Opinion
Civil Action 1:19-CV-2132
03-24-2021
ANTWAN L. RICHARDSON, Plaintiff v. JOSEPH F. HARTYE, et al., Defendants
CONNER, D.J.
REPORT & RECOMMENDATION
William I. Arbuckle U.S. Magistrate Judge
I. INTRODUCTION
Antwan L. Richardson (“Plaintiff”) is serving time on a state criminal conviction. In this case, he asserts claims against the Judge, prosecutors, and public defenders involved in the proceedings that resulted in that criminal conviction. Plaintiff's claims for malicious prosecution, improperly ordered mental health
Plaintiff's criminal case can be found at Dauphin County criminal docket number CP-22- CR-0000473-2018 (available at https://ujsportal.pacourts.us). At this time, Plaintiff's trial has occurred, and the case is currently under appeal. The appellate case can be found at Pennsylvania Superior Court docket number 825 MDA 2020 (available at https://ujsportal.pacourts.us).
On December 9, 2017, Plaintiff was pulled over in Ellicott City, Maryland. (Doc. 30, p. 3). During the traffic stop, the officer determined that there was an active warrant for Plaintiff's arrest from Harrisburg, Pennsylvania for the crimes of kidnapping and false imprisonment. Id. Plaintiff was taken into custody at that time. On December 13, 2017, Plaintiff was extradited to Dauphin County, where he was confined in Dauphin County Prison. Id.
On January 9, 2020, Plaintiff was tried and convicted of both kidnapping and false imprisonment. Commonwealth v. Richardson, CP-22- CR-473-2018 (C.C.P Dauphin Cty.). On March 10, 2020, Plaintiff was sentenced. Id. Plaintiff filed posttrial motions, which were denied by Defendant Curcillo. That denial was appealed to the Superior Court of Pennsylvania. Commonwealth v. Richardson, No. 825 MDA 2020 (Pa. Super.). That appeal is still pending.
In December of 2019, Plaintiff, a state inmate, lodged his Original Complaint in this case. (Doc. 1). Along with his Complaint, Plaintiff requested leave to proceed in forma pauperis. (Doc. 2). On February 12, 2020, Plaintiff was granted leave to proceed in forma pauperis, and his Complaint was evaluated pursuant to 28 U.S.C. § 1915(e)(2). In its Order, the Court explained to Plaintiff that his Complaint, as written, failed to state a claim upon which relief could be granted. (Doc. 8). Because of he is not represented by counsel in this case, the Court explained why his Complaint could not proceed as written and gave Plaintiff an opportunity to fix those defects by filing an amended complaint. Id.
After being granted several extensions of time, Plaintiff filed an Amended Complaint on October 29, 2020. (Doc. 30). In his Amended Complaint, Plaintiff alleges claims arising out of alleged irregularities that occurred during the state court criminal proceedings. Plaintiff has beings claims against the presiding judge, public defenders, and prosecutors involved in the State court criminal case. Specifically, he names the following individuals as Defendants:
(1) Joseph F. Hartye, a public defender appointed to represent Plaintiff;
(2) Bradley A. Winnick, former chief public defender in Dauphin County;
(3) Dauphin County Public Defender's Office;
(4) John R. Canavan, a Dauphin County Assistant District Attorney;
(5) Dauphin County District Attorney's Office;
(6) Deborah E. Curcillo, a Judge in the Dauphin County Court of Common Pleas; and
(7) Francis T. Chardo, the Dauphin County District Attorney.As relief, Plaintiff requests:
1.) Granting Plaintiff Richardson a declaration that the acts and omissions described here in violation of his rights under the constitution and laws of the United States, and
2.) A preliminary and permanent injunction ordering defendant Deborah E. Curcillo to revoke and expunge the involuntary commitment orders to a mental health facility that were put in on 4-8-2019 and 6-6-2019 in violation of the mental health procedures act (act 106) due process procedures.
3.) A preliminary and permanent injunction ordering defendant Debra E. Curcillo to dismiss said complaint and docket # CP-22- CR-0000473-2018 for violating plaintiff Richardson speedy trial rights which has caused Plaintiff prejudice.
4.) Granting Plaintiff Richardson compensatory damages in the amount of $250, 000.00 against Defendants Joseph F. Hartye, Bradley A. Winnick, Dauphin County Public Defender Office, John R. Canavan, Francis T. Chardo, and the Dauphin County District Attorney Office, jointly and severally.
5.) Plaintiff seeks punitive damages in the amount of $250, 000.00 against defendants Joseph F. Hartye, Bradley A. Winnick, the Dauphin County Public Defenders Office, John R. Canavan, Francis T. Chardo, and the Dauphin County District Attorney Officer, jointly and severally.
6.) Plaintiff also seek a Jury Trial on all issues triable by Jury.
7.) Plaintiff also seek recovery of his cost in this suit, and
8.) Any additional relief this court deems just, proper, and equitable.(Doc. 30, pp. 10-11).
III. LEGAL STANDARD FOR SCREENING COMPLAINTS FILED IN FORMA PAUPERIS
This Court has a statutory obligation to conduct a preliminary review of complaints brought by litigants given leave to proceed in forma pauperis. Specifically, the Court is obliged to review the complaint in accordance with Title 28, Section 1915(e)(2) of the United States Code, which provides, in pertinent part:
(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that -
(A) the allegation of poverty is untrue; or
(B) the action or appeal--
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
28 U.S.C. § 1915(e)(2). In performing this mandatory screening function, the Court applies the same standard that is used to evaluate motions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, which provides that a complaint should be dismissed 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 observed the evolving standards governing pleading practice in the federal courts, stating that “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). “[A] complaint must do more than allege the plaintiff's entitlement to relief.” Id. at 211. It also “has to ‘show' such an entitlement with its facts.” Id.(iii) seeks monetary relief against a defendant who is immune from such relief.
