Opinion
Civil Action 22-529
04-04-2023
ANTHONY TUSWEET SMITH, Plaintiff, v. PENNSYLVANIA STATE POLICE; JENNIFER ANNE PETERSON-BUCK; LINDA H. BARR; CARSON B. MORRIS; and PENNSYLVANIA ATTORNEY GENERAL, Defendants.
Re: ECF No. 13
J. Nicholas Ranjan District Judge
REPORT AND RECOMMENDATION
MAUREEN P. KELLY UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
Plaintiff Anthony Tusweet Smith brings this pro se civil rights action against the Pennsylvania State Police (“PSP”), the Pennsylvania Attorney General, and Deputy Attorneys General Jennifer Anne Petersen-Buck, Linda H. Barr, and Carson B. Morris. ECF No. 5. Smith asserts claims under 42 U.S.C. §§ 1983, 1985(2), 1986, the Fourteenth Amendment, and claims for malicious prosecution and fabrication of evidence related to his 2002 conviction for aggravated assault and attempted homicide. He also alleges an apparent First Amendment access of courts claim related to an appeal of his sixth state court petition for post-conviction relief. ECF No. 5. Defendants have filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) and Brief in Support. ECF Nos. 13 and 14. Plaintiff has filed his response. ECF No. 21.
For the following reasons, it is respectfully recommended that the Court grant the Motion to Dismiss and dismiss this action.
II. REPORT
A. FACTUAL AND PROCEDURAL BACKGROUND
This lawsuit is Smith's third federal attack on his 2002 state conviction for aggravated assault and criminal attempt to commit homicide, and arises after the denial of six state court petitions for post-conviction relief and the dismissal of two private criminal complaints against prosecutors and police. In many of these actions, Smith alleged Defendants' misconduct in failing to provide Smith or his counsel exculpatory evidence related to the chain of custody of evidence introduced at trial. In this action, Smith again alleges that physical evidence introduced at trial against him “pertain[s] to different investigations of the Pa. State Police.” ECF No. 5 ¶ 3. Smith concedes he has filed multiple challenges “against this evidence” and that Defendants have failed to provide the “PSP-PRI [Property Record of Incident]” documentation that Smith contends would be exculpatory. Id. Smith adds that on February 15, 2019, he received a copy of a privately obtained medical opinion that he contends would prove exculpatory. The opinion contradicts testimony by at least one witness that the victim sustained a grazing gunshot wound. Id. ¶ 4. Smith contends that this “new evidence” was the basis of a prior PCRA petition that Morris “litigated against” “and that Morris “did not disclose the exculpatory material therein.” Id.
See Smith v. Gilmore, No. 15-cv-00313, 2015 WL 4389292 (W.D. Pa. Jul. 13, 2015) (dismissing Smith's Petition for Writ of Habeas Corpus as time barred and because Smith failed to establish that he was entitled to the miscarriage of justice exception. Upon consideration of Plaintiff's claims of “new, reliable evidence not available at trial” related to the chain of custody of Commonwealth exhibits introduced at trial, Chief Judge Hornak determined “that the claimed discrepancy [] is not of such an evidentiary quality that [Smith] can show that no reasonable juror would have convicted him in light of the new evidence he posits.”). See also Smith v. SCI-Greene, No. 16-1124 (W.D. Pa.) (ECF No. 1) (Jul. 27, 2016) (Petition for Writ of Habeas Corpus asserting that the Commonwealth “failed to disclose exculpatory records” related to the chain of custody of evidence presented at trial). No. 16-1124 was closed on August 8, 2016, pursuant to a deficiency order directing Smith to move to proceed in forma pauperis or pay a $5 filing fee.
Smith also alleges that in August 2020, he was transferred from the State Correctional Institution at Rockview (“SCI - Rockview”) to the State Correctional Institution at Camp Hill (“SCI - Camp Hill”). Id. ¶ 5. During the transfer, his typewriter was destroyed and he was housed in “solitary confinement” without access to his legal property. Id. Smith contends that the state trial court denied his PCRA petition and his ability to appeal the denial was obstructed because he could not access his legal property. Id. Smith does not attribute the alleged obstruction of his appeal to any Defendant named in this action.
Smith states that he intends to file additional private criminal actions against Defendants for their failure to disclose exculpatory records related to his conviction. Id. ¶ 6. However, his anticipated litigation is obstructed by Defendants' ongoing failure to provide him the evidence he seeks. Id.
Based on these allegations, Smith brings claims against Defendants pursuant to Section 1983 for malicious prosecution and fabrication of evidence, and for the violation of his Fourteenth Amendment rights. Id. at 2. Smith also alleges claims for conspiracy to obstruct justice under 42 U.S.C. §§ 1985(2) and 1986. Id. Smith seeks injunctive relief in the form of an order requiring Defendants to “provide the exculpatory records.” Id. at 4. Smith also seeks monetary compensation. Id.
Defendants have filed the pending Motion to Dismiss and assert that Smith fails to state a claim for relief because: (1) his claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994); (2) collateral estoppel bars his claims; (3) Smith's claims against Defendants in their official capacities are barred by the Eleventh Amendment; (4) Smith's claims against the Deputy Attorneys General Defendants are barred by application of absolute prosecutorial immunity; and (5) Smith fails to plead facts sufficient to state any claim against Defendants. ECF No. 14 at 7-14. Smith has filed a Response to Defendants Motion to Dismiss. ECF No. 21. The motion is ripe for consideration.
B. STANDARD OF REVIEW
In assessing the sufficiency of a complaint pursuant to a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must accept as true all material allegations in the complaint and all reasonable factual inferences must be viewed in the light most favorable to the plaintiff. Odd v. Malone, 538 F.3d 202, 205 (3d Cir. 2008). The court, however, need not accept bald assertions or inferences drawn by the plaintiff if they are unsupported by the facts set forth in the complaint. See Cal. Pub. Employees' Ret. Sys. v. Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the court accept legal conclusions set forth as factual allegations. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rather, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Thus, the United States Supreme Court has held that a complaint is properly dismissed under Fed.R.Civ.P. 12(b)(6) where it does not allege “enough facts to state a claim to relief that is plausible on its face,” id. at 570, or where the factual content does not allow the court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (finding that, under Twombly, “labels and conclusions, and a formulaic recitation of the elements of a cause of action” do not suffice but, rather, the complaint “must allege facts suggestive of [the proscribed] conduct” and that are sufficient “to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s]” of his claim).
Pro se pleadings and filings, “however inartfully pleaded,” must be held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972). If the court can reasonably read pleadings to state a valid claim on which the litigant could prevail, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax, and sentence construction, or the litigant's unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982); U.S. ex rel. Montgomery v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969) (A “petition prepared by a prisoner ... may be inartfully drawn and should ... be read ‘with a measure of tolerance'”); Freeman v. Department of Corr., 949 F.2d 360 (10th Cir. 1991). Under our liberal pleading rules, a district court should construe all allegations in a complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997) (overruled on other grounds); see also Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (discussing Fed.R.Civ.P. 12(b)(6) standard); Markowitz v. Ne. Land Co., 906 F.2d 100, 103 (3d Cir. 1990) (same). But there are limits to the court's procedural flexibility: “pro se litigants still must allege sufficient facts in their complaints to support a claim ... they cannot flout procedural rules - they must abide by the same rules that apply to all other litigants.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citations omitted). Accordingly, because Plaintiff is a pro se litigant, this Court will consider the facts and make inferences where it is appropriate.
C. DISCUSSION
1. Heck v. Humphrey
Defendants assert that because Smith's 2002 conviction has not been reversed or otherwise called into question, his claims against them are barred by Heck v. Humphrey, 512 U.S. 477, 48687. ECF No. 14 at 9-10.
Smith responds that he seeks to obtain relief for Defendants' failure to comply with the Rules of Professional Conduct, the Attorney General's failure to train and supervise the individual Defendants, and Defendants' failure “to uphold the integrity of the Attorney General Office [through] the concealment of exculpatory material in concert with all accused parties.” ECF No. 21 at 3. Thus, Smith asserts that while his § 1983 claims under the Fourteenth Amendment and for malicious prosecution and fabrication of evidence arise from the alleged withholding of exculpatory evidence before, during, and after trial, adjudication on the merits in this case “will have no effect” on his lapsed conviction,and result only in disclosing evidence that was not a part of the lower court record. Id. at 4. Based on this reasoning, Smith contends a disposition of his claims “will have no effect” on his 2002 conviction. Id. Smith also argues that Defendants have not examined the evidence Smith seeks and therefore a challenge under Heck is premature. Id.
Smith alleges that his sentence has “lapsed.” ECF No. 5 ¶ 6. The Court understands this to mean that he has served his sentence related to his 2002 conviction. ECF No. 5-1 at 1.
Upon review, the Court agrees that Heck bars Smith's claims and thus recommends that the Court grant the Motion to Dismiss.
“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). In Preiser v. Rodriguez, 411 U.S. 475, 500 (1973), “[t]he [United States] Supreme Court created an ‘implicit exception' to § 1983's broad scope for actions that lie at the ‘core' of habeas corpus, id. at 487, 489, [ ], which include any prisoner's claims that challenge the ‘validity of the fact or length of their confinement,' id. at 490.” Grier v. Klem, 591 F.3d 672, 676-77 (3d Cir. 2010).
In Heck v. Humphrey. the Supreme Court “expanded the circumstances in which a prisoner is barred from bringing a § 1983 claim,” Grier, 591 F.3d at 676-77, and held that when a claim to recover damages is presented “for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254.” Heck, 512 U.S. at 487. The bar to § 1983 claims applies to suits for monetary damages arising out of a conviction as well as to claims for injunctive relief.
[Heck] brought a § 1983 action for damages, alleging that he had been unlawfully investigated, arrested, tried, and convicted. Although the complaint in Heck sought monetary damages only, not release from confinement, we ruled that the plaintiff could not proceed under § 1983. Any award in his favor, we observed, would “necessarily imply” the invalidity of his conviction. See [Heck], at 487, 114 S.Ct. 2364. When “a judgment in favor of the plaintiff would necessarily imply the
invalidity of his conviction or sentence,” the Court held, § 1983 is not an available remedy. Ibid. “But if ... the plaintiff's action, even if successful, will not demonstrate the invalidity of [his conviction or sentence], the [§ 1983] action should be allowed to proceed....” Ibid.Skinner v. Switzer, 562 U.S. 521, 533 (2011). See also 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.”).
Despite Smith's characterization of his claims, he seeks damages and injunctive relief for Defendants' failure to produce what he has identified as exculpatory evidence. The United States Supreme Court has held that such claims implicitly challenge the validity of a conviction and thus are barred by Heck. Typically, claims like Smith's are asserted under Brady v. Maryland, 373 U.S. 83 (1963). “Brady proscribes withholding evidence ‘favorable to an accused' and ‘material to [his] guilt or to punishment.'” Skinner, 562 U.S. at 536 (quoting Cone v. Bell, 556 U.S. 449, 451 (2009)).
[A] Brady claim, when successful postconviction, necessarily yields evidence undermining a conviction: Brady evidence is, by definition, always favorable to the defendant and material to his guilt or punishment. See Strickler, 527 U.S., at 296, 119 S.Ct. 1936. And parties asserting Brady violations postconviction generally do seek a judgment qualifying them for “immediate or speedier release” from imprisonment. See Dotson, 544 U.S., at 82, 125 S.Ct. 1242. Accordingly, Brady claims have ranked within the traditional core of habeas corpus and outside the province of § 1983. See Heck, 512 U.S., at 479, 490, 114 S.Ct. 2364 (claim that prosecutors and an investigator had “‘knowingly destroyed' evidence ‘which was exculpatory in nature and could have proved [petitioner's] innocence'” cannot be maintained under § 1983); Amaker v. Weiner, 179 F.3d 48, 51 (C.A.2 1999) (“claim [that] sounds under Brady v. Maryland ... does indeed call into question the validity of [the] conviction”); Beck v. Muskogee Police Dept., 195 F.3d 553, 560 (C.A.10 1999) (same).Skinner, 562 U.S. at 536-37. Thus, absent an exception, Smith's claims related to allegedly exculpatory evidence are barred.
A narrow door may be open under Skinner for a procedural due process claim challenging a post-conviction process that is “so flawed as to be fundamentally unfair or constitutionally inadequate.” Id. But Smith fails to allege any facts giving rise to such a claim and, upon review of his extensive PCRA and federal habeas litigation, he would be unable to do so. See, e.g., Turner v. Dist. Att'y Philadelphia Cnty., No. 22-cv-0491, 2022 WL 1568395, at *5 (E.D. Pa. May 18, 2022) (allegations that plaintiff unsuccessfully sought evidence in an underlying PCRA proceeding are insufficient to state a plausible claim when the plaintiff failed to allege specific facts from which the court could conclude that Pennsylvania's post-conviction relief procedures are fundamentally unfair or inadequate). See also Young v. Philadelphia Cnty. Dist. Attorney's Off., 341 Fed.Appx. 843, 845 (3d Cir. 2009) (“In order for Pennsylvania's procedures to violate due process, they must offend, at minimum, some principle of justice so rooted in the traditions and conscience of our people to be ranked as fundamental, or they must transgress a recognized principle of fundamental fairness in operation. We conclude that Pennsylvania's procedures for post-conviction relief do neither.”) (internal quotations and citations omitted).
In sum, Smith's claims for injunctive relief and monetary damages arising out of Defendants' alleged failure to provide exculpatory evidence are barred under Heck. Therefore, it is recommended that the Court grant Defendants' Motion to Dismiss. Because Smith may reassert his Heck-barred claims in the event his underlying sentence is reversed, vacated, or otherwise invalidated, it is further recommended that dismissal based on Heck be without prejudice.
