)). Nor is it required to credit factual allegations contradicted by indisputably authentic documents on which the complaint relies or matters of public record of which we may take judicial notice. In re Washington Mut. Inc., 741 Fed. App'x 88, 91 n.3 (3d Cir. Sept. 25, 2018); Sourovelis v. City of Philadelphia, 246 F. Supp. 3d 1058, 1075 (E.D. Pa. 2017); Banks v. Cty. of Allegheny, 568 F. Supp. 2d 579, 588-89 (W.D. Pa. 2008).
III. DISCUSSION
Liberally construed, the complaint appears to claim that Mickell was falsely imprisoned by various defendants on multiple occasions in connection with single DUI offense, in violation of his Fourth Amendment right to be free from unreasonable seizures, his Fifth Amendment right to be free from double jeopardy, his Eighth Amendment right to be free from cruel and unusual punishment, and his Fourteenth Amendment right to due process. See generally Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244-46 (3d Cir. 2013) (discussing a federal court's obligation to liberally construe the filings of pro se litigants). He further appears to claim that one or more of these periods of incarceration was imposed by a state court judge in retaliation for filing a prior federal civil rights action, in violation of his First Amendment right to petition the government for redress of grievances. Finally, he appears to claim that an employee of the state court clerk's office unlawfully delayed his release from incarceration by one day, in violation of his federal due process rights.
A. Claims Arising Out of Mickell's June 2015 DUI Citation
All but one of Mickell's claims arise out of his June 4, 2015, citation for DUI. Mickell alleges that he was initially convicted and sentenced by a state magisterial district judge on November 19, 2015, but he was then arrested on a bench warrant and re-sentenced for the very same offense on March 11, 2016—after his original sentence had expired. He alleges that he was arrested again pursuant to another bench warrant in July 2016, and he was re-sentenced once again for the same June 2015 DUI citation. Finally, Mickell alleges that he was incarcerated yet again for an additional three months in jail on this same charge when his probation was revoked in March 2017. Mickell claims that these periods of incarceration were unlawful and violated his right to be free from unreasonable seizures under the Fourth Amendment, his right to be free from double jeopardy under the Fifth Amendment, his right to be free from cruel and unusual punishment under the Eighth Amendment, and his right to due process under the Fourteenth Amendment. He further claims that the March 2016 bench warrant and re-sentencing were undertaken in retaliation for his filing of a prior federal civil rights action, in violation of his First Amendment right to petition the government for redress of grievances. These claims are not cognizable under § 1983 under the favorable termination rule articulated by the Supreme Court of the United States in Heck v. Humphrey, 512 U.S. 477 (1994).
In Heck, the Supreme Court held that, where judgment in favor of a plaintiff in a § 1983 action for damages would necessarily imply the invalidity of the plaintiff's conviction or sentence, the plaintiff must first demonstrate "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 [under] 28 U.S.C. § 2254." Id. at 486-87. In Wilkinson v. Dotson, 544 U.S. 74 (2005), the Supreme Court reaffirmed this rule and broadened it to encompass equitable remedies as well, holding that "a state prisoner's § 1983 action is barred (absent prior invalidation)—no matter what the relief sought (damages or equitable relief), no matter the target of the prisoner's suit (state conduct leading to conviction or internal prison proceedings)—if success in that action would necessarily demonstrate the invalidity of confinement or its duration." Id. at 81-82.