To test the sufficiency of the complaint under Rule 12(b)(6), the court must conduct the following three-step inquiry:
First, the court must “tak[e] note of the elements a plaintiff must plead to state a claim.” Iqbal, 129 S.Ct. at 1947. Second, the court should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 1950. Finally, “where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.” Id.Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010).
A complaint filed by a pro se litigant is to be liberally construed and “however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Nevertheless, “pro se litigants still must allege sufficient facts in their complaints to support a claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013). A well-pleaded complaint must contain more than mere legal labels and conclusions. Rather, a pro se complaint must recite factual allegations that are enough to raise the Plaintiff's claimed right to relief beyond the level of mere speculation, set forth in a “short and plain” statement of a cause of action.
IV. ANALYSIS
The claims alleged by Plaintiff in this case fall into five categories: (A) Malicious Prosecution; (B) claims related to a mental health evaluation at Torrance State Hospital; (C) claims related to the delay of Plaintiff's criminal trial without his consent; (D) claims related to an alleged immunity agreement with Azzarria Simon (the victim of the kidnapping and false imprisonment Plaintiff was charged with); and (E) ineffectiveness of counsel from the dauphin county public defender's office.
I will address each claim below.
A. MALICIOUS PROSECUTION
In his Amended Complaint, Plaintiff alleges:
2.) Defendant John R. Canavan violated Plaintiff's due process rights under the 5th and 14th Amendment of the U.S. Constitution by maliciously prosecuting the plaintiff after being made aware of exculpatory evidence that is being withheld from plaintiffs case on 219-2019.
3.) Defendant John R. Canavan was made aware of two very contradicting statements made by alleged victim Simon on 1-24-2018 and 12-6-2017, at the 1-24-2018 preliminary hearing, and on 1-6-2020 withheld impeachable evidence of Ms. Simonson's immunity deal from Cumberland county, but continues to provide malicious prosecution and with-hold exculpatory evidence violating plaintiffs 8th Amendment rights under the U.S. Constitution for cruel and unusual punishment. This is causing plaintiff pain, suffering, mental and emotional distress.(Doc. 30, p. 7). I construe these allegations as a claim of malicious prosecution under the Fourth Amendment alleged against Dauphin County Assistant District Attorney John R. Canavan (“Defendant Canavan”).
At the outset, I note that this, and many of the other claims asserted by Plaintiff in his Amended Complaint allege violations of rights secured by the Constitution of the United States. Such claims are brought pursuant to 42 U.S.C. § 1983. “Section 1983 imposes civil liability upon any person who, acting under the color of state law, deprives another individual of any rights, privileges, or immunities secured by the Constitution or laws of the United States.” Shuman v. Penn Manor School Dist., 422 F.3d 141, 146 (3d Cir. 2005). “It is well settled that § 1983 does not confer any substantive rights, but merely ‘provides a method for vindicating federal rights elsewhere conferred.'” Williams v. Pennsylvania Human Relations Comm'n, 870 F.3d 294, 297 (3d Cir. 2017) (quoting Hildebrand v. Allegheny Cty., 757 F.3d 99, 104 (3d Cir. 2014)). To establish a claim under § 1983, Plaintiff must establish a deprivation of a federally protected right and that this deprivation was committed by a person acting under color of state law. Woloszyn v. County of Lawrence, 396 F.3d 314, 319 (3d Cir. 2005).
With respect to Plaintiff's claim of malicious prosecution in particular, it is well-settled that:
“[t]o prove malicious prosecution ... a plaintiff must show that: (1) the defendants initiated a criminal proceeding; (2) the criminal proceeding ended in plaintiff's favor; (3) the proceeding was initiated without probable cause; (4) the defendants acted maliciously or for a purpose other than bringing the plaintiff to justice; and (5) the plaintiff suffered deprivation of liberty consistent with the concept of seizure as a consequence of a legal proceeding.” Estate of Smith v. Marasco, 318 F.3d 497, 521 (3d Cir. 2003); Kossler v. Crisanti, 564 F.3d 181, 186 (3d Cir. 2009); Piazza v. Lakkis, 2012 WL 2007112, *7 (M.D. Pa. June 5, 2012); Curry v. Yachera, 835 F.3d 373, 379-80 (3d Cir. 2016). “[A] claim for malicious prosecution ‘permits damages for confinement imposed pursuant to legal process.' ” Piazza, 2012 WL 2007112, *8 (citations omitted). Further, “a claim for malicious prosecution seeks to remedy ‘the deprivation of liberty accompanying prosecution, not prosecution itself.' ” Id. (citations omitted).Wiggins v. McAndrew, No. 3:17-cv-1410, 2018 WL 3727389 at *7 (M.D. Pa. Aug. 6, 2018).
Plaintiff has failed to plead a plausible claim of malicious prosecution. At this time, publicly available records from the Dauphin Court of Common Pleas show that Plaintiff was convicted of the crimes he was charged with. That conviction has not yet been overturned. Therefore, Plaintiff's malicious prosecution claim against Defendant Canavan should be dismissed.
B. PLAINTIFF'S CLAIMS RELATED TO MENTAL HEALTH EVALUATION AT TORRANCE STATE HOSPITAL
In his Amended Complaint, Plaintiff alleges the following claims against Judge Deborah E. Curcillo (“Defendant Curcillo”) and Defendant Canavan related to a transfer to Torrance State Hospital for mental health evaluation:
4.) Defendant Deborah E. Curcillo and John R. Canavan violated Plaintiff's due process rights under the 5th and 14th Amendment of the U.S. Constitution by illegally having Plaintiff involuntarily committed to Torrance State Hospital in violation of the Mental Health Procedures Act (Act 106). When the Plaintiff did not meet any of the requirements needed for a 50 P.S.§ 7402 commitment order, and the Plaintiff did not have a mental health lawyer present, or was given notice and an opportunity to object to an involuntary commitment order, which is required by 50 P.S. § 7402, 7401, 7301, and Act 106.
5.) Defendant Deborah E. Curcillo and John R. Canavan violated Plaintiffs 4th Amendment rights of the U.S. Constitution by illegally seizing Plaintiff and having Plaintiff involuntarily committed to Torrance State Hospital in violation of the Mental Health Procedures Act (Act 106), when the Plaintiff did not meet any of the requirements needed for a 50 P.S. § 7402 commitment order, the Plaintiff did not have a mental health lawyer present, or was given notice and an opportunity to object to an involuntary commitment order, which is required by 50 P.S. § 7402, 7401, 7301 and Act 106.(Doc. 30, pp. 7-8). Plaintiff also alleges that the public defender appointed to represent him for part of the criminal proceedings, Joseph F. Hartye (“Defendant Hartye”) conspired with Defendant Curcillo to have Plaintiff “illegally involuntarily committed to Torrance State Hospital.” (Doc. 30, pp. 8-9).
Based on facts gleaned from the Amended Complaint, its attachments, and publicly available court records, it appears that in the fall of 2018, Defendant Hartye asked the public defender's office mental health advocate to informally meet with Plaintiff and ask questions about Plaintiff's previous mental health treatment and diagnoses. (Doc. 30, p. 15). That mental health advocate did not conduct an evaluation or write a report. Id.
On April 5, 2019, the Commonwealth filed a Motion in Plaintiff's criminal case requesting a competency evaluation. Commonwealth v. Richardson, CP-22- CR-473-2018 (C.C.P Dauphin Cty.). Plaintiff alleges that this Motion was filed by Defendant Canavan. (Doc. 30, p. 5).
Plaintiff alleges a hearing was held on April 8, 2019 to address that Motion. Id. It is not clear whether the Commonwealth's Motion was filed pursuant to Pennsylvania's Mental Health Procedures Act, however Plaintiff suggests that it was. During the hearing Defendant Curcillo stated that he would send someone to the prison to evaluate Plaintiff. Id. Plaintiff believed this evaluation to be unnecessary because he had already been examined by the prison psychologist (David Zug), and the public defender's mental health advocate (Elizabeth Manning). Id. Plaintiff says he was never informed that he would be “involuntarily committed.” Id. At the conclusion of that hearing Defendant Curcillo ordered a competency evaluation. (Doc. 30, p. 14); Commonwealth v. Richardson, CP-22- CR-473-2018 (C.C.P Dauphin Cty.).
On June 18, 2019, Plaintiff wrote the following in an inmate request slip:
I would like to know if you could contact my attorney Wendy Grella, and tell her that she was assigned to my case on 6-4-2019. And she has to set a court-date for me, cause I don't have one. My docket sheet says mental health evaluation-inpatient, it is 72 days later and I have not been evaluated and always remained inside DCP, and competent to stand trial after two previous evaluation in January and October 2018. Thank You.(Doc. 30, p. 17).
Plaintiff alleges that on October 1, 2019, he was transferred to Torrance State Hospital for evaluation. (Doc. 30, p. 5). He alleges that he was found competent on October 1, 2019. Id. On October 10, 2019, Plaintiff was transferred back to Dauphin County Prison. Id.
Although Plaintiff frames this claim as arising under the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution, I construe it as a due process claim under the Fourteenth Amendment only. The Fourteenth Amendment provides that a state shall not “deprive any person of life, liberty, or property, without due process of law.” A due process claim requires a two-part analysis. First, the court must determine whether the interest asserted by the plaintiff is within the scope of protection of life, liberty, or property found in the Due Process Clause. Shoats v. Horn, 213 F.3d 140, 143 (3d Cir. 2000). Second, if the interest is one that is protected by the Due Process Clause, “the question then becomes what process is due to protect it.” Id.
In his Amended Complaint, Plaintiff alleges that his due process rights were violated when he was transferred to Torrance State Hospital for 10 days in October 2019. Plaintiff was a detained pending a criminal trial on state charges of kidnapping and false imprisonment at the time. Based on the facts alleged in the Amended Complaint and its attachments, as well as the State court criminal docket, it appears that Plaintiff was transferred to Torrance State Hospital for the purpose of evaluation only, and not for treatment. Plaintiff does not allege that he was subject to involuntary medication or treatment during the ten days he spent there.
As an initial matter, I note that it is not clear whether Plaintiff-a pretrial detainee at the time of the alleged violation-has a protected liberty interest in avoiding transfer to a mental health facility for evaluation. Although the Supreme Court held that involuntary transfer of a sentenced prisoner to a mental hospital (for an indefinite period of time where the prisoner will be subject to involuntary behavioral modification treatment) is protected by the due process clause, Vitek v. Jones, 445 U.S. 480 (1980), this liberty interest has not been extended to situations where a sentenced prisoner is transferred for evaluation only U.S. v. Jones, 811 F.2d 444 (8th Cir. 1987), Fortune v. Bitner, 285 Fed.Appx. 947 (3d Cir. 2008).
Even assuming arguendo Plaintiff does have a protected liberty interest, Plaintiff was afforded a hearing in the Dauphin County Court of Pleas, had a public defender appointed to represent him at the time (though it is not clear who appeared on his behalf during the hearing), and appeared to be aware that he would be transferred for an inpatient evaluation. Plaintiff does not appear to contest that he was given a hearing.
Furthermore, assuming arguendo Plaintiff has alleged a plausible due process claim, the Defendants he has named are either immune or are not state actors.
1. Defendant Curcillo
As stated above, “Section 1983 imposes civil liability upon any person who, acting under the color of state law, deprives another individual of any rights, privileges, or immunities secured by the Constitution or laws of the United States.” Shuman, 422 F.3d at 146.
“Although § 1983 purports to subject ‘[e]very person' acting under color of state law to liability for depriving any other person in the United States of ‘rights, privileges, or immunities secured by the Constitution and laws,' the Supreme Court has recognized that § 1983 was not meant to ‘abolish wholesale all common-law immunities.'” Yarris v. Cnty. of Delaware, 465 F.3d 129, 134-35 (3d Cir. 2006) (quoting Pierson v. Ray, 386 U.S. 547, 554 (1967)); see also Russell v. Richardson, 905 F.3d 239, 247 (3d Cir. 2018).
There are two kinds of immunity under Section 1983: qualified immunity and absolute immunity. Yarris, 465 F.3d at 135. Although most public officials are entitled only to qualified immunity, public officials who perform “special functions” are entitled to absolute immunity. Id. (quoting Butz v. Economou, 438 U.S. 478, 508 (1978)). “[A]bsolute immunity attaches to those who perform functions integral to the judicial process.” Williams v. Consovoy, 453 F.3d 173, 178 (3d Cir. 2006). “This immunity was and still is considered necessary ‘to assure that judges, advocates, and witnesses can perform their respective functions without harassment or intimidation.'” McArdle v. Tronetti, 961 F.2d 1083, 1084 (3d Cir. 1992) (quoting Butz, 438 U.S. at 512).
A functional approach is used to determine whether absolute or qualified immunity applies. Forrester v. White, 484 U.S. 219, 224 (1988). The inquiry focuses on the nature of the function performed, not the identity of the actor who performed it. Id.; see also Russell, 905 F.3d at 247. “The Supreme Court long has recognized that judges are immune from suit under section 1983 for monetary damages arising from their judicial acts.” Gallas v. Sup. Ct., 211 F.3d 760, 768 (3d Cir. 2000). The Supreme Court has described the reasons for recognizing judicial immunity as follows:
[T]he nature of the adjudicative function requires a judge frequently to disappoint some of the most intense and ungovernable desires that people can have .... [T]his is the principal characteristic that adjudication has in common with legislation and with criminal prosecution, which are the two other areas in which absolute immunity has most generously been provided. If judges were personally liable for erroneous decisions, the resulting avalanche of suits, most of them frivolous but vexatious, would provide powerful incentives for judges to avoid rendering decisions likely to provoke such suits. The resulting timidity would be hard to detect or control, and it would manifestly detract from independent and impartial adjudication.Forrester, 484 U.S.at 226-27 (citations omitted).
The Court must engage in a two-part inquiry to determine whether judicial immunity is applicable. Gallas, 211 F.3d at 768. First, because immunity applies only to actions taken in a judge's judicial capacity, we must determine whether the challenged actions of the judge were taken in his or her judicial capacity. Id. The relevant factors “relate to the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity.'” Id. at 768-69 (quoting Stump v. Sparkman, 435 U.S. 349, 362 (1978)). “Our task is to ‘draw the line between truly judicial acts, for which immunity is appropriate, and acts that simply happen to have been done by judges,' such as administrative acts.” Id. at 769 (quoting Forrester, 484 U.S. at 227).
“Second, a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction.” Id. at 768 (quoting Mireles v. Waco, 502 U.S. 9, 12 (1991)). In this regard, “we must distinguish between acts in the ‘clear absence of all jurisdiction,' which do not enjoy the protection of absolute immunity, and acts that are merely in ‘excess of jurisdiction,' which do enjoy that protection.” Id. at 769 (quoting Stump, 435 U.S. at 356 n. 6). Judicial immunity shields a judge from liability for judicial acts even if those acts were taken in error, if they were done maliciously, if they were in excess of the judge's authority, if the judge committed grave procedural errors, or if the judge's actions were unfair or controversial. Id. A judge will be subject to liability only when he or she has acted in the clear absence of all jurisdiction. Id. “In sum, our analysis must focus on the general nature of the challenged action, without inquiry into such ‘specifics' as the judge's motive or the correctness of his or her decision.” Id.; see also Mireles, 502 U.S. at 13.
Plaintiff alleges that Defendant Curcillo violated his due process rights by granting Defendant Canavan's motion requesting a competency evaluation, which eventually resulted in Plaintiff being transferred to a mental health facility for ten days. Based on the allegations in the Amended Complaint, upon receipt of Defendant Canavan's motion, Defendant Curcillo held a hearing and then issued an order granting the motion. These acts were taken by Defendant Curcillo in her judicial capacity. Plaintiff does not suggest that Defendant Curcillo lacked jurisdiction to order a competency evaluation. Instead, he alleges that his due process rights were violated because he was not told he would be transferred to a mental hospital for that evaluation to take place. Accordingly, I find that Plaintiff's due process claim against Defendant Curcillo should be dismissed because Defendant Curcillo is immune.
2. Defendant Canavan
Plaintiff's Amended Complaint fails with respect to his claim against Defendant Canavan. Plaintiff alleges that Defendant Canavan denied Plaintiff due process of law when Defendant Canavan filed a motion requesting a competency examination. This he may not do. It is well-settled that a criminal defendant may not sue prosecutors for their act of filing charges against him since such conduct is cloaked in immunity from civil liability. The immunity conferred upon prosecutors for the quasi-judicial act of filing and bringing criminal charges is broad and sweeping:
[T]he Supreme Court [has] held that state prosecutors are absolutely immune from liability under § 1983 for actions performed in a quasijudicial role. This immunity extends to acts that are “intimately associated with the judicial phase of the criminal process, ” such as “initiating a prosecution and . . . presenting the State's case.” Court has noted numerous public policy considerations underlying its extension of absolute immunity to prosecutors: [S]uits against prosecutors for initiating and conducting prosecutions “could be expected with some frequency, for a defendant often will transform his resentment at being prosecuted into the ascription of improper and malicious actions to the State's advocate”; lawsuits would divert prosecutors' attention and energy away from their important duty of enforcing the criminal law; prosecutors would have more difficulty than other officials in meeting the standards for qualified immunity; and potential liability “would prevent the vigorous and fearless performance of the prosecutor's duty that is essential to the proper functioning of the criminal justice system.” . . . [T]here are other checks on prosecutorial misconduct, including the criminal law and professional discipline.Yarris v. County of Delaware, 465 F.3d 129, 135 (3d Cir. 2006) (citations omitted).
Plaintiff largely seeks to hold Defendant Canavan personally liable for the act of filing a motion as part of the prosecution of the case against Plaintiff. Since these officials are immune from individual liability for their duties in initiating and pursing a criminal prosecution, Plaintiff's due process claim against Defendant Canavan for filing a motion requesting a competency examination should be dismissed.
3. Defendant Hartye
As noted above, “[s]ection 1983 imposes civil liability upon any person who, acting under the color of state law, deprives another individual of any rights, privileges, or immunities secured by the Constitution or laws of the United States.” Shuman v. Penn Manor School Dist., 422 F.3d 141, 146 (3d Cir. 2005). A Section 1983 claim against an attorney necessarily fails because counsel is not a state actor. Counsel, whether court appointed or privately retained, does not act under color of law when representing clients in a legal capacity. See Polk County v. Dodson, 454 U.S. 312, 325 (1981) (holding that public defender not acting under color of state law). As a public defender, Defendant Hartye is not considered a “state actor.” He is, instead, a private actor.
For a private actor to “come within the purview of § 1983 liability, plaintiff must show that [the stated] defendants acted under color of state law by pointing to some action, undertaken by them, that is ‘fairly attributable' to the state.” Hynoski v. Columbia Cty. Redevelopment Auth., 941 F.Supp.2d 547, 562 (M.D. Pa. 2013) (citations omitted). To accomplish this, a plaintiff “must show (1) that the defendants' acts were ‘the exercise of some right or privilege created by the State or by a rule of conduct imposed by the state or by a person for whom the State is responsible' and (2) that the defendants may fairly be said to be state actors.” Id. For example, “[a] private party who willfully participates in a joint conspiracy with state officials to deprive a person of a constitutional right acts ‘under color of state law' for purposes of § 1983.” Id.
Although Plaintiff generally alleges that Defendant Hartye participated in a conspiracy to have Plaintiff transferred to Torrance State Hospital, these general allegations of conspiracy are not enough. Plaintiff alleges that Defendant Hartye:
conspiring with A.D.A. Canavan to have plaintiff illegally and involuntarily committed to Torrance State Hospital in violation of the mental health procedures (act 106), when the plaintiff did not meet any of the requirements needed for a 50 P.S. § 7402 commitment order per 50 P.S. § 7402, 7401, 7301 and act 106. Plaintiff Hartye did not give plaintiff notice or an opportunity to object which also violates act 106, and its due process procedures.(Doc. 30, pp. 8-9).
To establish a § 1983 conspiracy claim, a plaintiff “must allege facts that plausibly show: (1) the existence of a conspiracy and (2) deprivation of civil rights in furtherance of the conspiracy by a party to the conspiracy.” Jackson-Gilmore v. Dixon, No. 04-03759, 2005 WL 3110991 (E.D. Pa. Nov. 17, 2005). “To support this showing, the plaintiff must allege plausible facts and not conclusory assertions. This should include (1) the period of the conspiracy; (2) the object of the conspiracy; and (3) certain actions of the alleged conspirators taken to achieve that purpose.” Hankin Family P'ship v. Upper Merion Twp., No. 01-1622, 2012 WL 43599 at *17 (E.D. Pa. Jan. 6, 2012). Vague and conclusory allegations in a civil rights complaint will not survive a motion to dismiss. Rose v. Bartle, 871 F.2d 331 (3d Cir. 1989).
C. PLAINTIFF'S CLAIMS RELATED TO THE DENIAL OF A SPEEDY TRIAL
In his Amended Complaint, Plaintiff alleges:
6.) Defendants Deborah E. Curcillo and John R. Canavan violated Plaintiff's rights under the 6th Amendment of the U.S. Constitution by failing to provide Plaintiff with a speedy trial, and by trying to intentionally circumvent Plaintiff's speedy trial rights with malicious intentions by putting in unconstitutional mental health transfer orders in violation of the Mental Health Procedures Act (Act 106). This has prejudice Plaintiff by causing Plaintiff to loss [sic] contact with key witnesses, and by one of Plaintiff witnesses dying.(Doc. 30, p. 8). I construe this as a claim against Defendants Curcillo and Canavan that Plaintiff's speedy trial rights under the 6th Amendment were violated.
The Sixth Amendment protects the right of “the accused . . . to a speedy and public trial.” U.S. Const. amend. VI. Plaintiff appears to allege that his Sixth Amendment rights were violated, not by requests or orders granting continuances in his criminal case, but because he spent ten days at Torrance State Hospital being evaluated.
“The only remedy for a violation of the Sixth Amendment right to a speedy trial is dismissal of any criminal charges.” Quinn v. Roach, 326 Fed.Appx. 280, 290 (5th Cir. 2009) (citing United States v. MacDonald, 435 U.S. 850, 861 n. 7 (1978)). Although Plaintiff does seek the dismissal of criminal charges or release from prison as relief in his Amended Complaint, this type of relief is not available in a § 1983 case. See e.g., Lundy v. Pocono Mountain Regional Police Department, No. 3:20-CV-1898, 2020 7405407 at *5 (M.D. Pa. Dec. 17, 2020).
I also note that prosecutorial and judicial immunity bar Plaintiff's request for civil damages. See e.g., Medina v. Allentown Police Department, No. 20-5734, 2021 WL 185237 at *4 (E.D. Pa. Jan. 19, 2021) (finding that prosecutorial immunity bars a litigant from seeking civil damages on a 6th Amendment denial of speedy trial claim); Scott v. Miller, No. 08-298, 2009 WL 4937863 (W.D. Pa. Dec. 15, 2009) (finding that a speedy trial act claim was barred by judicial immunity).
D. STATEMENTS MADE BY AZARRIA SIMON
In his Amended Complaint, Plaintiff alleges that:
18.) On 1-6-2020 A.D.A. Canavan and District Attorney Francis T. Chardo gave the alleged victim in my case immunity from prosecution to testify and say that she robbed me at gun point and assaulted me with a firearm, with two other individuals. They stated that I could not file charges behind this robbery and assault. This violates my 14th Amendment to the U.S. Constitution for equal protections of the law.
19.) On 1-8-2020 during Plaintiff's criminal trial A.D.A. Canavan intentionally stopped Plaintiff's Attorney Mrs. Grella from asking or referring to the alleged victim Azarria Simon criminal charges from two years prior in Cumberland county. In the Cumberland county case Ms. Simon was given a deal of immunity from prosecution to testify against two individuals. A Tony Thornton, and Penny Seather, stating “Mr. Seather got her started in prosecution prostitution, ” amongst other things. She also stated “that the Plaintiff got her started in prostitution, ” during his trial on 1-8-2020. A.D.A. Canavan knew of this information and withheld it from the Plaintiff and his Attorney. Intentionally withholding impeachable evidence. ....
10.) Defendants John R. Canavan and Francis T. Chardo violated Plaintiff's 14th Amendment rights to equal protections of the law by giving Azarria Simon immunity from prosecution for robbing and assaulting the Plaintiff with a firearm.
11.) The Dauphin County District Attorneys Office violated Plaintiffs 14th Amendment rights to the U.S. Constitution for equal protections of the law by having a policy that allowed District Attorney's to grant immunity from prosecution to individuals that have committed crimes against U.S. citizens who are not involved in a R.I.C.O. case.
12.) The Dauphin County District Attorney Office violated Plaintiffs 8th Amendment rights to the U.S. Constitution from cruel and unusual punishment by having a policy that allowed District Attorneys to grant immunity from prosecution to an individual that robbed and assaulted the plaintiff with a firearm. This has caused the Plaintiff pain, suffering, and emotional distress.(Doc. 30, p. 6-7, 9-10).
I construe the above-quoted allegations as a claim of selective prosecution. The Third Circuit Court of Appeals has described “selective prosecution” as:
a form of discriminatory law enforcement that has been held to violate the Equal Protection Clause of the Fourteenth Amendment since Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064 (1886), which held officials liable for “illegal discrimination” when they “applied and administered” a facially neutral law “with an evil eye and an unequal hand.”Davis v. Malitzki, 451 Fed.Appx. 228, 234 (3d Cir. 2011). To plead a plausible claim of selective prosecution, a Plaintiff must allege facts demonstrating:
(1) that persons similarly situated were not prosecuted; and (2) that the decision to prosecute was made on the basis of an unjustifiable standard, such as race, religion or “some other arbitrary factor.” Davis, 451 Fed.Appx. at 234 (quoting United States v. Schoolcraft, 879 F.2d 64, 68 (3d Cir. 1989)).Johnson v. Koehler, No. 3:14-CV-1490, 2015 WL 1470948 at *15 (M.D. Pa. Mar. 31, 2015).
Plaintiff's selective prosecution claim against Defendants Canavan and Chardo fails for two reasons.
First, the selective prosecution claim falls within the Heck bar. As recently explained in Jackson v. Rosen:
In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court ruled that a constitutional cause of action for damages does not accrue “for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, ” until the plaintiff proves 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.” Id. at 486-87; see also Tayler v. Sanders, Civ. No. 11-1291, 2012 WL 4104871, at *8 (M.D. Pa. Sept. 18, 2012) (citing Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005)) (“‘[A] state prisoner's § 1983 action is barred (absent prior invalidation-no matter 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.'”).
Selective prosecution is a defense to a criminal conviction in Pennsylvania. See Shahid v. Borough of Eddystone, No. 11-2501, 2012 WL 1858954, at *5 n.9 (E.D. Pa. May 22, 2012), affd, 503 Fed.Appx. 184 (3d Cir. 2012). Therefore, Jackson's selective prosecution claim was necessarily resolved by his conviction. See id. “Because a successful selective prosecution civil claim would render a criminal conviction invalid, ” Jackson is barred by Heck from raising that claim until his underlying conviction is reversed, vacated or otherwise impugned. See id. (citing Kramer v. Village of N. Fond du Lac, 384 F.3d 856, 862 (7th Cir. 2004)); Kinder v. Marinez, No. 19-2692, 2019 WL 5445924, at *2 (E.D. Pa. Oct. 23, 2019) (citing Nesblett v. Concord Fed. Prob., No. 13-515, 2014 WL 808848, at *4 (D.N.H. Feb. 28, 2014) (collecting cases and concluding that Heck barred selective prosecution racial bias claim)). Accordingly, the selective prosecution claim must be dismissed without prejudice until such time as Jackson's conviction is vacated, overturned or otherwise impugned.No. 20-2482, 2020 WL 3498131 at *6 (E.D. Pa. June 26, 2020). Plaintiff's criminal conviction has not been overturned. Accordingly, his claim selective prosecution claim is bared by Heck.
Second, Plaintiff's selective prosecution claim fails because, based on the facts alleged, Ms. Simon is not a similarly situated individual. To bring a claim of selective prosecution Plaintiff must allege facts that show he was:
“treated differently from other similarly situated individuals.” Dombrosky v. Stewart, 555 Fed.Appx. 195, 197 (3d Cir. 2014) (citing Dique[ v. N.J. State Police, 603 F.3d 181, 188 (3d Cir. 2010)]). “Persons are similarly situated under the Equal Protection Clause when they are alike in ‘all relevant respects.'” Startzell v. City of Philadelphia, 533 F.3d 183, 203 (3d Cir. 2008) (quoting Nordlinger v. Hahn, 505 U.S. 1, 10 (1992)).Johnson, 2015 WL 1470948 at *16. Third parties or criminal defendants who are cooperating with law enforcement officials are not similarly situated with criminal defendants who are not cooperating with law enforcement. Id. In his Amended Complaint, Plaintiff alleges that Ms. Simon testified in exchange for immunity. Because Ms. Simon was cooperating with law enforcement, she is not a similarly situated individual.
Plaintiff's claim against Defendant Dauphin County District Attorney's Office fails because Defendant Dauphin County District Attorney's Office is not a “person” and cannot be sued under § 1983. Thompson v. Police Dept. of Philadelphia, No. 10-6083, 2011 WL 4835831 at *2 (E.D. Pa. Oct. 12, 2011) (finding that a County District Attorney's Office is not a person that can be sued under § 1983).
E. INEFFECTIVE ASSISTANCE OF COUNSEL
In his Amended Complaint, Plaintiff alleges:
7.) Defendants Bradley Winnick, Joseph F. Hartye, and the Dauphin County Public Defenders Office violated Plaintiff's 6th Amendment rights to the U.S. Constitution to assistance of counsel, by refusing to provide Plaintiff with assistance of counsel. ....
9.) Defendant Bradley Winnick violated Plaintiff's 6th Amendment to the U.S. Constitution for assistance of counsel and Plaintiff's 8th Amendment rights to the U.S. Constitution for cruel and unusual punishment by refusing to remove Joseph F. Hartye from Plaintiff's case after Plaintiff reported the sexual harassment to him on 4-2-2019, and then withdrawing from Plaintiff's case on 6-4-2019, after Plaintiff reported to him that Joseph Hartye was refusing to provide assistance of counsel, by refusing to object and correct violations of Plaintiff's due process rights for the unconstitutional mental health transfer orders that were put in. This has caused Plaintiff pain, suffering, mental and emotional distress, and undue hardship. ....
13.) The Dauphin County public defender office violated plaintiffs 6th Amendment rights to the U.S. Constitution for assistance of counsel by having a policy that allowed public defenders to remain on Plaintiff's case after sexual harassment complaints have been filed against them by Plaintiff. Then allowed the same public defender to refuse to provide assistance of counsel during court hearings and proceedings.
14.) The Dauphin County public defenders office violated the plaintiffs 8th Amendment rights to the U.S. Constitution by having a policy that allowed public defenders to remain on plaintiffs case after sexual harassment complaints have been against them by plaintiff. The allowed the same public defender to refuse to provide assistance of counsel during court hearings and proceedings. This has caused the Plaintiff pain, suffering, mental and emotional distress and an undue hardship.(Doc. 30, pp. 8-9, 10).