2. Collateral Estoppel
In the alternative, Defendants argue that collateral estoppel bars Smith's claims. ECF No. 14 at 7-9. Pursuant to the doctrine of collateral estoppel, “once an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action involving a party to the prior litigation.” Howard Hess Dental Lab'ys. Inc. v. Dentsply Int'l, Inc., 602 F.3d 237, 247 (3d Cir. 2010) (internal quotation marks and citation omitted). The proper application of collateral estoppel under Pennsylvania law requires the Court to find: (1) the issue decided in the prior case is identical to the one presented in the later action; (2) there was a final judgment on the merits; (3) the party against whom the plea is asserted was a party or in privity with a party in the prior case; (4) the party or person privy to the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issues in the prior proceeding; and (5) the determination in the prior proceeding was essential to the judgment.” Off, of Disciplinary Couns. v. Kiesewetter, 484, 889 A.2d 47, 51 (Pa. 2005). “Collateral estoppel relieves parties of the cost and vexation of multiple lawsuits, conserves judicial resources, and, by preventing inconsistent decisions, encourages reliance on adjudication.” Id. (citing Shaffer v. Smith, 673 A.2d 872, 875 (Pa. 1996), Allen v. McCurry, 449 U.S. 90, 94 (1980)).
Defendants assert that “the same facts giving rise to Mr. Smith's sixth PCRA petition and two private criminal complaints also underlie this case.... There is no doubt that there was a final judgment on the merits - Mr. Smith was found guilty, his sixth PCRA petition was denied, his two private criminal complaint were dismissed, as were all his numerous appeals.” ECF No. 14 at 9. Smith responds that “the state courts have not had the opportunity to address the Plaintiff's claims as the evidence has been withheld from the state court and the Plaintiff to date.” ECF No. 21 at 3. Thus, Smith contends that collateral estoppel is not properly applied here.
Collateral estoppel is an affirmative defense that in some cases, may be raised in a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Connelly Found. v. Sch. Dist. of Haverford Twp., 461 F.2d 495, 496 (3d Cir. 1972).
In reviewing a Rule 12(b)(6) motion, it is well-established that a court should “consider only the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim.” Lum v. Bank of Am., 361 F.3d 217, 221 n. 3 (3d Cir. 2004). In the context of deciding a Rule 12(b)(6) motion that raises issue preclusion concerns, and where a plaintiff has not included the existence or substance of the prior adjudications in the body of, or attachments to, its complaint, it is axiomatic that a court must still consider the prior adjudication in order to determine whether issue preclusion bars that plaintiff's claims. Thus, we have held that a prior judicial opinion constitutes a public record of which a court may take judicial notice. Id. We have also held, however, that a court may do so on a motion to dismiss only to establish the existence of the opinion, and not for the truth of the facts asserted in the opinion. Id. “‘[A] court that examines a transcript of a prior proceeding to find facts converts a motion to dismiss into a motion for summary judgment.'” Id. (citation omitted).M & M Stone Co. v. Pennsylvania, 388 Fed.Appx. 156, 162 (3d Cir. 2010).
Smith has attached his sixth PCRA petition as an exhibit to his Complaint. ECF No. 5-1 at 19-31. The petition seeks relief related to the identical property records placed at issue in his prior PCRA and habeas petitions, as well as the more recently obtained medical opinion that he asserts establishes his innocence. The trial court's opinion is attached to this Report and Recommendation and reflects that it considered Smith's “new” evidence solely to determine whether it had jurisdiction to evaluate the merits of his untimely claims. To that end, pursuant to Pennsylvania's PCRA statute, Smith was required to plead and prove that “the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence[.]” Commonwealth v. Smith, Nos. 967-2001, 147-1148, 1151-2005, 294-2005 (CCP Beaver County PA Jan. 21, 2020) (citing 42 Pa. C.S.A. § 9545(b)(1)(ii)). The trial court concluded that Smith “could have procured the medical expert for his trial, but he did not.” Id. at 7. Under these circumstances, the trial court determined “[t]he untimeliness of the petition precludes ... evaluation of the merits.” Id. at 1.
Because the trial court opinion reflects that an evaluation of the merits of Smith's claims was not conducted, collateral estoppel is not applicable. Accordingly, it is recommended that the Court deny the Motion to Dismiss on this alternative basis.
3. Eleventh Amendment
The Corrections Defendants also argue that Eleventh Amendment immunity bars all claims against the Pennsylvania State Police, the Pennsylvania Attorney General, and the Deputy Attorneys General in their official capacities. ECF No. 14 at 10-12. Smith responds that if the Court finds these claims barred by the Eleventh Amendment, he should be granted leave to amend his Complaint to plead that the Defendants acted outside of their traditional roles under the supervision of the Attorney General. ECF No. 21 at 4.
Upon review, Smith's claims for compensatory damages against the PSP, the Attorney General, and the Deputy Attorneys General in their official capacities are barred under the Eleventh Amendment and further amendment in this regard would be futile. Smith's claim for injunctive relief in the form of an order compelling Defendants to provide him with “exculpatory evidence” also is barred because he cannot show that his rights are being violated.
The Eleventh Amendment provides that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. CONST. amend. XI. Eleventh Amendment protections also extend to state agencies and officials of those agencies in their official capacities. Capogrosso v. The Supreme Ct. of New Jersey, 588 F.3d 180, 185 (3d Cir. 2009); Melo v. Hafer, 912 F.2d 628, 635 (3d Cir. 1990).
The PSP is a state agency and so enjoys Eleventh Amendment protections. See Atkin v. Johnson, 432 Fed.Appx. 47, 48 (3d Cir. 2011) (citing Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989)). Smith's claims against the Office of Attorney General are also barred. Malcomb v. Beaver Cnty. Penn. (Prothonotary), 616 Fed.Appx. 44, 45 (3d Cir. 2015) (district court correctly ruled that the Attorney General's Office is immune from suit under the Eleventh Amendment) (citing Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 697 (3d Cir. 1996); Pennsylvania Fed'n of Sportsmen's Clubs, Inc. v. Hess, 297 F.3d 310, 323 (3d Cir. 2002)). Finally, Smith's claims for monetary compensation against the Deputy Attorneys General in their official capacities are barred by the Eleventh Amendment. See Allen v. New Jersey State Police, 974 F.3d 497, 506 (3d Cir. 2020) (“[A] suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office. As such, it is no different from a suit against the State itself.”).
Eleventh Amendment immunity, however, is not absolute. Three exceptions to sovereign immunity exist: (1) abrogation by an act of Congress; (2) waiver by state consent to suit; (3) suits against individual state officials for prospective relief to remedy an ongoing violation. M.A. ex rel. E.S. v. State-Operated Sch. Dist., 344 F.3d 335, 344-45 (3d Cir. 2003) (citing MCI Telecomm Corp. v. Bell Atl. Pennsylvania, 271 F.3d 491, 503 (3d Cir. 2001)).
Smith alleges that the Defendants are continuing to infringe on his civil rights by refusing to provide him “exculpatory evidence” in their possession. ECF No. 5 ¶ 6 (“the defendants continue to withhold these records which obstructs review”). Federal courts can issue an injunction against a state officer if there is evidence of ongoing violations of federal law and the injunction will afford a plaintiff prospective relief from the illegal state action. Berthesi v. Pennsylvania Bd. of Prob., 246 F.Supp.2d 434, 438 (E.D. Pa. 2003) (citing Alden v. Main, 527 U.S. 706, 757 (1999); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 73 (1996); Ex parte Young, 209 U.S. 123, 159-60 (1908)). Thus, the Eleventh Amendment would not bar Smith's claims against the Deputy Attorneys General if the alleged failure to provide “exculpatory evidence” in the form of property chain of custody receipts or gunshot wound evidence (1) violates federal law and (2) an injunction can afford him prospective relief from illegal state action.
In this case, under Heck, Smith cannot establish that his rights have been violated nor can he obtain relief for any allegedly illegal state action. Accordingly, it is recommended that the Court grant the Defendants' Motion to Dismiss on the grounds of the Eleventh Amendment.
4. Prosecutorial Immunity
In the alternative, Defendants move to dismiss the Complaint against Deputy Attorneys General Petersen-Buck, Barr, and Morris because they are entitled to absolute prosecutorial immunity for all claims asserted against them in the Complaint. ECF No. 14 at 12. Plaintiff appears to concede that his claims are within the scope of absolute immunity but asserts that the Deputy Attorneys General “took on administrative and investigative roles.” ECF No. 21 at 4. Thus, Smith asserts that he should be granted leave to amend so that these potential claims may be presented. Id.
The Court agrees that the Complaint fails to allege any claims outside the broad scope of prosecutorial immunity and therefore dismissal on this basis in properly entered. To that end, Smith alleges that Barr distributed PSP property records to his defense team “as evidence collected in [Smith's] case.” ECF No. 5 ¶ 2. Petersen-Buck then “opposed” Smith's claims that the evidence in the PSP property records pertained to other cases, and none of the Defendants have provided the property records to Smith “in accord with [the] duty of exculpatory disclosure.” Id. ¶ 4. Smith attaches to his Complaint property records for the victim's bloody clothing, a glove tested for gunshot residue and vials containing gunshot residue, and a gun identified by a witness as “possibly [the] weapon used to shoot [the] victim.” ECF No. 5-1 at 2-6. Smith alleges that Defendants withheld property records that would show this evidence related to crimes other than those supporting his conviction.
Prosecutors are “immune from damages claims arising from their official acts.” Chandler v. McEvoy, No. 2:20-CV-00026, 2021 WL 7501829, at *6 (W.D. Pa. Nov. 23, 2021), report and recommendation adopted, 2022 WL 456599 (W.D. Pa. Feb. 15, 2022) (quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976)). “Acts intimately associated with the ‘judicial phase of the criminal process' are protected by this immunity to ‘allow a prosecutor to work without being constrained by the “consequences in terms of [her] potential liability in a suit for damages.'” Id. (quoting Yarris v. Cnty. of Delaware, 465 F.3d 129, 135 (3d Cir. 2006)). “This immunity extends to claims based on a prosecutor's ‘failure to disclose exculpatory evidence, so long as they did so while functioning in their prosecutorial capacity.'” Id. (quoting Yarris, 465 F.3d at 137). “Even the deliberate withholding of exculpatory information is included within the ‘legitimate exercise of prosecutorial discretion[.]” Id. (quoting Imbler, 424 U.S. at 431-32 n. 34) (internal quotation marks omitted). Absolute immunity also extends to the withholding of evidence “after trial while the criminal conviction is on appeal.” Yarris, 465 F.3d at 137.
Applying settled law, if any claims are not barred by Heck, Defendants are entitled to absolute immunity for allegedly withholding exculpatory property records for the items identified by Smith in his Complaint. Accordingly, it is respectfully recommended that Smith's claims against the Defendant Deputy Attorneys General be dismissed.
5. Failure to State a Claim
Defendants' final basis for dismissal raises Smith's failure to state a claim for relief under 42 U.S.C. §§ 1983, 1985, or 1986.
Turning first to Smith's claims under 42 U.S.C. § 1985(2), Smith must, among other things, “set forth facts from which a conspiratorial agreement between the defendants can be inferred.” Parrott v. Abramsen, 200 Fed.Appx. 163, 165 (3d Cir. 2006). Civil rights conspiracies require a “meeting of the minds,” and to survive a motion to dismiss, a plaintiff must provide some factual basis to support the existence of the elements of a conspiracy - agreement and concerted action. Startzell v. City of Philadelphia, 533 F.3d 183, 205 (3d Cir. 2008)). Smith fails to plead any facts related to an agreement between Defendants and thus fails to state a claim upon which relief may be granted. Because Smith fails to plead a claim for a § 1985 conspiracy, his claim under § 1986 for failing to prevent a conspiracy also fails. See Clark v. Clabaugh, 20 F.3d 1290, 1295 n.5 (3d Cir. 1994) (“In order to maintain a cause of action under § 1986, the plaintiffs must show the existence of a § 1985 conspiracy.”). Accordingly, it is recommended that Smith's Section 1985 and 1986 claims be dismissed.
Smith's remaining § 1983 claims related to the alleged withholding of exculpatory evidence, including his claims for malicious prosecution and fabrication of evidence, are barred by Heck. To the extent that Smith attempts to assert a First Amendment access to courts claim related to his alleged inability to appeal the dismissal of his sixth PCRA petition, he does not (and cannot) plead facts to state a plausible claim that any Defendant participated in the alleged violation of his rights while he was incarcerated at SCI - Camp Hill. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (“[A] defendant in a civil rights action must have personal involvement in alleged wrongs ... Personal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence. Allegations of participation or actual knowledge and acquiescence, however, must be made with appropriate particularity.”).
Smith also fails to plead facts to state a plausible claim that he lost a chance to pursue a “nonfrivolous” claim. See Monroe v. Beard, 536 F.3d 198, 205-06 (3d Cir. 2008) (a prisoner pursuing a First Amendment access to courts claim must allege facts that show (1) that they suffered an “actual injury”-that they lost a chance to pursue a “nonfrivolous” or “arguable” underlying claim; and (2) that they have no other “remedy that may be awarded as recompense” for the lost claim other than in the present denial of access suit.”). “To that end, prisoners must satisfy certain pleading requirements: The complaint must describe the underlying arguable claim well enough to show that it is ‘more than mere hope,' and it must describe the ‘lost remedy.'” Id. (quoting Christopher v. Harbury, 536 U.S. 403, 416-17 (2002)).
As reflected in the state trial court's opinion dismissing Smith's sixth PCRA petition and in the Opinion of Chief District Judge Mark R. Hornak dismissing Smith's petition for writ of habeas relief, Smith cannot show that he lost a chance to pursue an arguable underlying claim. Both courts determined that with the exercise of due diligence, the evidence Smith seeks was available to him at the time of trial; thus, post-trial relief from his criminal conviction is unavailable. Under these circumstances, Smith has not lost a chance to pursue an arguable underlying claim and so does not state a First Amendment access to courts claim. Moreover, Smith pleads no facts plausibly attributing any alleged loss to a named Defendant.
Because Smith has not stated a cause of action under §§ 1983, 1985 or 1986, it is recommended that the Court grant Defendants' Motion to Dismiss for failure to state a claim.
6. Leave to Amend
“When a plaintiff does not seek leave to amend a deficient complaint after a defendant moves to dismiss it, the court must inform the plaintiff that he has leave to amend within a set period of time, unless amendment would be inequitable or futile.” Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). Here, for the reasons set forth in this Report and Recommendation, until such time as Smith can establish a favorable termination of the criminal proceedings against him, further amendment would be futile as to all claims asserted in his Complaint. However, the Third Circuit has held that when claims are dismissed under Heck, dismissal should be without prejudice. Curry v. Yachera, 835 F.3d 373, 379 (3d Cir. 2016). Thus, it is recommended that the Court grant the Motion to Dismiss and dismiss Smith's Complaint without prejudice.
D. CONCLUSION
For the foregoing reasons, it is respectfully recommended that the Court grant the Motion to Dismiss filed on behalf of the Pennsylvania State Police, Jennifer Anne Peterson-Buck, Linda H. Barr, Carson B. Morris, and the Pennsylvania Attorney General and dismiss the Complaint without prejudice.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections within fourteen days, or seventeen days for unregistered ECF Users. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Any party opposing objections may respond to the objections within fourteen (14) days in accordance with Local Civil Rule 72.D.2.
COMMONWEALTH OF PENNSYLVANIA
v.
ANTHONY TUS WEET SMITH Petitioner/Defendant
NOS. 967-2001, 147-1148, 1151-2005
January 21, 2020
H. KNAFELC, S.J.
RULE 1925 OPINION
Rule 1925(a)(1) of the Pennsylvania Rules of Appellate Procedure provides, in relevant part, that “upon receipt of the notice of appeal, the judge who entered the order giving rise to the notice of appeal, if the reasons for the order do not already appear of record, shall forthwith file of record at least a brief opinion of the reasons for the order, or for the rulings or other errors complained of, or shall specify in writing the place in the record where such reasons may be found.”
Petitioner, Anthony Tusweet Smith, filed a sixth Post-Conviction Relief Act petition in which he alleges he is entitled to relief due to government interference and after discovered evidence. The untimeliness of the petition precludes this Court's evaluation of the merits.
I. Procedural History
The relevant procedural history of Petitioner's case is as follows. On March 15, 2002, following a jury trial, the Defendant was convicted of aggravated assault and criminal attempt to commit homicide. On April 17, 2002, the Defendant was sentenced to 120 to 240 months of incarceration. The judgment of sentence was affirmed by the Superior Court of Pennsylvania on February 3, 2004. The Defendant filed a timely petition for allowance of appeal to the Supreme Court of Pennsylvania, which was denied on July 1, 2004. The Defendant did not seek review by the Supreme Court of the United States.
The Defendant filed his first, counseled, PCRA petition on September 20, 2005. Following a hearing, the PCRA was denied on November 5, 2007, and the Defendant did not appeal. The Defendant filed a second, pro se PCRA petition on June 3, 2008. The petition was dismissed on September 22, 2008. He filed a third PCRA petition on August 28, 2013. His third PCRA petition was found to be untimely, and the Court therefore denied the petition. The Superior Court affirmed the order denying the petition. A Petition for Allowance of Appeal filed with the Pennsylvania Supreme Court was denied on December 30, 2014. Defendant filed his fourth PCRA petition on November 23, 2015. Defendant's fourth PCRA petition was dismissed by order of this Court on February 2, 2016. Defendant timely appealed the order dismissing his fourth PCRA; however, the Superior Court affirmed the order of the PCRA court on September 12, 2016. Defendant filed his fifth PCRA on October 24, 2016 alleging substantially the same matters as his previous PCRA petitions. This Court dismissed Defendant's fifth PCRA as untimely filed. Defendant appealed this Court's decision and the Superior Court affirmed this Court's decision on September 14, 2017. Defendant's petition for allowance of appeal to the Supreme Court was denied by order of March 28, 2018.
Defendant's sixth PCRA petition is now under review. That petition was filed on March 27, 2019, and substantially alleges the same matters as his previous PCRA petitions as well as a claim of after discovered evidence.
The Commonwealth, through the Office of Attorney General, filed a Motion to Dismiss Post-Conviction Relief Act Petition Without a Hearing on June 17, 2019; Defendant filed an Objection to the Commonwealth's Motion on July 23, 2019.
This Court did not file an Opinion regarding the instant PCRA. Defendant filed a Determination of Finality on October 2,2019. This Court did not act on said request within 30 days; therefore, the PCRA was deemed denied by operation of law pursuant to 42 Pa.R.A.P. §341(c)(3). This Court now files this 1925 Opinion setting forth its reasons for why the instant PCRA should be dismissed without a hearing.
While an opinion was drafted regarding the instant PCRA, for unknown reasons it was never filed or docketed. This 1925 Opinion is substantively the same as the previously drafted, but unfiled, opinion.
II. Jurisdiction
A threshold inquiry in reviewing a PCRA petition is whether the reviewing court has jurisdiction to rule on the merits of the Petitioner's claims. The postconviction court only has jurisdiction overly timely PCRA petitions. If a petition is untimely, the postconviction court has no jurisdiction to address substantive claims. Commonwealth v. Lewis, 63 A.3d 1274, 1280-81 (Pa. Super. Ct. 2013) (“if a PCRA petition, neither [the Superior Court] nor the [PCRA] court has jurisdiction over the petition”).