Mickell's claims clearly implicate the validity of his conviction and sentence arising out a June 4, 2015, citation, and he has failed to demonstrate that his conviction or sentence has been invalidated. Indeed, the record before the Court indicates that Mickell never challenged this conviction or sentence by direct appeal, by timely PCRA petition, or by federal habeas petition. Accordingly, under Heck, Mickell's § 1983 claims against the jailers who held him in custody as a pretrial detainee or convicted prisoner, his prison counselor, his probation officer, the district attorney who prosecuted him, his court-appointed defense counsel, and the common pleas judges who sentenced him both initially and upon revocation of probation, are not cognizable under 28 U.S.C. § 1983. See Heck, 512 U.S. at 486-87; see also Olick v. Pennsylvania, 739 Fed. App'x 722, 726-27 (3d Cir. 2018) (per curiam) (holding that Heck bars Fourth Amendment false imprisonment claims in which success by plaintiff would conflict with prior judicial resolution of criminal proceedings); Ashton v. City of Uniontown, 459 Fed. App'x 185, 188-89 (3d Cir. 2012) (per curiam) (Heck barred claims that criminal charges, for which plaintiff had been convicted, were initiated by defendants in retaliation for the plaintiff's exercise of First Amendment free speech rights); Hill v. Borough of Doylestown, 2015 WL 1874225, at *5 (E.D. Pa. Apr. 23, 2015) (Heck bars Fourteenth Amendment false imprisonment claims); Lane v. Jenkins, Civil Action No. 10-2149, 2011 WL 6425314, at *3 (E.D. Pa. Dec. 20, 2011) (Heck bars Fifth Amendment double jeopardy claims); Atwell v. Lavan, 557 F. Supp. 2d 532, 563-64 (M.D. Pa. 2008) (Heck bars Eighth Amendment claims that call into question the validity of the plaintiff's confinement).
His complaint is subject to a variety of other defects as well. Judge Geroulo and Judge Moyle are entitled to Eleventh Amendment immunity in their official capacities, and to absolute judicial immunity in their personal capacities. The district attorney is entitled to prosecutorial immunity. The plaintiff's court-appointed public defender is not a state actor. The complaint has failed to allege any personal involvement by Warden Betti, Deputy Warden Langan, Counselor Davis, or Probation Officer Williams.
Accordingly, it is recommended that the complaint be dismissed as against defendants Geroulo, Betti, Langan, Davis, Lipson, Scanlon, Moyle, and Williams for failure to state a claim upon which relief can be granted, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). It is further recommended that the complaint be dismissed without leave to amend, as any amendment clearly would be futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).
B. Claim Concerning One-Day Delay in Release from Jail
In addition, the complaint alleges that defendant Kacier caused Mickell's release from county jail to be delayed by a day while arrangements were made for a payment plan on an approximately $8,000 balance of fees and costs owed by Mickell in connection with various criminal proceedings, in violation of his Fourteenth Amendment due process rights.
The complaint suggests that this delay was due to one or more detainers issued in other criminal matters not related to the underlying June 4, 2015, DUI citation.
As a court clerk, performing ministerial acts in furtherance of various state court judgments against Mickell, Kacier is immune from suit. See Catanzaro v. Davis, 686 Fed. App'x 91, 94 (3d Cir. 2017) (per curiam); Smith v. Rosenbaum, 460 F.2d 1019, 1020 (3d Cir. 1972) (per curiam). Moreover, "[t]he due process standard is one of reasonable dispatch, not of instantaneous action." Burgess v. Roth, 387 F. Supp. 1155, 1161-62 (E.D. Pa. 1975) (finding six-day delay in a parolee's release not unreasonable, and therefore not unconstitutional); see also Regan v. Upper Darby Twp., 363 Fed. App'x 917, 924-25 (3d Cir. 2010) (five-day delay in releasing arrestee after posting bail not unreasonable). During the same time frame when the underlying criminal proceedings and sentence were ongoing, Mickell was charged with, pleaded guilty to, and was convicted of multiple summary offenses, each of which involved fines and costs, as did the underlying DUI offense. See Mickell, 2017 WL 4532160, at *2 (collecting cases). Under these circumstances, it was not unreasonable to expect court, probation, and jail officials to take a day to effect his release.
Accordingly, it is recommended that the complaint be dismissed as against defendant Kacier for failure to state a claim upon which relief can be granted, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). It is further recommended that the complaint be dismissed without leave to amend, as any amendment clearly would be futile. See Grayson, 293 F.3d at 108.
IV. RECOMMENDATION
For the foregoing reasons, it is recommended that:
1. The complaint (Doc. 1) be DISMISSED with prejudice for failure to state a claim, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii); and
2. The Clerk be directed to mark this case as CLOSED. Dated: July 10, 2019
s/Joseph F . Saporito , Jr.
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated July10, 2019. Any party may obtain a review of the Report and Recommendation pursuant to Local 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.
Failure to file timely objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights. Dated: July 10, 2019
s/Joseph F . Saporito , Jr.
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge