Henderson v. Allegheny Cnty. Court of Records

Full title: ARTHUR HENDERSON, Plaintiff, v. ALLEGHENY COUNTY COURT OF RECORDS, MICHAEL…

Court: United States District Court, W.D. Pennsylvania

Date published: Jun 1, 2023

Civil Action 22-1270 (W.D. Pa. Jun. 1, 2023)

Opinion

Civil Action 22-1270

06-01-2023

ARTHUR HENDERSON, Plaintiff, v. ALLEGHENY COUNTY COURT OF RECORDS, MICHAEL MCGEEVER, DONNA JO MCDANIEL, and SAM SMITH, Defendants.

Patricia L. Dodge United States Magistrate Judge

REPORT AND RECOMMENDATION

Patricia L. Dodge United States Magistrate Judge

I. Recommendation

It is respectfully recommended that the Motion to Dismiss of Defendants Allegheny County Court of Records, Michael McGeever, and Sam Smith (ECF No. 30) be granted. It is further recommended that Defendant Judge Donna Jo McDaniel's Motion to Dismiss (ECF No. 44) be granted.

II. Report

A. Relevant Procedural History

Plaintiff Arthur Lamont Henderson “is presently serving a sixty-one to one-hundred-twenty-two year sentence imposed following his multiple convictions by a jury of rape, involuntary deviate sexual intercourse, aggravated indecent assault, statutory sexual assault, indecent assault, robbery, burglary, possession of a firearm by a prohibited person, possession of an instrument of crime, false imprisonment, unlawful restraint, terroristic threats, theft by unlawful taking, receiving stolen property, intimidation of a victim or witness, unlawful use of an access device and recklessly endangering another person at Nos. CP-02-CR-1873 and 1874-2012 in the Court of Common Pleas of Allegheny County, Pennsylvania.” Henderson v. Capozza, No. 2:18-cv-666, 2019 WL 95824, at *1 (W.D. Pa. Jan. 2, 2019). “This sentence was imposed on March 26, 2013,” and “[o]n December 23, 2014, the judgment of sentence was affirmed and leave to appeal to the Pennsylvania Supreme Court was denied on November 4, 2015.” Id. at *2.

Thereafter, Henderson, in early 2016, filed a Pennsylvania Post Conviction Relief Act, 42 Pa. C.S. §§ 9541 et seq. (“PCRA”) petition which was dismissed on January 6, 2017. Id.; Henderson v. Capozza, No. 2:18-cv-666, Docket No. 11-4 at pp.618-27. On February 5, 2018, the Superior Court affirmed the denial of post-conviction relief. Henderson, 2019 WL 95824, at *3; Henderson v. Capozza, No. 2:18-cv-666, Docket No. 11-5 at pp.949-69.

On May 21, 2018, Henderson filed a petition for a writ of habeas corpus in the United State District Court for the Western District of Pennsylvania. Henderson v. Capozza, No. 2:18-cv-666, Docket No. 1. The petition was dismissed on January 2, 2019. Id., Docket Nos. 13 & 14, and the United States Court of Appeals for the Third Circuit denied Henderson's request for a certificate of appealability on August 16, 2019. Id., Docket No. 20. Separately, in May and June of 2020, Henderson filed motions to compel in both his criminal cases. Pa. Ct. C.P. Allegheny Cty, Docket No. CP-02-CR-0001873-2012, at 18, Motion to Compel (May 12, 2020); id., Appendix to Motion to Compel (June 16, 2020); Pa. Ct. C.P. Allegheny Cty, Docket No. CP-02-CR-0001874-2012, at 22, Motion to Compel (May 12, 2020); id., Appendix to Motion to Compel (June 16, 2020). The appeal of the denial of these motions to compel was treated by the Pennsylvania Superior Court as a second PCRA case. Commonwealth v. Henderson, No. 973 WDA 2020, 2021 WL 2774970 (Pa. Super. Ct. July 1, 2021).

On September 2, 2022, Henderson commenced this pro se, in forma pauperis (“IFP”) lawsuit alleging a violation of the Equal Protection and Due Process Clauses of the Fourteenth Amendment of the United States Constitution pursuant to 42 U.S.C. 1983. (See generally, ECF No. 6.) He also asserted negligence claims against the “Allegheny County Court of Records” (the “DCR”)¹, Michael McGeever (who is the director of the DCR), and Sam Harris (who was the DCR liaison for pro se litigants). (Id. ¶¶ 2-6.) The Honorable Cynthia Reed Eddy granted Henderson's motion for IFP on September 13, 2022. (ECF No. 5.)

1 Henderson refers to the “Allegheny County Court of Records” as the “ACOR.” The entity is properly identified as the “Allegheny County Department of Court Records” (see generally, ECF Nos. 30 & 31), thus the Court will use the abbreviation “DCR.”

On October 13, 2022, Plaintiff filed an amended complaint adding Defendant Judge Donna Jo McDaniel (who was the Common Pleas judge in his criminal case and PCRA case, and who, Henderson alleges, oversees all court records as President Judge). (ECF No. 13 ¶¶ 7-8.) Following Judge Eddy's recusal, this case was assigned to the undersigned on November 4, 2022. (ECF No. 21.) On November 17, 2022, Henderson was granted leave to amend his complaint to correct the defendant named “Sam Harris” to “Sam Smith.” (ECF Nos. 23, 24, & 25.)

On December 21, 2022, Defendants DCR, McGeever, and Smith (the “Clerk's Office Defendants”) moved to dismiss Henderson's Second Amended Complaint (“SAC”). (ECF No. 30.) On February 23, 2023, Defendant Judge McDaniel also moved to dismiss the SAC. (ECF No. 44.) Both motions are fully briefed² and ready for disposition.

2 Both the Clerk's Office Defendants and Henderson filed a reply and surreply, respectively, without leave of the Court (ECF Nos. 41& 42), which contradicts the undersigned's Practices and Procedures. (ECF No. 43.) Notwithstanding, the Court has considered both the reply and surreply in resolving the pending motions, as they both provide additional clarity on the issues and requested relief.

B. Relevant Factual Background

In his SAC, Henderson alleges that the Defendants knew of the failure to file and process his PCRA petition in the DCR. Henderson alleges that the DCR is responsible for all court filings, including receiving, certifying by seal, and processing all documents and records; that the DCR and Defendant McGeever were obligated to file and process all applications for relief and other documents; and that the Clerk's Office Defendants failed to correct a defective filing process. (ECF No. 25 ¶¶ 13-14, 18.)

Henderson alleges that on February 11, 2016, he, through his wife Eboni Le'Sesne³, sent his PCRA petition and a recusal motion to the DCR via certified mail, and that on February 12, 2016, the DCR signed for USPS certified mail. (Id. ¶¶ 24-25.) On April 14, 2016, he received a copy of a PCRA petition and an order from Defendant Judge McDaniel denying his recusal motion and appointing counsel for PCRA review. (Id. ¶ 26.) “After careful examination of the PCRA petition received from” Defendant Judge McDaniel, Henderson noticed that the “petition was different from the PCRA petition sent to” the DCR, in that it was “missing an exhibit with respect to his ‘partiality/misconduct' claim.” (Id. ¶ 27.)

3 The filings use “Le'Sesne” or Lesesne” interchangeably (compare ECF No. 25-1 with ECF No. 25), the Court will use “Le'Sesne” as this is the spelling in her affidavit. (ECF No. 25-1.)

On April 25 and 29, 2016, Le'Sesne, who was asked by Henderson to investigate, visited the DCR and “discovered that there was no record of filing by the [DCR] as to either Plaintiff's PCRA petition and/or [r]ecusal [m]otion.” (Id. ¶¶ 28-29.) Henderson alleges that Defendant Smith knew during “late April and early May of 2016” of Henderson's complaints regarding the record tampering, including the omission of his PCRA petition and recusal motion from the DCR computer system and the fact that an original, certified, time-stamped PCRA petition did not exist. (Id. ¶¶ 21-23.)

On August 31, 2016, the PCRA Court gave notice of its intent to dismiss Henderson's PCRA petition and on September 21, 2016, Henderson responded by “preserving the issue that there was no filing of the PCRA petition in” the DCR. (Id. ¶¶ 30-31.)

On June 13, 2017, while on appeal, Henderson received a record inventory list from the DCR and noticed that that the PCRA petition he sent to the DCR “was void of the record” and the recusal motion “conflicted according to the date record.” (Id. ¶¶ 32-33.)

Henderson filed a “motion to stipulate and supplement the certified record on appeal to the office of the District Attorney” on June 19, 2017. (Id. ¶ 34.) The District Attorney responded on June 23, 2017 that the PCRA petition in his possession did not bear a time stamp from the DCR, (id. ¶ 35 (citing ECF No. 25-3)) but noted that it appeared as an appendix to a docket entry and an exhibit to another docket entry (ECF No. 25-3). On June 27, 2017, the DCR filed a supplemental record in the Superior Court, which, according to Henderson, was “still void of Plaintiff's PCRA petition.” (ECF No. 25 ¶ 36.)

On July 5, 2017, Henderson filed a “motion to stipulate and supplement the certified record on appeal to the lower court,” and on July 17, 2017, he filed a motion to correct transmitted record on appeal. (Id. ¶¶ 37-38.)

Defendant Judge McDaniel entered an order on August 31, 2017 denying Henderson's motion to correct the record and explaining that his “PCRA petition was not void of the record, and that it was available,” and that his “February 2016 PCRA petition was transmitted to the Superior Court in its entirety.” (Id. ¶ 45 (citing ECF No. 25-5).) Henderson alleges that Defendant Judge McDaniel knew that the original certified time stamped PCRA petition did not exist in the DCR computer system or his case file at this time. Following Defendant Judge McDaniel's order, Plaintiff “relaxed his vigilance in pursuing the facts pertaining to the filing(s) of his PCRA petition and Recusal Motion” in the DCR. (Id. ¶ 46.)

Approximately three and half years later, on January 15, 2021, Henderson “discovered” through the record inventory list from the DCR that the “filing of [his] PCRA petition does no[t] exist on file” contrary to Defendant Judge McDaniel's August 31, 2017 Order. (Id. ¶ 47.) On February 4, 2021, he filed an application to the Superior Court to correct the record, and again filed one on February 22, 2021, with both the Superior Court and lower court. (Id. ¶¶ 48-49.)

On May 17, 2021, the DCR filed a supplemental record to the Superior Court which was Henderson alleges was “still void of [his] PCRA petition.” (Id. ¶ 50.) Henderson filed another motion to compel to correct the certified record on April 5, 2021. (Id. ¶ 51.)

The Superior Court affirmed the denial of Henderson's motion to compel the DCR on July 1, 2021,. (Id. ¶ 52.) Thereafter, on December 2, 2021, Henderson filed a request for correction of clerical errors in the DCR which was docketed. (Id. ¶¶ 53-54.)