A reviewing court's jurisdiction is defined explicitly by statute. The PostConviction Relief Act provides that any petition, including a second or subsequent petition, must be filed within one year of the date the judgment becomes final, unless an exception applies. 42 Pa. C.S.A. § 9545(b)(1). Unless the petitioner can show that his or her petition is timely, the Court lacks jurisdiction to address the petition's merits. Commonwealth v. Cintora, 69 A.3d 759, 762 (Pa. Super. Ct. 2013).
A petition is timely in two situations: The first is where the petition is filed within one year of the date that the judgment became final. A judgment becomes final for purposes of PCRA review at the conclusion of direct review, including discretionary review of the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review. 42 Pa. Cons. Stat. § 9545(b)(3).
The second is where the Petitioner can plead and prove that one of the statutory exceptions to the one-year time bar is applicable. Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012), The Act lists three exceptions to the one-year rule. An otherwise untimely petition may nevertheless be considered if the petition alleges and the petitioner proves that:
(i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the United States;
(ii) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence;
(iii) the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time provided in this section has been held by that court to apply retroactively.42 Pa. C.S.A. § 9545(b)(1)(i)-(iii); see also Commonwealth v. Fahy, TSI A.2d 214, 218 (Pa. 1999). Any petition invoking one of these exceptions must be filed within 60 days of the date the claim could have been presented. 42 Pa. C.S.A. § 9545(b)(2).
It is clear that the petition sub judice does not comport with these requirements. The Petitioner's judgment became final on or about September 29, 2004, ninety-one days after his Petition for Allows of Appeal was denied by the Supreme Court of Pennsylvania and he declined to seek review by the Supreme Court of the United States. See U.S. Sup. Ct. R. 13(1) (“a petition for a writ of certiorari to review a judgment in any case, civil or criminal, entered by a state court of last resort ... is timely when it is filed with the Clerk of this Court within 90 days after entry of the judgment”). Petitioner therefore had until September 29, 2005, to file a timely PCRA petition.
The Defendant therefore must show that he qualifies under the statute's exceptions. The Defendant has failed to plead and prove any of these statutory exceptions. Defendant's instant petition is substantially the same as his fifth petition, the dismissal of which was upheld by the Superior Court in its order of September 14, 2017, wherein the Superior Court found Defendant “. . . failed to plead and prove any of the statutory exceptions to the PCRA's time bar.” Given the identical nature of the claims in Defendant's fifth and sixth petitions, this Court finds that the issues presented in Defendant's instant petition have been previously litigated and found to be without merit.
Com v. Smith, No. 382 WDA 2017, p. 3 (Sept. 14,2017).
Defendant also claims he qualifies to meet the timeliness requirement under 42 Pa. C.S.A. § 9545(b)(1)(ii). To this end, Defendant produced a signed letter from Dr. Cyril H. Wecht dated October 1, 2018 wherein Dr. Wecht disputes the conclusions of the expert at trial that the victim, Kyle Goosby, suffered a gunshot wound.
Defendant claims that due to issues with obtaining his mail while incarcerated, he did not receive this letter until February 22, 2019. Claiming that this was when he became aware of the letter and its contents, Defendant asserts that he complied with the sixty (60) day filing deadline by filing his present petition on March 27, 2019.
While Defendant may have filed the instant PCRA within the sixty day window, he still failed to plead and prove “the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence[.]”42 Pa. C.S.A. § 9545(b)(1)(h).
A letter from an expert offering a different conclusion regarding physical evidence is not after discovered evidence as contemplated by the PCRA act. Defendant has merely presented an additional expert's opinion regarding established evidence, and Defendant could have procured this expert for his trial, but he did not. Moreover, Defendant is unable to demonstrate that such evidence would alter the outcome of the trial so as to warrant relief, where the evidence of guilt included testimony from the victim that Defendant had a gun, the victim heard a gunshot and suffered a wound to his head, an expert testified that the victim had been shot in the head, and the gun and glove were recovered from the location where Defendant was apprehended. Com. v. Abdul-Salaam, 812 A.2d 497, 571 Pa. 219 (2002) (dismissing PCRA as untimely where defendant was unable to demonstrate that evidence regarding the unreliability of fingerprints would alter the outcome of the trial, where at least four persons who were at scene of crime testified that defendant shot police officer).
Therefore, having found that this Court lacks jurisdiction to grant Petitioner's request for relief, this Court is satisfied that there are no genuine issues concerning any material fact and the Petitioner is not entitled to post-conviction collateral relief. Pa. R. Crim. P. 907(1). The Court thus issues notice of its intent to dismiss the petition. Pursuant to Pennsylvania Rule of Criminal Procedure 907(1), the defendant may respond to this proposed dismissal within 20 days of this notice. An order is attached in compliance with Pennsylvania Rule of Criminal Procedure 907(4).
WHEREFORE, this Court respectfully submits that Defendant's allegations of error are without merit and that his sixth PCRA should be dismissed without hearing.
The Beaver County Clerk of Courts is hereby directed to file the record of these proceedings with the Superior Court of Pennsylvania.