Elsewhere in his Amended Complaint, Plaintiff alleges facts related to Defendant Hartye's representation. He alleges that (1) Defendant Hartye was “continuing his court dates against Plaintiff's interest and wishes, ” (Doc. 30, p. 4); (2) Defendant Hartye reported to Plaintiff and Defendant Curcillo that the Public Defender's Office was unwilling to pay the $280 fee to obtain body cam footage of Plaintiff's arrest, Id.; and (3) Plaintiff alleged that on April 2, 2019, Defendant Hartye offered to help Plaintiff obtain the body cam footage and help Plaintiff with his bond “if Plaintiff would do some favors, ” while reaching under the table and attempting to touch Plaintiff's leg. Id.
On April 3, 2019, Plaintiff was interviewed by John F. Goshert from the Dauphin County Criminal Investigation Division. (Doc. 30). Later the same day, Plaintiff wrote to Defendant Winnick about Defendant Hartye's conduct. (Doc. 30, p. 13).
On April 4, 2019, Defendant Curcillo held a hearing to address Plaintiff's allegations against Defendant Hartye. Plaintiff does not allege whether Defendant Hartye was there. He does, however, report that a different attorney (Jessica Bush) from the public defender's office was present, and reported to Defendant Curcillo that Defendant Hartye's representation would not be immediately withdrawn.
On April 15, 2019, Defendant Winnick wrote to Plaintiff in response to a letter. The response is attached to Plaintiff's Amended Complaint and states as follows:
I received your letter dated April 3, 2019, in which you raise certain allegations against your attorney, Joseph F. Hartye, Assistant Public Defender, and request that I assign new counsel to your case. Please be advised that I am in the process of conducting my own internal investigation and will be speaking with the detectives to whom you spoke from the Dauphin County Criminal Investigation Division. If I find merit to your allegations, I most certainly will appoint new counsel or see that new counsel is appointed for you. Thank you for notifying me of the situation and I will be in touch.(Doc. 30, p. 13).
On May 21, 2019, Plaintiff wrote a second letter to Defendant Winnick. On May 30, Defendant Winnick responded. That response is attached to Plaintiff's Amended Complaint and states, in relevant part:
. . . I have completed my review of the entire circumstances of your case as it relates to conflict of interest. Please be aware that I will be filing a petition with the Court of Common Pleas for the appointment of counsel outside of our office based upon a conflict of interest. This petition will be submitted to President Judge Lewis as are all such petitions and the determination as to who is appointed as your counsel will be made by Judge Lewis. Our office will notify you with the name and address of the attorney once we are aware of it.(Doc. 30, p. 14).
As explained in Section IV. B. 3. of this Report, § 1983 imposes civil liability upon any person acting under the color of state law who deprives another individual of any rights, privileges, or immunities secured by the Constitution or laws of the United States. For the same reasons explained in Section IV. B. 3. of this Report, I find that Defendants Winnick and Hartye are not state actors. Therefore, Plaintiff § 1983 claim against them should be dismissed. Furthermore, Defendant Dauphin County Public Defender's Office is not a person and cannot be properly sued under § 1983. See e.g. Dec v. Pennsylvania State Police, No. 2:12-CV-565, 2012 WL 6099078 at *9 (W.D. Pa. Dec. 7, 2012) (holding that a County Public Defender's Office is not a person that can be sued under § 1983). Therefore, Plaintiff's § 1983 claim of ineffective assistance of counsel against Defendant Dauphin County Public Defender's Office should also be dismissed.
F. LEAVE TO AMEND
The Third Circuit has instructed that if a complaint is vulnerable to dismissal for failure to state a claim, the district court must permit a curative amendment, unless an amendment would be inequitable or futile. Grayson v. Mayview State Hosp, 293 F.3d 103, 108 (3d Cir. 2002). In civil rights cases, District Courts are to follow this instruction “even [if] the plaintiff [is] represented by experienced counsel [and] never sought leave to amend.” Shane v. Fauver, 213 F.3d 113, 116 (3d Cir. 2000) (citing Dist. Council 47 v. Bradley, 795 F.2d 310, 316 (3d Cir. 1986)).
In this case, the court has already afforded Plaintiff one opportunity for curative amendment sua sponte. Plaintiff filed an Amended Complaint, but upon review that Amended Complaint does not state a claim upon which relief can be granted. The Court is not required to grant Plaintiff any more opportunities to amend sua sponte.
V. RECOMMENDATION
Accordingly, it is RECOMMENDED that:
(1) Plaintiff's Amended Complaint (Doc. 30) be DISMISSED without leave to amend pursuant to 28 U.S.C. § 1915(e)(2)(b)(ii) for failure to state a claim.
(2) Plaintiff's Motion (Doc. 26) requesting District Judge review of my prior order denying the appointment of counsel should be DENIED as MOOT.
(3) The clerk of court should CLOSE this case.
NOTICE OF LOCAL RULE 72.3
NOTICE IS HEREBY GIVEN that 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.
Ruling on Motions to dismiss, the court generally relies only on the complaint, attached exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007). Because the standards for dismissal for failing to state a claim under 28 U.S.C. § 1915(e) are the same as under a 12(b)(6) motion, the court may consider matters of which it may take judicial notice under 28 U.S.C. §§ 1915(e) and 1915A and under 42 U.S.C. § 1997e(c).” Banks v. Cty. of Allegheny, 568 F.Supp.2d 579, 588 (W.D. Pa. 2008) (citing Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1385 n. 2 (3d Cir. 1994)). Therefore, I take judicial notice of the State court criminal dockets associated with Plaintiff's civil case