Defendants never responded to the request for correction of clerical errors, and Henderson alleges that despite his due diligence in attempting to resolve why there is no record of his PCRA petition on the computer, Defendants have acted fraudulently and concealed facts relevant to his PCRA petition such that the statute of limitations must be equitably tolled. (Id. ¶¶ 55-60.)

Henderson seeks declarations that the Defendants violated his rights; an injunction that orders Defendants to stop participating in fraud, provide a certified time stamped copy of his original PCRA Petition, and correct this “defective process by allowing [him] to re-file his PCRA petition”; and the award of monetary damages and fees. (Id. at 13-14.)

C. Clarification of Henderson's Claims against Defendants

Henderson's SAC outlines a variety of claims against Defendants. Count I is a violation of the Equal Protection Clause under the Fourteenth Amendment of the United States Constitution pursuant to 42 U.S.C. § 1983 against all Defendants. (Id. ¶¶ 61-66.) Under Count I is a section entitled “Official Capacity Claim,” which refers to the DCR and “Defendants” and also describes how they intentionally sought to deprive Henderson of his Fourteenth Amendment rights. (Id. ¶¶ 67-71.) Because the Court must liberally construe pro se pleadings, see Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)), the Court will consider Count I as an Equal Protection Claim against each of the Defendants in their individual⁴ and official capacities.

4 Because the DCR is not an individual, Henderson's claim against it will only be considered as an official capacity claim.

Henderson alleges in Count II that all Defendants violated the Due Process Clause under the Fourteenth Amendment of the United States Constitution pursuant to 42 U.S.C. § 1983. (ECF No. 25 ¶¶ 72-78.) He specifies that his claims against Defendant McGeever are in his “official and personal/individual capacity,” whereas his claims against Defendant Smith and Defendant Judge McDaniel are in their “personal/individual capacity” only. (Id. ¶¶ 73-75.) The Court will also consider the claim against the DCR in its official capacity.

In Count III, Henderson alleges that all Defendants committed “Negligence/Due Process” violations. (Id. ¶¶ 79-83.) Because his due process claims are addressed in Count II, the Court will consider Henderson's Count III as a state law negligence claim against each Defendant⁵in their individual⁶ and official capacity.

5 Based on the specific allegations set out in Count III, it does not appear that Defendant Judge McDaniel has personal involvement in such claim; however, the Court will consider her nonetheless because Henderson included her in the title of Count III.

6 As noted above, see footnote 4, Henderson's claim against the DCR will only be considered as an official capacity claim.

D. Legal Standard

Under Federal Rule of Civil Procedure 12(b)(6), a complaint may be dismissed, in whole or in part, for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). In deciding a Rule 12(b)(6) motion, the court must “accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Phillips v. Cty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)). When “accept[ing] all of the complaint's well-pleaded facts as true,” the court “may disregard any legal conclusions.” Id. at 210-11.

To survive a motion to dismiss, the plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows 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). “Though ‘detailed factual allegations' are not required, a complaint must do more than simply provide ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action.'” Davis v. Abington Mem'l Hosp., 765 F.3d 236, 241 (3d Cir. 2014) (quoting Twombly, 550 U.S. at 555). In sum, the plaintiff “must plead facts sufficient to show that her claim has substantive plausibility.” Johnson v. City of Shelby, Miss., 574 U.S. 10, 12 (2014).

To assess the sufficiency of a complaint under Twombly and Iqbal, a court must take three steps: (1) outline the elements the plaintiff must plead to state a claim for relief; (2) peel away those allegations that are no more than conclusions and thus not entitled to the assumption of truth; (3) look for well-pled factual allegations, assume their veracity, and then determine whether they plausibly give rise to an entitlement to relief. See, e.g., Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011). The court's plausibility determination is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.

To defeat a motion to dismiss, it is sufficient to allege a prima facie case, see Castleberry v. STI Grp., 863 F.3d 259, 266 (3d Cir. 2017), but it is not necessary. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 (2002) (cited with approval in Twombly, 550 U.S. at 569-70). The complaint need only allege enough facts to “raise a reasonable expectation that discovery will reveal evidence of [each] necessary element.” Fowler, 578 F.3d at 213 (quoting Phillips, 515 F.3d at 234).

The Supreme Court has stated that “the allegations of [a] pro se complaint [are held] to less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972). If a claim “is vulnerable to 12(b)(6) dismissal, a district court must permit a curative amendment, unless an amendment would be inequitable or futile.” Phillips v. County of Allegheny, 515 F.3d 224, 236 (3d Cir. 2008) (citation omitted).

E. The Statute of Limitations Bars Henderson's Claims

The Court of Appeals for the Third Circuit permits a “limitations defense to be raised by a motion under Rule 12(b)(6) only if the time alleged in the statement of a claim shows that the cause of action has not been brought within the statute of limitations.” Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014) (quoting Robinson v. Johnson, 313 F.3d 128, 134-35 (3d Cir. 2002)) (internal quotation marks omitted). “Thus, a district court may grant a motion under Rule 12(b)(6) raising a limitations defense if ‘the face of the complaint' demonstrates that the plaintiff's claims are untimely.” Stephens v. Clash, 796 F.3d 281, 288 (3d Cir. 2015) (citing Schmidt, 770 F.3d at 249 (quoting Robinson, 313 F.3d at 134-35).)

Here, all of Henderson's claims are governed by a two-year statute of limitations. Randall v. City of Phila. Law Dep't, 919 F.3d 196, 198 (3d Cir. 2019) (“Section 1983 has no statute of limitations of its own.... Rather, it borrows the underlying state's statute of limitations for personal-injury torts,” which in Pennsylvania is two years. (citing 42 U.S.C. § 1983; Wallace v. Kato, 549 U.S. 384, 387 (2007); 42 Pa. C.S. § 5524(1), (7))).

Henderson “acknowledges that on April 29, 2016, he may have been injured, and that the cause of action accrued” and that “at that point was aware that he had a two-year window to file his Civil Rights Action.” (ECF No. 39 at 4.) Henderson concedes that he had until April 29, 2018 to commence an action (id. at 5); however, this case was filed more than four years later, on September 2, 2022. (ECF No. 1.) To address the statute of limitations issue in this case, Henderson argues that equitable tolling applies here because Defendant Judge McDaniel misled him as of August 31, 2017 and he therefore did not know of his injury until January 15, 2021, when he received the record inventory list from the Superior Court and finally realized his PCRA Petition “was void of the record.” (ECF No. 39 at 8.)

Although Henderson's SAC appears to focus on facts related to equitable tolling under Pennsylvania law⁷, both the Clerk's Office Defendants and Henderson address federal tolling principles in their briefs. (ECF No. 31 at 7-8; ECF No. 39 at 5.)

7 (ECF No. 25 ¶ 46 (“Plaintiff, at that point relaxed his vigilance in pursuing the facts pertaining to the filing(s) of his PCRA petition and Recusal Motion” (emphasis added)); id. ¶ 58 (“Plaintiff has established the principle (sic) elements surrounding the fraudulent concealment doctrine/equitable estoppel.”)

“Generally, ‘state tolling principles also govern § 1983 claims' unless they conflict with ‘federal law or policy.'” Montanez v. Sec'y Pa. Dep't of Corr., 773 F.3d 472, 481 (3d Cir. 2014) (citing Kach v. Hose, 589 F.3d 626, 639 (3d Cir. 2009)). As explained by the Third Circuit:

“Pennsylvania's fraudulent concealment doctrine tolls the statute of limitations where ‘through fraud or concealment the defendant causes the plaintiff to relax vigilance or deviate from the right of inquiry.'” Mest v. Cabot Corp., 449 F.3d 502, 516 (3d Cir. 2006) (quoting Ciccarelli v. Carey Canadian Mines, Ltd., 757 F.2d 548, 556 (3d Cir. 1985)). Even if a plaintiff can establish that the defendant engaged in fraudulent concealment, the statute of limitations “begins to run when the injured party knows or reasonably should know of his injury and its cause.” Fine v. Checcio, 582 Pa. 253, 870 A.2d 850, 861 (Pa. 2005).

Id. (emphasis added).

The federal principles of equitable tolling provide that “[e]quitable tolling is generally appropriate where: (1) a defendant actively misleads a plaintiff regarding a cause of action; (2) a plaintiff has been prevented from asserting a claim as a result of other extraordinary circumstances; or (3) a plaintiff has timely asserted [his] claims, but in the wrong forum.” Lloyd v. Ocean Township Counsel, 857 Fed.Appx. 61, 64 (3d Cir. 2021) (citing Lake v. Arnold, 232 F.3d 360, 370 n.9 (3d Cir. 2000)). “In addition, ‘[t]o invoke equitable tolling, [plaintiff] must show that [he] exercised reasonable diligence in investigating and bringing [his] claims.'” Id. (citing New Castle Cty. v. Halliburton NUS Corp., 111 F.3d 1116, 1126 (3d Cir. 1997)).

For the reasons discussed below, Henderson's arguments in favor of tolling fail under Pennsylvania law. Further, “[e]ven assuming federal tolling governs [Henderson's] claims because Pennsylvania law conflicts with § 1983,” Kach, 589 F.3d at 643, Henderson's arguments also fail under federal tolling principles.⁸

8 In addition to the reasons outlined in the body of the R&R below, under federal tolling principles, Henderson's own calculations fall outside of the statute of limitations. As recently summarized by the United States District Court for the Middle District of Pennsylvania:

Tolling a limitations period pauses it or holds it in abeyance; it does not restart the limitations period. See Artis v. District of Columbia, 583 U.S. __, 138 S.Ct. 594, 601, 199 L.Ed.2d 473 (2018) (“Ordinarily, ‘tolled,' in the context of a time prescription . . . means that the limitations period is suspended (stops running) while the claim is sub judice elsewhere, then starts running again when the tolling period ends, picking up where it left off.”); cf. Lozano v. Montoya Alvarez, 572 U.S. 1, 10, 134 S.Ct. 1224, 188 L.Ed.2d 200 (2014) (noting that equitable tolling doctrine “pauses the running of” a statute of limitations). When a period of statutory tolling ends, petitioners must file their petitions within two years minus the time that already accrued towards the end of the limitations period prior to statutory tolling. See Artis, 138 S.Ct. at 601.

Robbins v. Wetzel, No. 1:23-CV-276, 2023 WL 3311851, at *3 (M.D. Pa. May 8, 2023). Henderson admits that “on April 29, 2016, he may have been injured, and that the cause of action accrued” and “at that point was aware that he had a two-year window to file” this action. (ECF No. 39 at 4.) He then argues that from August 31, 2017, the date of Defendant Judge McDaniel's order, he was actively misled such that his claims were tolled. The period between April 29, 2016 and August 31, 2017 equals 489 days. Then, Henderson argues that his claims were equitably tolled until January 15, 2021, after which he filed this case on September 2, 2022. The period between January 15, 2021 to September 2, 2022 equals 595 days. Because, under federal law principles, equitable tolling pauses the statute of limitation, rather than resets it, Henderson filed his Complaint in this action after 1084 days had elapsed (more than two years and eleventh months). This is well past the two-year statute of limitations for all of Henderson's claims.

Henderson's SAC and his briefs in opposition to Defendants' motions argue that he has been diligent in the exercise of his claims and that he has been prevented from asserting a claim as a result of other extraordinary circumstances, specifically Defendant Judge McDaniel's misleading order explaining that his “PCRA petition was not void of the record, and that it was available,” and that his “February 2016 PCRA petition was transmitted to the Superior Court in its entirety.” (ECF No. 25 ¶ 45 (citing ECF No. 25-5).)

As to the diligence element, Henderson argues that he took a series of steps, including sending Le'Sesne to investigate (April 29, 2016); requesting an investigation (September 21, 2016); requesting the District Attorney's Office to stipulate to the fact that there was no PCRA filing (June 19, 2017); requesting that Defendant Judge McDaniel supplement the record on appeal (July 5, 2017); and requesting that the Superior Court and Defendant Judge McDaniel correct the record (July 17, 2017). (ECF No. 39 at 5-6.) However, he asserts that he was met with “resistance, silence, and deceptive fraud,” and was “convinced that an injury may not have occurred.” (Id. at 6.) Henderson is silent on any steps he took after Defendant Judge McDaniel's August 31, 2017 order.

As to the second element, Henderson argues that Defendants manufactured the docket sheet and that Defendant Judge McDaniel “deliberately and intentionally misled Plaintiff via Court Order when stating that she determined that there was a PCRA available and that the record reflect[ed] a difference in filing and scanning dates of PCRA and Recusal Motions in [the DCR].” (ECF No. 39 at 6.) Essentially, Henderson's argument in favor of equitable tolling is that Defendant Judge McDaniel's August 31, 2017 order⁹actively misled him, and his reliance on that order was an extraordinary circumstance. (Id. at 7.)

9 ECF No. 25-5 (denying Henderson's “Motion to Correct the Transmitted Record” and “To Stipulate and Supplement Certified record on Appeal” and stating that “this Court has reviewed the motions and docket and determined that the differences in dates to which the Defendant refers reflect the different filing and scanning dates; It was further determined that the February 16, 2016 ‘Petition for Post-Conviction Relief' was transmitted to the Superior Court in its entirety”).

1. Henderson's Argument that Defendant Judge McDaniel's Order Actively Misled Him such that It Was an Extraordinary Circumstances and that He Relaxed His Vigilance is Contradicted by His Continuous Pursuit of the Same Issues from August 31, 2017 Onward

Henderson advocates for a finding that his claim was tolled until January 15, 2021, because “between 2017 and January 2021, [he] was unaware of the source and/or cause of his injury,” and “[t]he first time [he] recognized that he may have been injured by the Defendant[s'] conduct, was on January 15, 2021, when receiving the record inventory list from the Superior Court” when he “realized that his PCRA petition was void of record.” (ECF No. 49 at 7-8; ECF No. 39 at 8.) However, this narrative is sharply contradicted by Henderson's actions between 2017 and January 2021, which show he was well aware of his alleged injury and its alleged cause much earlier. After August 31, 2017, Henderson continued to actively pursue the same issues that he raises in this case in front of the Superior Court and Commonwealth Court.¹⁰

10 While a court does not generally consider matters outside of the pleadings in ruling on a motion to dismiss, it may consider documents that are “integral to or explicitly relied upon in the complaint” or any “undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document.” In re Asbestos Prods. Liab. Litig. 822 F.3d 125, 133 n.7 (3d Cir. 2016) (internal citations, quotation marks and emphasis omitted). The Court may also consider “exhibits attached to the complaint and matters of public record.” See Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). The Clerk's Office Defendants attached three judicial opinions to their Motion to Dismiss: (1) the Superior Court's decision on Henderson's PCRA appeal (Commonwealth v. Henderson, No. 137 WDA 2017, 2018 WL 700834 (Pa. Super. Ct. Feb. 5, 2018)); (2) the Commonwealth Court's decision on Henderson's appeal of his Right-to-Know request (Henderson v. Allegheny Cnty. Dept of Court Records, No. 411 C.D. 2020, 2021 WL 4129377, at *1 (Pa. Commw. Ct. Sept. 10, 2021)), and (3) the Superior Court's decision on Henderson's motions to compel (Commonwealth v. Henderson, No. 973 WDA 2020, 2021 WL 2774970, at *1 (Pa. Super. Ct. July 1, 2021)). Henderson does not dispute the existence of these opinions or the fact that he sought relief from the Commonwealth Court and Superior Court regarding the same documents at issue in this case. Instead, he seeks to explain his reasons for taking such actions in state court. (ECF No. 42 at 4.)

One example of Henderson's efforts to actively pursue issues regarding the filing (and timestamping) of his PCRA petition was summarized by the Commonwealth Court when ruling on Henderson's Right-to-Know Law, 65 P.S. §§ 67.101-.3104 (“RTKL”) request to the Allegheny County Department of Court Records:

On March 4, 2020, Petitioner allegedly submitted a RTKL request to the [DCR], seeking the following documents related to two criminal cases brought against him in the Court of Common Pleas of Allegheny County (trial court): (1) a time-stamped petition filed by Petitioner pursuant to the Post Conviction Relief Act (PCRA); (2) the trial court's order releasing his case files to a federal agency; (3) the trial court's order sealing one of the case files; (4) the trial court's order directing the clerk of courts' office to transmit a supplemental record in one of the criminal cases to the Prothonotary of the Pennsylvania Superior Court and the “number of pages pertaining to each document sent”; (5) a “transmittal record of [the] PCRA petition [sent] to [the Allegheny County] [D]istrict [A]ttorney's office in relation to” both of the criminal cases; and (6) “a transmittal record of [the] PCRA petition[] and criminal case file[s] sent to [the trial court] judge . . . in relation to” both of the criminal cases.

Henderson v. Allegheny Cty. Dept of Court Records, No. 411 C.D. 2020, 2021 WL 4129377, at *1 (Pa. Commw. Ct. Sept. 10, 2021) (emphasis added)¹². Because the DCR did not respond to the RTKL, Henderson treated it as a “deemed denial” and appealed his request to the Pennsylvania Office of Open Records (“OOR”). Id.

12 Henderson's Petition for Review in the Commonwealth Court attaches his RTKL request to the DCR dated March 4, 2020 that seeks the documents summarized by the Commonwealth Court above. Pa.Commw. Ct., Docket No. 411 CD 2020 (“Right-to-Know Appeal”), Petition for Review (Apr. 21, 2020), pp.8-9. In the Petition for Review, Henderson cites rules related to the removal of court records. Id. p.11. As part of his Petition for Review, Henderson also attaches the same affidavit from his wife, Ms. Le'Sesne, that he filed in this case (compare Right-to-Know Appeal, Petition for Review (Apr. 21, 2020), pp.21-23 with ECF No. 25-1) and the same letter from the District Attorney dated June 23, 2017 stating that the PCRA petition in his possession did not bear a time stamp from the DCR but appeared appendix to a docket entry and an exhibit to another docket entry (compare Right-to-Know Appeal, Petition for Review (Apr. 23, 2020), p.26 with ECF No. 25-3). His Petition for Review also contains a letter to Defendant McGeever dated April 8, 2020 stating that Le'Sesne had been in the DCR to “investigate tampering of [his] PCRA Petition and Recusal/Disqualification Motion [that] was not scanned into [the] computer system or hand copy available in case file” from March to May 2016. Right-to-Know Appeal, Petition for Review (Apr. 21, 2020), pp.27-28 In the same letter, he describes how he sent his sister to the DCR on November 20, 2019 and November 22, 2019 “to get a copy of the PCRA petition.” Id. Henderson provided a consent letter for his sister to receive the documents on November 24, 2019, but he only received a docket sheet of his criminal cases. Id..

On April 6, 2020, the Pennsylvania Office of Open Records (“OOR”) dismissed the appeal because it lacked jurisdiction over the DCR and noted that because “[c]ase records can be requested from judicial records custodians pursuant to the Unified Judicial System's Public Access Policy [(“Policy”)], . . . the Department . . . [wa]s not required to take any further action.” Id. Thereafter, Henderson appealed to the Superior Court on April 21, 2020. Id. at *2; see also, Right-to-Know Appeals Case, Petition for Review Filed (Apr. 21, 2020).

The Commonwealth Court concluded that the OOR properly dismissed Henderson's appeal due lack of jurisdiction and noted that the OOR had “similarly observed” that “case information is generally publicly available pursuant to the Policy. Further, Pennsylvania Rule of Criminal Procedure 113(A) provides that, ‘[u]pon request, the clerk [of courts] shall provide copies' of a criminal case file ‘at [a] reasonable cost.'”¹³ Id. at *2.

13 Although the Commonwealth Court decision is dated September 10, 2021, the OOR decision noting that records are publicly available was issued on April 6, 2020, such that Henderson was on notice that he could access the requested documents a different way at that time.

Further, Henderson's own filings¹⁴ in the Right-to-Know Appeal demonstrate that he was seeking the same records at issue in this case for the same reasons that he brings this civil rights suit. For example, in his initial Petition for Review docketed April 21, 2020, Henderson argues that “[a] determination as to whether the record exist or not [is] vital to petitioner's legal requirements.” Right-to-Know Appeal, Petition for Review (Apr. 21, 2022), p.4. Henderson's reply brief¹⁵in the Right-to-Know Appeal further outlines his reasons for seeking the requested records from the DCR and OOR. See generally, Right-to-Know Appeal, Petitioner's Reply Brief Filed (Sept. 28, 2020). For example, he argues that:

14 Although neither party attached a copy of the filings before the Commonwealth Court in Henderson's Right-to-Know Appeal, on a Rule 12(b)(6) motion, a Court may properly consider “matters of the public record.” Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). The decisions from the Commonwealth Court and Superior Court alone (which the Clerk's Office Defendants did attach to their Motion) contradict Henderson's argument that he “relaxed his vigilance in pursuing the facts pertaining to the filing(s) of his PCRA petition and Recusal Motion” (ECF No. 25 ¶ 46) from August 31, 2017 until January 15, 2021. Henderson's own filings in these cases, which are also matters of the public record, further confirm that he was aware of his injuries at least prior to September 2, 2020 (two years before the filing of this case).

15 Although his Reply brief was filed on September 28, 2020, which would be within the two-year statute of limitation, the reply brief simply articulates the reasons for which Henderson sought such documents in his March 4, 2020 RTKL request to the DCR.

• Request #1, the “original time-stamped PCRA Petition” is “directly connected to an extraordinary breakdown of [the] judicial process by the [DCR] in relation to petitioner's PCRA review, and is also in relation to a[n] usurpation of power of PCRA Judge Donna Jo McDaniel” and that “there is not a certified copy of petition original PCRA Petition scanned in [the DCR's] computer system.” Id. p.2 (citing Id. pp.15-17 (Le'Sesne Affidavit); see also, ECF No. 25-1).

• Request #4, a “copy of [the] order directing [the DCR] to transmit supplemental record to Superior Court prothonotary on 6/27/17,” “would allow [Henderson] to prove that if the record (PCRA petition) sent to [the] Superior Court for review was uncertified, then Judge McDaniel knowingly sent a false record to Superior Court for review, tainting [the] appellate process,” which he also challenged during his appeal when he argued that the “record was void of Petitioner's Certified PCRA Petition.” Right-to-Know Appeal, Petitioner's Reply Brief Filed (Sept. 28, 2020), p.3.

• Request #5, a “copy of [the] transmittal record of [the] PCRA petition to district attorney's office,” would “demonstrate a breakdown of [the] judicial process by the [DCR] by failing to follow procedure and process.” Id.

• Request # 6, a “copy of [the] transmittal record of [the] PCRA Petition and case file sent to Judge Donna Jo McDaniel,” would allow him “[t]o know exactly what[ is] filed in [the] computer system of the [DCR] in relation to docket entries #1 and #2 on 2/16/16 in relation to motion for disqualification/recusal of Judge McDaniel on PCRA review, and Motion for PCRA & In Formal Pauperis” which he alleges “is critical to determine if a fraudulent docket entry has occurred by the [DCR]” and that “a transmittal record of PCRA petition and petitioner's case file is lacking and would allude (sic) to court of records docket sheet, which is void of transmittal from court of records to Judge McDaniel.” Id. p.4.

Henderson's arguments in front of the Commonwealth Court are based on the same facts and exhibits as those filed in this case and make the same arguments, specifically “that his PCRA petition sent to the [DCR] on January 14, 2016, by [Le'Sesne] was altered and tampered with by removing exhibits and replacing them with duplicates of other exhibits related to a different claim/issue” and that the “[DCR] and Judge Donna Jo McDaniel ha[ve] together attempted to conceal a miscarriage of justice and a violation of administrative law of [his] criminal trial by interfering/obstructing petition's PCRA Review.” Id. p.5. Thus, Henderson's actions in his Right-to-Know Appeal, which was docketed on April 21, 2020, directly contradict his narrative that he “relaxed his vigilance in pursuing the facts pertaining to the filing(s) of his PCRA petition and Recusal Motion” as of August 31, 2017 and did not know he was injured (and by whom) until at least January 15, 2021. (ECF No. 25 ¶¶ 46-47; ECF No. 49 at 8.)

Separately, and as a further illustration of how Henderson did not “relax his vigilance,” in May and June of 2020, Henderson filed motions to compel in both of his criminal cases (Pa. Ct. C.P. Allegheny Cty, Docket No. CP-02-CR-0001873-2012, at p.18, Motion to Compel (May 12, 2020)¹⁶; Id., Appendix to Motion to Compel (June 16, 2020); Pa. Ct. C.P. Allegheny Cty, Docket No. CP-02-CR-0001874-2012, at p.22, Motion to Compel (May 12, 2020); Id., at p.23, Appendix to Motion to Compel (June 16, 2020)), seeking the same information from the trial court. The Superior Court summarized these motions as follows:

16 The motions to compel contain substantially similar arguments, facts, and requests as his April 21, 2020 Petition for Review filed in Henderson's Right-to-Know Appeals Case. Henderson sought unsuccessfully to consolidate his appeal of the two orders denying his motions to compel with his Right-to-Know Appeal. See Right-to-Know Appeal, Application for Consolidation (July 9, 2020); id., Order Denying Application for Consolidation (July 27, 2020).

Two years following the dismissal of his first PCRA petition, Henderson filed a motion to compel, which was directed at the Allegheny County Department of Court Records and requested certain documents related to his own case. Henderson filed this motion after first pursuing a “right to know” request against that department and then, after receiving no response, appealing his request to Pennsylvania's Office of Open Records. The Office of Open Records denied Henderson's appeal, indicating that, given the nature of the sought documents, it did not have jurisdiction. The court, in denying his motion to compel, indicated that “[t]he filings requested by the defendant are either public record or do not exist.” Order of Court, 6/23/2020 (denying the motion in two separate orders covering both docket numbers). Henderson appealed this two-order decision, and the relevant parties have complied with their respective obligations under Pa.R.A.P. 1925.

On appeal, Henderson contends the court abused its discretion and/or violated his due process rights when it denied him the materials he sought his motion to compel.

Commonwealth v. Henderson, No. 973 WDA 2020, 2021 WL 2774970, at *1 (Pa. Super. Ct. July 1, 2021) (citing Pa. Ct. C.P. Allegheny Cty, Docket No. CP-02-CR-0001873-2012, at 19, Order Denying Post-Sentence Motion (June 23, 2020); Pa. Ct. C.P. Allegheny Cty, Docket No. CP-02-CR-0001874-2012, at 23, Order Denying Post-Sentence Motion (June 23, 2020)). Thus, the Clerk's Office Defendants argue that Henderson “knew on or prior to June 23, 2020, more than two years before this lawsuit was filed that at least some documents that he demanded may not exist in the [DCR] file.” (ECF No. 41 at 5.)

Henderson responds by admitting that “he motioned the lower court to compel the ([DCR]) to allow him to access (6) requested documents in relation to his case file, including a time-stamped petition filed by Plaintiff pursuant to the [PCRA].” (ECF No. 42 at 4 (emphasis added)). Because he thought the Court's order stating the “[t]he filings requested by the defendant are either public record or do not exist,” was “vague in respects to which document were either public records or did not exist,” he filed a motion to clarify on July 13, 2020 and filed a notice of appeal. (Id.)

As outlined above, Henderson's actions in both his Right-to-Know Appeal and his appeal of his motions to compel sharply contrast with his arguments that he “relaxed his vigilance in pursuing the facts pertaining to the filing(s) of his PCRA petition and Recusal Motion” as of August 31, 2017. (ECF No. 25 ¶ 46.) As demonstrated by Henderson's own admissions in this case (ECF No. 42 at 4), as well as the summary of the Right-to-Know Appeal by the Commonwealth Court, the summary of the motions to compel by the Superior Court, and Henderson's filings in those cases, he continued to actively seek time-stamped copies of his PCRA petition and the documents that were transmitted in his PCRA case. This shows that at the latest, he knew or had reason to know of the alleged issues with his PCRA petition by at least June 23, 2020.¹⁷ See Warner v. B. Pietrini & Sons Constr., 588 Fed.Appx. 106, 107 (3d Cir. 2015) (noting that plaintiff's attempt to obtain relief for his § 1983 claims back in 2008 means that plaintiff knew of his injury and defendant's alleged role in causing it well before filing suit in 2014).

17 “A § 1983 cause of action accrues when the plaintiff knows or has reason to know of the injury that constitutes the basis of his claim.” Warner, 588 Fed.Appx. at 107 (citing Sameric Corp. of Del., Inc. v. City of Phila., 142 F.3d 582, 599 (3d Cir. 1998)). “A claim arising under Pennsylvania law accrues at ‘the occurrence of the final significant event necessary to make the claim suable.'” Ross v. Johns-Manville Corp., 766 F.2d 823, 826 (3d Cir. 1985) (citing Mack Trucks, Inc. v. Bendix-Westinghouse Automotive Air Brake Co., 372 F.2d 18, 20 (3d Cir. 1966)).

Thus, even assuming that the circumstances described in Henderson's SAC entitled him to some tolling starting from Defendant Judge McDaniel's order on August 31, 2017, they do not justify tolling beyond June 23, 2020 (at the latest) in light of the fact that Henderson had continued to actively seek the same documents for the same reasons he is now bringing this claims and, further, had been informed by the OOR as of April 6, 2020 about how to properly acquire his requested documents. In light of his consistent efforts to seek the same documents in this case through various state law mechanisms, the Court rejects Henderson's argument that Defendant Judge McDaniel's order “cause[d] the [Henderson] to relax vigilance or deviate from the right of inquiry,'” Mest v. Cabot Corp., 449 F.3d 502, 516 (3d Cir. 2006) or otherwise “actively misled” Henderson, thereby creating an “extraordinary circumstance” that prevented him from asserting his claims within the statute of limitations. Lloyd, 857 Fed.Appx. at 64.

Thus, it is respectfully recommended that the Court finds that Henderson's claims are time barred and that his claims be dismissed with prejudice, as any further amendment would be futile. Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007) (noting that a court must give a plaintiff the opportunity to amend a deficient complaint, regardless of whether the plaintiff requests to do so, unless doing so would be inequitable or futile); Alvin v. Suzuki, 227 F.3d 107, 121 (3d Cir. 2000) (“An amendment is futile if the amended complaint would not survive a motion to dismiss for failure to state a claim upon which relief could be granted.” (citation omitted).) Here, in light of the fact that Henderson's claims are time barred, amendment would be futile.

Even if Henderson's claims were not time barred, the Court would recommend dismissal based on the reasons set forth below.

F. Even If the Statute of Limitations Did Not Bar Henderson's Claims Against Defendants, His Claims Would Still Be Subject to Dismissal

1. Defendant Judge McDaniel

a. Henderson Does Not Bring Any Official Capacity Claims Against Defendant Judge McDaniel

Henderson's response to Defendant Judge McDaniel's Motion to Dismiss clarifies that he “never intended to sue Defendant McDaniel in her Official capacity. Plaintiff sues Defendant McDaniel in her personal/individual capacity only.” (ECF No. 49 at 11.)

Thus, to the extent Henderson's SAC can be construed as bringing any official capacity claims against Defendant Judge McDaniel (see Section II.C Clarification of Henderson's Claims against Defendants), it is respectfully recommended that such claims be dismissed.

b. Absolute Immunity Bars Any Personal Capacity Claims Against Defendant Judge McDaniel

The doctrine of absolute immunity bars civil suits against judicial officers whose challenged actions were taken during their judicial activities and whose actions were not lacking jurisdiction. Azubuko v. Royal, 443 F.3d 302, 303 (3d Cir. 2006) (citing Mireles v. Waco, 502 U.S. 9, 12 (1991);) and Stump v. Sparkman, 435 U.S. 349, 356-57 (1978)).

“In order for the defendants to succeed on a Rule 12(b)(6) dismissal based on absolute immunity, the allegations of [the] complaint must indicate the existence of absolute immunity as an affirmative defense; the defense must clearly appear on the face of the complaint.” Wilson v. Rackmill, 878 F.2d 772, 776 (3d Cir. 1989).

A two-part inquiry determines whether judicial immunity is applicable. “First, a judge is not immune from liability for nonjudicial actions, i.e., actions not taken in the judge's judicial capacity.” Mireles, 502 U.S. at 11. The court conducts a functional inquiry to determine whether a judicial official has acted in his or her judicial capacity in any particular case. See Forrester v. White, 484 U.S. 219, 227 (1988) (“[I]mmunity is justified and defined by the functions it protects and serves, not by the person to whom it attaches.”); see also, Stump, 435 U.S. at 362 (“the factors determining whether an act by a judge is a ‘judicial' one 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.”).

Henderson's allegations against Defendant Judge McDaniel concern actions she took while presiding over his PCRA case and are judicial acts for which judicial immunity may attach. (See ECF No. 25 ¶¶ 26-27 (alleging that “Plaintiff received a copy of a PCRA petition, and an order from Judge McDaniel denying Recusal Motion, and appointing counsel for PCRA review” and that “[t]he PCRA that Plaintiff received from the judge was missing an exhibit with respect to his ‘partiality/misconduct' claim.”); Id. ¶ 45 (alleging that “Judge Donna Jo McDaniel exercising her supervisory powers over court records, entered an order responding to Plaintiff's motion to correct the record explaining that Plaintiff's PCRA petition was not void of the record, and that it was available; and that Plaintiff's February 2016 PCRA petition was transmitted to the Superior Court in its entirety”) (citing ECF No. 25-5).)

The second part of the two-part inquiry is that “a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction.” Mireles, 502 U.S. at 11; see also Willis v. O'Toole, No. 2:18-CV-00290-DSC, 2019 WL 1585099, at *5 (W.D. Pa. Mar. 8, 2019) report and recommendation adopted by 2019 WL 1585138 (W.D. Pa., Apr. 12, 2019), aff'd by 804 Fed.Appx. 116 (3d Cir. 2020). (“When a judge acts in his or her judicial capacity, as opposed to an executive or administrative capacity, he or she is entitled to absolute immunity from damage claims even when his or her action was erroneous, done maliciously, or exceeded his or her authority” (citing Stump, 435 U.S. at356-57 (1978))).

In such cases, the Court 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.” Gallas v. Supreme Court, 211 F.3d 760, 769 (3d Cir. 2000) (quoting Stump, 435 U.S. at 357 n.6). This is an “an especially stringent standard,” in which it is “generally held that, in light of the broad judicial immunity afforded to judges, ‘where a court has some subject matter jurisdiction, there is sufficient jurisdiction for immunity purposes.'” Willis, 2019 WL 1585099 at *5 (quoting Figueroa v. Blackburn, 208 F.3d 435, 443-44 (3d Cir. 2000).)

The Supreme Court has explained that distinction as follows:

“Where there is clearly no jurisdiction over the subject-matter any authority exercised is a usurped authority, and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible. But where jurisdiction over the subject-matter is invested by law in the judge, or in the court which he holds, the manner and extent in which the jurisdiction shall be exercised are generally as much questions for his determination as any other questions involved in the case, although upon the correctness of his determination in these particulars the validity of his judgments may depend.”

Stump, 435 U.S. at 356 n.6 (quoting Bradley v. Fisher, 80 U.S. 335, 351-52 (1871)); see also, Gallas, 211 F.3d at 771 (holding that “a judge does not act in the clear absence of all jurisdiction when the judge enters an order at least colorably within the jurisdiction of her court even though a court rule or other procedural constraint required another judge to act in the matter”).

Henderson argues that Defendant Judge McDaniel never actually had jurisdiction over Henderson's PCRA petition because his PCRA petition was never properly time-stamped or filed by the DCR in accordance with Pennsylvania law or rules of criminal procedure. (ECF No. 49 at 11-14 (citing 42 Pa. C.S. § 9545 and Pa. R. Crim. P. 901, 903).) In Henderson's view, all actions taken by Defendant Judge McDaniel with respect to his PCRA petition were taken in the in absence of all jurisdiction, and therefore, she is not entitled to absolute immunity. (Id.)

This argument is unpersuasive. Defendant Judge McDaniel, as a Judge of the Court of Common Pleas, had original jurisdiction over Henderson's PCRA case. See 42 Pa.C.S. § 9545. Thus, any dispute over the ultimate factual and legal merit of Henderson's claims regarding the filing and stamping of his PCRA petition go to the “the manner and extent in which the jurisdiction shall be exercised,” which are simply “question for [the judge's] determination as any other questions involved in the case, although upon the correctness of [the judge's] determination in these particulars the validity of [the judge's] judgments may depend.” Stump, 435 U.S. at 356 n.6; see also, id. n. 7 (citing Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 351-52 (1871) for the following example distinguishing between excess of jurisdiction and the clear absence of all jurisdiction over the subject-matter: “if a probate judge, with jurisdiction over only wills and estates, should try a criminal case, he would be acting in the clear absence of jurisdiction and would not be immune from liability for his action; on the other hand, if a judge of a criminal court should convict a defendant of a nonexistent crime, he would merely be acting in excess of his jurisdiction and would be immune.”). Simply put, Henderson's claims against Defendant Judge McDaniel in her individual capacity are barred by absolute immunity.

Thus, it is respectfully recommended that Henderson's individual/personal claims against Defendant Judge McDaniel be dismissed.

2. Claims Against Clerk's Office Defendants

As outlined in Section II.C (Clarification of Henderson's Claims against Defendants), Henderson brings the following official capacity claims against the Clerk's Office Defendants: Count I - Equal Protection against Defendants DCR, McGeever, and Smith; Count II - Due Process against Defendants DCR and McGeever (but not Defendant Smith); and Count III - Negligence against Defendants DCR, McGeever, and Smith. He further asserts the following individual capacity claims against both Defendants McGeever and Smith: Count I - Equal Protection; Count II - Due Process; and Count III - Negligence.

In light of the overlapping legal issues, the Court first turns to the official capacity claims against the Clerk's Office Defendants and will then proceed to the individual capacity claims against Defendants McGeever and Smith.

a. The Status of the Clerk's Office Defendants in Their Official Capacity

Whether the Clerk's Office Defendants, in their official capacity, are part of Allegheny County or part of the Commonwealth of Pennsylvania is not as clear as it may appear on first glance. This issue is important, because if the Clerk's Office Defendants are actually part of the Commonwealth of Pennsylvania, they are entitled to Eleventh Amendment immunity on all official capacity claims (Counts I, II, and III) and also cannot be sued under § 1983, because they are not considered “persons” (Counts I and II). If, on the other hand, the Clerk's Office Defendants are considered part of Allegheny County, then the § 1983 claims (Count I and II) may be considered under Monell v. Department of Social Services, 436 U.S. 658 (1978), and the negligence claim (Count III) may be considered under the Political Subdivision Tort Claims Act (“PSTCA”), 42 Pa. C.S. § 8501 et seq.

This question is “nuanced” and “[c]onflicting decisional law reflects that this issue is far from settled.” Rothermel v. Dauphin Cty., No. 1:16-CV-1669, 2017 WL 4347522, at *10 n.5 (M.D. Pa. Sept. 29, 2017) (noting that “[s]everal district courts have, however, found that a clerk of court is not a ‘person' under Section 1983 because the office is entitled to Eleventh Amendment immunity” and cites “several unpublished district court decisions for the proposition that both offices are part of the Commonwealth court system which share in the state's sovereign immunity.”). On one hand, the “state constitution designates clerks of court ... as ‘[c]ounty officers' rather than state officers.” Rothermel, 2017 WL 4347522, at *10 n.5 (citing Pa. Const. art. 9, § 4); cf. Olenginski v. Cty. of Luzerne, 24 A.3d 1103, 1107 (Pa. Commw. Ct. 2011) (ruling that “[w]hile the records of the courts are part of the judiciary and the prothonotary takes part in the record-keeping, the prothonotary is not a judicial officer but a county officer” and allowing a county to abolish the prothonotary office by home rule charter amendment).

On the other hand, Article V, § 1 of the Pennsylvania Constitution provides that “the judicial power of the Commonwealth shall be vested in a unified judicial system consisting of . courts of common pleas,” and § 15 of the Schedule to Article V specifies that the “clerk of courts shall become the office[] . [of the] clerk of courts of the court of common pleas of the judicial district.” Pa. Const. art. V, § 1l; Pa. Const. art. V, Schedule § 15. Courts in the Third Circuit have approved of treating county court officials, such as a clerks of courts or the prothonotary,¹⁸as equivalent to Commonwealth officials, who, when acting in their official capacities, are entitled to Eleventh Amendment immunity, Taylor v. Motions Unit Clerk of Courts, No. 22-3028, 2023 WL 418061, at *1 (3d Cir. Jan. 26, 2023) (“we have held that Pennsylvania's judicial districts-of which the Motions Unit and Clerk of the Philadelphia Court of Common Pleas are a part-are entitled to Eleventh Amendment immunity as arms of the state”), and are not considered “persons” under § 1983. See Kunkle v. Naugle, 660 Fed.Appx. 132, 135 (3d Cir. 2016) (noting that the “District Court correctly relied upon Eleventh Amendment immunity to dismiss [official capacity] claims under 42 U.S.C. § 1983” against a judge, court administrator, and prothonotary).

18 Because the applicable Pennsylvania law provisions regarding clerks of court are parallel to those relating to prothonotaries, decisions applying the Eleventh Amendment to prothonotaries are persuasive. See Pa. Const. art. V, Schedule to the Judiciary Article § 15 (“prothonotary and clerk of courts shall become the offices of prothonotary and clerk of courts of the court of common pleas of the judicial district”); Pa. Const. art. IX, § 4 (“County officers shall consist of . prothonotaries, clerks of the courts, and such others as may from time to time be provided by law.”); compare 42 Pa. C.S. § 2731(a) (“there shall be one prothonotary for the court of common pleas” in every Pennsylvania county) and 42 Pa. C.S. § 2737(5) (“The office of the prothonotary shall have the power and duty to.[e]xercise the authority of the prothonotary as an officer of the court”) with 42 Pa. C.S. § 2751(a) (“there shall be a clerk of the courts for the court of common pleas” in every Pennsylvania county) and 42 Pa. C.S. § 2757(4) (“The office of the clerk of the courts shall have the power and duty to . [e]xercise the authority of the clerk of the courts as an officer of the court.”).

Based on the Court's review, most of the cases within this Circuit brought against a clerk of court (or the prothonotary) address issues of Eleventh Amendment immunity. Thus, the Court will proceed on this basis. Kunkle v. Naugle, No. 15-896, 2015 WL 7756197, at *7 n.9 (E.D. Pa. Dec. 2, 2015) (noting when apply Eleventh Amendment immunity to the court administrator and prothonotary that “[t]he fact that these officials enjoy the benefit of the Eleventh Amendment does not preclude them from being considered local officials for other purposes.”) However, as outlined further below, the ultimate recommendation-dismissal of the official capacity claims against the Clerk's Office Defendants-would not change if Henderson's claims were considered claims against Allegheny County.

b. If Henderson's Official Capacity Claims against the Clerk's Office Defendants Are Considered Claims against the Commonwealth of Pennsylvania, All Counts Must be Dismissed Pursuant to the Eleventh Amendment and Counts I and II Must Also Be Dismissed Pursuant to § 1983

“[T]he Eleventh Amendment is a jurisdictional bar which deprives federal courts of subject matter jurisdiction.” Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 693 n.2 (3d Cir. 1996) (citing Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 98-100 (1984)). The Eleventh Amendment protects States and their agencies and departments from suit in federal court. See Pennhurst, 465 U.S. at 100 (“[I]n the absence of consent a suit in which the State or one of its agencies or departments is named as the defendant is proscribed by the Eleventh Amendment”); Estate of Logano v. Bergen Co. Prosecutor's Office, 769 F.3d. 850, 857 (3d Cir. 2014) (Eleventh Amendment “[s]overeign immunity extends to state agencies and state officers, ‘as long as the state is the real party in interest.'”) (quoting Fitchik v. N.J. Transit Rail Operations, 873 F.2d 655, 659 (3d Cir. 1989)).

Separately, § 1983 provides a private citizen with the right to bring an action against any person who under color of state law deprives him of a right or privilege secured by the Constitution of the United States. 42 U.S.C. § 1983. This provision does not create substantive rights but instead “provides only remedies for deprivations of rights established elsewhere in the Constitution or federal laws.” Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). “Neither a State nor its officials acting in their official capacities are ‘persons' under § 1983.” Hafer v. Melo, 502 U.S. 21, 26 (1991) (quoting Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989)).

There is a “distinction between the Eleventh Amendment and 42 U.S.C. § 1983 defenses. . .,” “although in some cases they will overlap.” Callahan v. City of Phila., 207 F.3d 668, 669-70 (3d Cir. 2000). As an example, “the Commonwealth would not be a person within section 1983 even if sued in a state court, though it could not raise an Eleventh Amendment objection in such a forum,” but similarly “the Eleventh Amendment may bar an action against a state in a federal court even though it is not brought under section 1983.” Id. (emphasis added)).

Here, the distinction is important because Henderson's § 1983 claims (Counts I and II) against the Clerk's Office Defendants in their official capacity are barred both by the Eleventh Amendment and the fact that these Defendants are not “persons” under § 1983, whereas his negligence claim (Count III) against the Clerk's Office Defendants in their official capacity is barred only by the Eleventh Amendment.

In Allegheny County, the former Prothonotary, Clerk of Courts and Clerk of Orphan's Court were consolidated to form the DCR effective January 7, 2008, Est. of Jackson v. Jackson, No. 1612 WDA 2014, 2015 WL 6951263, at *1, fn. 1 (Pa. Super. Ct. June 26, 2015), and Defendants McGeever and Smith are employees of the DCR. Pennsylvania statutory law provides that “there shall be a clerk of courts for the court of common pleas” in every Pennsylvania county, 42 Pa. C.S. § 2751(a), and each Clerk of Court exercises its authority “as an officer of the court.” 42 Pa. C.S. § 2757(4).

“Although in Pennsylvania prothonotaries and clerks of courts are nominally designated as officials of their respective county..., they are actually officials of Pennsylvania's courts.” O Neal v. Bedford Cty., No. 3:16-cv-62, 2017 WL 244866, at *4 (W.D. Pa. Jan. 19, 2017) (citing 42 Pa. C.S. §§ 2731(a), 2751(a), §§ 2737(5), 2757(5) and Brown v. Levy, 73 A.3d 514, 519 (Pa. 2013)). “Pennsylvania's courts are state rather than local entities.” Id. (citing Callahan, 207 F.3dat 672; Benn v. First Judicial District, 426 F.3d 233, 241 (3d Cir. 2005); and Brown, 73 A.3d at 519.) Therefore, the Clerk's Office Defendants are state officials who part of the Allegheny County Court of Common Pleas. Id.

Because the Allegheny County Court of Common Pleas is an entity of the Unified Judicial System of Pennsylvania pursuant to 42 Pa. C.S. § 301(4), it is part of the Commonwealth government. 42 Pa. C.S. § 102 (the term “Commonwealth government” includes “the courts and other officers or agencies of the unified judicial system”). As part of Pennsylvania's unified judicial system, the Court of Common Pleas of Allegheny County shares in the Commonwealth's Eleventh Amendment immunity. See, e.g., Benn, 426 F.3d at 241 (holding that Pennsylvania's Judicial Districts are entitled to immunity from suit under the Eleventh Amendment). Further, the Commonwealth has not waived its Eleventh Amendment immunity. Laskaris v. Thornburgh, 661 F.2d 23, 25 (3d Cir. 1981).

Thus, all of Henderson's claims against the Clerk's Office Defendants in their official capacity must be dismissed pursuant to the Eleventh Amendment.¹⁹ Taylor, 2023 WL 418061, at *1.

19 Although claims against state officers in their official capacity for prospective relief are not barred by the Eleventh Amendment, this exception, first set forth in Ex parte Young, 209 U.S. 123 (1908), is “narrow,” and “does not permit judgments against state officers declaring that they violated federal law in the past.” Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993) (citing Green v. Mansour, 474 U.S. 64, 73 (1985)); see also Christ the King Manor, Inc. v. Sec'y U.S. Dep't of Health & Human Servs., 730 F.3d 291, 318-19 (3d Cir. 2013). The purpose of this exception is to ensure that state officials cannot employ the Eleventh Amendment to avoid compliance with federal law. Puerto Rico Aqueduct & Sewer Auth., 506 U.S. at 146. Henderson seeks an injunction requiring the parties to stop participating in fraudulent acts, to provide of a certified time-stamped copy of this PCRA petition, and to allow Plaintiff to refile his PCRA (see ECF No. 25 at 14). This relief does not fit within the narrow confines of the Ex parte Young doctrine. It is not prospective as he does not assert any ongoing violations of his rights-rather, he seeks a “do over” of his PCRA petition and subsequent proceedings due to the alleged failure to properly file (and time-stamp) his PCRA petition and an alleged missing exhibit. Because his claim for injunctive relief relates to alleged violations of federal law that occurred in the past, Henderson's claims against the Clerk's Office Defendants in their official capacity must be dismissed pursuant to the Eleventh Amendment.

Additionally, with respect to Henderson's § 1983 claims (Counts I & II), these claims against the Clerk's Office Defendants are claims against the Commonwealth. Thus, the Clerk's Office Defendants (in their official capacities) are not considered “persons” under § 1983. Arndt v. Bortner, No. 14-1993, 2014 WL 5425423, at *2 (M.D. Pa. Oct. 22, 2014) (“As the Clerk of Court, [Defendant] has the protection of Eleventh Amendment immunity ... in his official capacity, and is not a ‘person' for § 1983 purposes in that capacity.”); O'Neal v. Bedford Cty., No. 3:16-cv-62, 2017 WL 244866, at *4 (W.D. Pa. Jan. 19, 2017) (“Pennsylvania [] clerks of courts are therefore not persons subject to suit under § 1983 when sued in their official capacity for monetary damages.”); Kunkle, 660 Fed.Appx. at 135 (noting that the “District Court correctly relied upon Eleventh Amendment immunity to dismiss claims under 42 U.S.C. § 1983” against a judge, court administrator, and prothonotary); Culkin v. Kuhn, No. 13-431, 2014 WL 1414804, at *2-3 (W.D. Pa. Apr. 11, 2014) (noting that the “Pennsylvania's Courts are state entities entitled to Eleventh Amendment immunity,” and that as a result, the “Prothonotary's Office (and thus the Prothonotary in her official capacity) is part of the [] County Court of Common Pleas (i.e., a part of the judicial system and therefore an ‘arm of the state') and is not a ‘person' under § 1983.”); Malcomb v. Beaver Cty. Pa. (Prothonatary), No. 2:13-cv-1772, 2014 WL 3892023, at *2 (W.D. Pa. July 31, 2014) (same); Burford v. Del. Cty., Pa., No. 19-cv-0577-JMY, 2019 WL 7048796, at *5 (E.D. Pa. Dec. 20, 2019) (same for Defendant “Prothonotary/Clerk of the Delaware County Court of Common Pleas”); Leach v. City of Philadelphia, No. 22-CV-1451, 2022 WL 1488557, at *2 (E.D. Pa. May 11, 2022) (same). Thus, Henderson's 42 U.S.C. § 1983 claims against the Clerk's Office Defendants in their official capacity fail both “because the Commonwealth is not a person within section 1983 and because the Eleventh Amendment would bar the court from exercising jurisdiction over the action.” Callahan, 207 F.3d at 669-70.

For these reasons, it is respectfully recommended that any claims (Counts I, II, & III) against the Clerk's Office Defendants in their official capacity be dismissed.

c. Even If Henderson's Official Capacity Claims against the Clerk's Office Defendants Are Considered Claims against the Allegheny County, All Counts Must be Dismissed for Failure to State a Claim

Even if the Court were to consider Henderson's claims as claims against Allegheny County, it is still respectfully recommended that such claims be dismissed for failure to state a claim.

With respect to Henderson's § 1983 claims (Counts I and II) against the Clerk's Office Defendants in their official capacities, “a municipality cannot be held liable solely because it employs a tortfeasor-or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.” Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978). However, a city or county government such as Allegheny County is a “person” for purposes of § 1983 and can be liable only for its own misconduct. Id. at 692, 694. A plaintiff may make a § 1983 claim against a municipality in two ways: “an unconstitutional policy or custom of the municipality led to his or her injuries . . ., or that they were caused by a failure or inadequacy by the municipality that reflects a deliberate or conscious choice.” Forrest v. Parry, 930 F.3d 93, 105 (3d Cir. 2019) (citing Estate of Roman v. City of Newark, 914 F.3d 789, 798-99 (3d Cir. 2019)) (internal citations and quotations omitted).

Henderson's brief in opposition to the Clerk's Office Defendants' Motion makes clear that his Monell claim is based on the custom theory of liability. (ECF No. 39 at 12-13 (“Plaintiff. . . has described a number of instances where Defendants deliberately impeded Plaintiff's rights to access the courts when failing to file and process Plaintiff's PCRA Petition and refusing to correct the defected process. . . the above references. . . clearly identified a ‘custom' that violated Plaintiff's constitutional rights with deliberate intent.”).) Customs are “practices of state officials . . . so permanent and well settled as to virtually constitute law.” Berg v. Cty. of Allegheny, 219 F.3d 261, 275 (3d Cir. 2000) (citations and quotations omitted). In other words, a custom is “an act ‘that has not been formally approved by an appropriate decisionmaker' but that is so widespread as to have the force of law.” Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 584 (3d Cir. 2003) (quoting Bd. of Cty. Comm'rs of Bryan Cty. v. Brown, 520 U.S. 397, 404 (1997)). Here, Henderson's allegations related to the alleged failure to properly file are focused only his own filing and time stamping issues with his PCRA petition and application. (See generally, ECF No. 25.) Without more, these factual allegations do not demonstrate such a “widespread” act that has “the force of law.”

Thus, to the extent Henderson's § 1983 claims (Counts I and II) against the Clerk's Office Defendants in their official capacities would be considered a claim against Allegheny County, such claims should be dismissed.

With respect to Henderson's negligence claim (Count III) against the Clerk's Office Defendants in their official capacities, the PSTCA “immunizes municipalities from liability for all state-law tort claims,” Milbourne v. Baker, No. 11-cv-1866-JD, 2012 WL 1889148, at *4 (E.D. Pa. May 23, 2012), subject to nine enumerated negligence claim exceptions, see 42 Pa. C.S. § 8542, none of which apply in this case. “Furthermore, while there is statutory abrogation of immunity of individual employees for intentional torts, it does not remove the immunity of the local agency.” Weaver v. Franklin Cty., 918 A.2d 194, 200 (Pa. Commw. Ct. 2007) (citing 42 Pa. C.S. § 8550; Ferber v. City of Philadelphia, 661 A.2d 470 (Pa. Commw. Ct. 1995); and Petula v. Mellody, 631 A.2d 762 (Pa. Commw. Ct. 1993)).

Thus, to the extent Henderson's negligence claim against the Clerk's Office Defendants in their official capacities would be considered a claim against Allegheny County, Count III should be dismissed.

3. Individual Capacity Claims against Defendants McGeever and Smith

a. Counts I and II - Equal Protection and Due Process Under the Fourteenth Amendment

i. Counts I and II Are More Properly Characterized as an Access to Court Claim

Although Henderson makes two separate Fourteenth Amendment claims, one under the Due Process Clause and the other under the Equal Protection Clause, a liberal construction of his SAC leads the Court to conclude that his claims are more properly considered as a right of access-to-the-courts claim under the Fourteenth Amendment. Bowens v. Matthews, 765 Fed.Appx. 640, 643 (3d Cir. 2019) (agreeing with the District Court's determination that plaintiff's “primary claim is an access-to-the-courts claim,” where plaintiff alleged that defendants misplaced two reports causing a law clinic to refrain from accepting his case and therefore hindering his ability to raise in a post-conviction motion a claim about an incompetence defense at trial).

The right of access-to-the-courts arises from several different constitutional sources, including the Fourteenth Amendment's Equal Protection and Due Process clause, which Henderson invokes in Counts I and II. Christopher v. Harbury, 536 U.S. 403, 415 n.12 (2002) (collecting Supreme Court decisions finding the right of access-to-the-courts in the Article IV Privileges and Immunities Clause, the First Amendment Petition Clause, the Fifth Amendment Due Process Clause, and the Fourteenth Amendment Equal Protection and Due Process Clauses).

The Supreme Court has identified two categories of access-to-the-courts claims: (1) “claims that systemic official action frustrates a plaintiff or plaintiff class in preparing and filing suits at the present time,” in which “the object of the denial-of-access suit, and the justification for recognizing that claim, is to place the plaintiff in a position to pursue a separate claim for relief once the frustrating condition has been removed” and (2) claims regarding “specific cases that cannot now be tried (or tried with all material evidence), no matter what official action may be in the future,” that look “ backward to a time when specific litigation ended poorly, or could not have commenced, or could have produced a remedy subsequently unobtainable,” with “[t]he ultimate object of these sorts of access claims ... [is] simply the judgment in the access claim itself, in providing relief obtainable in no other suit in the future.” Id. at 412-14; see also, Gibson v. Superintendent of N.J. Dep't of Law & Pub. Safety-Division of State Police, 411 F.3d 427, 441-42 (3d Cir. 2005), overruled on other grounds by Dique v. N.J. State Police, 603 F.3d 181, 188 (3d Cir. 2010).

Because Henderson has already litigated his PCRA case in state court (see Commonwealth v. Henderson, No. 137 WDA 2017, 2018 WL 700834 (Pa. Super. Ct. Feb. 5, 2018) (first PCRA case) and Commonwealth v. Henderson, No. 973 WDA 2020, 2021 WL 2774970 (Pa. Super. Ct. July 1, 2021) (appeal of denial of motions to compel construed as second PCRA case)) and his habeas case in federal court (see Henderson v. Capozza, No. 2:18-cv-666, 2019 WL 95824 (W.D. Pa. Jan. 2, 2019)), his factual allegations fall within the second category. Henderson complains that Defendants failed to (1) time-stamp and properly file his PCRA petition and (2) attach an exhibit to both his PCRA Petition and his Motion for Recusal, which he alleges impeded his constitutional right to “a fair procedure and equal protection” under law. (See generally, ECF No. 25; ECF No. 39 at 14.) In essence, Henderson's argument is that the failure to make such filings impeded the proper consideration of his PCRA case and all subsequent decisions are invalid. Harbury, 536 U.S. at 414-15 (“Whether an access claim turns on a litigating opportunity yet to be gained or an opportunity already lost, the very point of recognizing any access claim is to provide some effective vindication for a separate and distinct right to seek judicial relief for some wrong.”).

Thus, the Court primarily considers Henderson's claims in Count I and II to be a right of access-to-the-courts claim under the Fourteenth Amendment's Equal Protection and Due Process clauses. For the reasons stated below, any right of access-to-the-courts claim should be dismissed. Further, even if Henderson's claims are separately analyzed as Procedural Due Process, Substantive Due Process, and Equal Protection claims under the Fourteenth Amendment, Henderson's claims still fail.

ii. Henderson Fails to State a Valid Right of Access-to-The-Courts Claim as He Has Not Shown Any Prejudice

“Where a plaintiff alleges that the defendants' actions have cost him the opportunity to pursue a past legal claim, he ‘must show (1) that [he] suffered an “actual injury”-that [he] lost a chance to pursue a “nonfrivolous” or “arguable” underlying claim' and (2) that he has no remedy ‘other than in the present denial of access suit.'” Monroe v. Superintendent Coal Twp. SCI, 597 Fed.Appx. 109, 111 (3d Cir. 2015) (citing Monroe v. Beard, 536 F.3d 198, 205-06 (3d Cir. 2008) (citing Harbury, 536 U.S. at 415)).

“[T]o show the sufficiency of the underlying claim, ‘[t]he 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. (citing Beard, 536 F.3d at 205-06 (citing Harbury, 536 U.S. at 416-17)); Jones v. Brown, 461 F.3d 353, 359 (3d Cir. 2006) (stating claim for denial of court access requires plaintiff “show . . . her exercise of the right at issue, the right of accessing the courts to secure judicial relief, has been infringed in some consequential way”), cert. denied, 549 U.S. 1286 (2007).

Henderson fails to show that he suffered an actual injury. First, regardless of whether his PCRA petition was time-stamped and properly filed, his PCRA case was fully litigated both through the state court and the federal courts. Commonwealth v. Henderson, No. 137 WDA 2017, 2018 WL 700834 (Pa. Super. Ct. Feb. 5, 2018) (first PCRA case); Commonwealth v. Henderson, No. 973 WDA 2020, 2021 WL 2774970 (Pa. Super. Ct. July 1, 2021) (appeal of denial of motions to compel construed as second PCRA case); Henderson v. Capozza, No. 2:18-cv-666, 2019 WL 95824 (W.D. Pa. Jan. 2, 2019) (habeas case); see O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (A petitioner must have “invoke[d] one complete round of the State's established appellate review process[,]” in order to satisfy the exhaustion requirement for a habeas claim).

Instead of identifying a lost “chance to pursue a ‘nonfrivoulous' or ‘arguable' underlying claim,” Henderson makes broad assertions that the failure to time-stamp the PCRA petition (which he argues means that his PCRA petition was never filed) is a violation in and of itself. This is insufficient to show prejudice.

Further, to the extent that Henderson brings a right of access-to-the-courts claim based on the fact that Defendants failed to attach an exhibit to both his PCRA Petition and his Motion for Recusal, he has not identified what that document was and how it would change the outcome of his PCRA cases, and as such, he has failed to describe any “lost remedy” from the alleged denial of access to the courts.

Thus, it is respectfully recommended that Henderson's Count I and Count II individual capacity claims against Defendants McGeever and Smith be dismissed.

iii. Even Considering Henderson's Original Articulation of Count I and Count II, He Still Fails to State a Claim

Nonetheless, the Court will consider each of Henderson's claims as articulated in his SAC. For the foregoing reasons, both Count I and Count II fail to state a claim for which relief should be granted.²⁰

20 Additionally, based on the allegations in the Complaint, it is unclear whether Defendant McGeever had any personal involvement in the time stamping of Henderson's PCRA Petition or the failure to file two attachments. (ECF No. 25 ¶ 14 (“the A.C.O.R. and Defendant McGeever were obligated to file and process all applications for relief or other documents relating to matter of the court(s) in the Office of Court Records.”); id. ¶ 15 (“Defendant McGeever was obligated to oversee and ensure the performance of all Court of Records employees.”).) Because “[a] defendant in a civil rights action must have personal involvement in the alleged wrongs” and “liability cannot be predicated solely on the operation of respondeat superior,” this would be another reason to recommend dismissal of the claims against Defendant McGeever. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (citing Parratt v. Taylor, 451 U.S. 527, 537 n.3 (1981)).

1. Count I - Equal Protection

The Clerk's Office Defendants' Motion to Dismiss does not address Henderson's Equal Protection Claim specifically. Nonetheless, it is respectfully recommended that this claim be dismissed under the screening provisions of 28 U.S.C. § 1915.²¹

21 See 28 U.S.C. § 1915(e)(2)(B) (“[T]he court shall dismiss the case at any time if the court determines that . . . the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.”) (emphasis added).

An equal protection claim “can be brought by a ‘class of one' where the plaintiff alleges that [he] has been ‘intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.'” Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam); Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 286 (3d Cir. 2004) (“The Supreme Court has held that a ‘class of one' can attack intentionally different treatment if it is 'irrational and wholly arbitrary.”)).

However, an Equal Protection Claim arises out of a plaintiff was “intentionally treated differently.” Olech, 528 U.S. at 564 (emphasis added). Here, Henderson alleges what appears to be a series of administrative errors and attempts by the Defendants to address such alleged errors, which are insufficient to state a claim. Davidson v. O'Lone, 752 F.2d 817, 826 (3d Cir. 1984) (“negligence claims are not encompassed within § 1983”).

Thus, it is respectfully recommended that, to the extent it asserts a “class of one” equal protection claim against Defendants McGeever and Smith in their individual capacity, Count I be dismissed.

2. Count II - Due Process

Even treating Henderson's Count II as a due process claim, his claim should still be dismissed. First, Henderson does not specify whether this claim is a substantive or procedural due process claim. In his response to the Clerk's Office Defendants' Motion to Dismiss, Henderson only addresses procedural due process in depth but “contends that he has demonstrated in his Second Amended Complaint, that ‘Procedural' and ‘Substantive' Due Process violations has occurred, and he is entitled [to] relief.” (ECF No. 39 at 15.) Thus, the Court will liberally construe his SAC as bringing both a substantive due process and a procedural due process claim. The overarching theme in recommending the denial of both of Henderson's due process claims is that “the Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property.” Daniels v. Williams, 474 U.S. 327, 328 (1986).

A. Procedural Due Process

The first step to analyzing a procedural due process claim “is to determine whether the nature of the interest is one within the contemplation of the ‘liberty or property' language of the Fourteenth Amendment.” Shoats v. Horn, 213 F.3d 140, 143 (3d Cir. 2000) (citing Fuentes v. Shevin, 407 U.S. 67 (1972)). The second step is then “what process is due to protect it.” Id. (citing Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). A plaintiff must have taken advantage of the available procedures unless those procedures are unavailable or patently inadequate. Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000). “[T]he deprivation by state action of a constitutionally protected interest in ‘life, liberty, or property' is not in itself unconstitutional; what is unconstitutional is the deprivation of such interest without due process of law.” Zinermon v. Burch, 494 U.S. 113, 125 (1990).

Defendants argue that Henderson “has failed to define [a liberty or property right] beyond asserting that a document was not filed in a pending PCRA matter.” (ECF No. 31 at 13.) Henderson responds that “Defendants clearly failed to file and process his PCRA Petition (Property), which affected his Constitutional Right (Liberty) to a fair procedure and equal protection under the law.” (ECF No. 39 at 14.) However, Henderson fails to cite any support for how he has a property or liberty right in his time-stamped PCRA Petition (and the alleged exhibit that was not filed).

Even assuming that Henderson has an alleged property or liberty right in his PCRA Petition filing or his exhibt, Henderson has failed to allege that “the procedures available to him did not provide ‘due process of law.'” Hillv. Borough of Kutztown, 455 F.3d 225, 233-34 (3d Cir. 2006) (citing Alvin, 227 F.3dat 116). Henderson filed motions in the trial court related to his time-stamped PCRA Petition, made the same arguments-as part of his PCRA Petition-at the Superior Court level, made a Right-to-Know request with the DCR (which was appealed to the OOR and then appealed to the Commonwealth Court), and filed motions to compel in the trial court (which were also appealed to the Superior Court). Henderson does not identify how these procedures did not provide the due process of law. Cf. Presbury v. Wetzel, 789 Fed.Appx. 294, 295-96 (3d Cir. 2020) (“Procedural due process guarantees that state actors will not deprive an individual of a protected interest in property without due process of law, . . . but the United States Supreme Court has held that meaningful post-deprivation remedies provide sufficient due process for negligent deprivations of property . . . and intentional deprivations of property . . . ”).

Thus, it is respectfully recommended that his procedural due process claim be dismissed.

B. Substantive Due Process

To state a substantive due process claim, Henderson must allege that he has an interest “protected by the substantive due process clause[,] and the government's deprivation of that protected interest shocks the conscience.” Chainey v. Street, 523 F.3d 200, 219 (3d Cir. 2008).

First the Court must “identify the exact contours of the underlying right said to have been violated” and determine “whether the plaintiff has alleged a deprivation of a constitutional right at all.” Nicini v. Morra, 212 F.3d 798, 806 (3d Cir. 2000) (en banc) (quoting Cty. of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998)).

Again, Henderson fails to cite any support for how he has a property or liberty right in his time-stamped PCRA Petition (and the alleged exhibit that was not filed) is protected by the substantive due process clause. Even if he had done so, he has failed to show that the actions of the Defendants shock the conscience; instead, the SAC, at most, alleges repeated bureaucratic missteps, which multiple actors attempted (albeit, unsuccessfully, in Henderson's view) to rectify.

Thus, it is respectfully recommended that his substantive due process claim be dismissed.

b. Count III - Negligence

The Court next considers the individual capacity negligence claims against Defendants McGeever and Smith²². Under the PSTCA, “local agencies are immune from liability for injuries caused by an act of the agency, its employees or any other person” except in the case of nine enumerated negligent acts. Robbins v. Cumberland Cty. Children & Youth Servs., 802 A.2d 1239, 1252 (Pa. Commw. Ct. 2002) (citing 42 Pa. C.S. §§ 8541-42). Under § 8545, employees of local agencies are liable for civil damages on account “caused by acts of the employee which are within the scope of his office or duties only to the same extent as his employing local agency.” 42 Pa. C.S. § 8545 (emphasis added); Kokinda v. Breiner, 557 F.Supp.2d 581, 594 (M.D. Pa. 2008) (“the immunity of the PSTCA also ‘extends to an employee of the City who is liable [in his individual capacity] for civil damages caused by acts which are within the scope of his office or duties.'”) (citing Renk v. City of Pittsburgh, 641 A.2d 289, 292 (Pa. 1994)).)

22 Here, when considering the individual capacity claims against Defendants McGeever and Smith rather than their official capacity claims (which relate to the DCR as part of the unified judiciary system), the Court finds it more appropriate to consider them as county employees in light of the fact that (1) Defendant McGeever, as the Clerk of Courts for Allegheny County, is an elected local official (See Pa. Const. art. IX, §4 (“County officers shall consist of .. clerks of the courts” .. “County officers... shall be elected at the municipal elections and shall hold their offices for the term of four years....” “County officers shall be paid only by salary as provided by law for services performed for the county or any other governmental unit”)) and Defendant Smith, as the clerk in charge of pro se litigants, is an employee of such office. That being said, treating Defendants McGeever and Smith as Commonwealth employees would result in the same outcome. “Under Pennsylvania law, the Commonwealth, its agencies and employees enjoy broad immunity from most state-law tort claims.” Franklin v. McGowen, No. 1:17-CV-1593, 2019 U.S. Dist. LEXIS 153149, at *20 (M.D. Pa. Sep. 6, 2019). “This grant of immunity ‘applies to Commonwealth employees in both their official and individual capacities, so long as the employees are “acting within the scope of their duties.”'” Id. (citing Larsen v. State Employees' Ret. Sys., 553 F.Supp.2d 403, 420 (M.D. Pa. 2008)). “Thus, so long as the agent or employee is acting within the scope of his employment, and none of the [ten] recognized statutory exceptions apply, sovereign immunity will bar any state law claims against” the employee. Id.; 42 Pa. C.S. § 8522. Further, if Defendants McGeever and Smith are treated as Commonwealth employees, there is no exception to immunity in the case of intentional torts like there is for local agency employees. See infra note 23; Colon v. Kenwall, No. 1:18-CV-840, 2018 WL 5809863, at *6 (M.D. Pa. Nov. 6, 2018) (“As a general matter, subject only to [ten] specific statutory exceptions, this sovereign immunity bars state law tort claims like those alleged here, since Commonwealth employees are immune from liability for either negligence or intentional torts.”).

Here, Henderson's negligent claim is based on Defendants McGeever and Smith not stamping and properly filing his PCRA petition with all the exhibits. These actions do not fall under one of the nine enumerated exceptions. Schlayach v. Berks Heim Nursing & Rehab., 434 F.Supp.3d 342, 348 n.5 (E.D. Pa. 2020) (“Section 8542(b) waives immunity for vehicle liability, liability arising from the care, custody, or control of personal property, real property, trees, traffic controls and street lighting, utility service facilities, streets, sidewalks, animals, and liability arising from sexual abuse” for negligent acts by the agency or its employees).

Thus, it is respectfully recommended that Henderson's negligence claim be dismissed with prejudice.²³

23 The parties briefing also addresses whether Defendant McGeever and Smith's conduct amount to willful misconduct. (ECF No. 31 at 10-11; ECF No. 39 at 10-11.) However, Henderson's Count III outlines the basic elements of a negligence claim. (See ECF No. 25 ¶¶ 79-82.) There is no immunity against personal capacity claims for civil damages caused by acts which are within the scope of an office or duties where the local employee has engaged in “a crime, actual fraud, actual malice, or willful misconduct.” 42 Pa. C.S. § 8550; Devivo v. Phila. Parking Auth., Civil Action No. 97-2349, 1997 WL 734002, at *3 (E.D. Pa. Nov. 5, 1997); Walker v. N. Wales Borough, 395 F.Supp.2d 219, 231 (E.D. Pa. 2005) (“Individual public employees sued in their personal capacities do not enjoy immunity under Pennsylvania law for willful, intentional torts.”). “Willful misconduct has been defined by the Pennsylvania Supreme Court as ‘conduct whereby the actor desired to bring about the result that followed or at least was aware that it was substantially certain to follow, so that such desire can be implied.'” Vargas v. City of Phila., 783 F.3d 962, 975 (3d Cir. 2015) (citing Renk v. City of Pittsburgh, 641 A.2d 289, 293 (Pa. 1994) (quoting King v. Breach, 540 A.2d 976, 981 (Pa. 1988)) (internal quotation marks omitted). Although in the last paragraph his negligence claim, Henderson alleges that Defendants' acts “were also intentional, willful, malicious and/or intended to cause serious injury to plaintiff” (ECF No. 25 ¶ 83), even construing his claims liberally, it is unclear which intentional tort he would be bringing against these Defendants.

G. Conclusion

Based on the foregoing, it is respectfully recommended that the Clerk's Office Defendants' Motion to Dismiss (ECF No. 30) and Defendant Judge McDaniel's Motion to Dismiss (ECF No. 44) be granted and Henderson's Complaint be dismissed with prejudice, because Henderson's claims are barred by the statute of limitations.

Should the Court find that the claims are not time barred, it is respectfully recommended that, for the reasons outlined above, the Clerk's Office Defendants' and Defendant Judge McDaniel's Motions (ECF Nos. 30 & 44) be granted because Henderson's Complaint fails to state any claims against the Defendants.

H. Notice

In accordance with the Federal Magistrates Act, 28 U.S.C. § 636(b)(1), and Fed.R.Civ.P. 72(b)(2), the parties are allowed fourteen (14) days from the date of service of this Report and Recommendation to file written objections thereto. Any party opposing the objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011).