Opinion
Civil Action No. 2:18-cv-00496
07-08-2019
RAMON L. MILLIGAN, Plaintiff, v. CORPORAL ALEX JACOB, CORPORAL ADAM CANDIOTO, OFFICER BRIAN PRUNTY, OFFICE ANDREW GUERRIERO, BOROUGH OF MOUNT OLIVER and MOUNT OLIVER POLICE DEPARTMENT Defendants.
cc: Ramon L. Milligan 877 VanKirk St. Clairton, PA 15025 Via First Class U.S. Mail All Counsel of Record Via Electronic Mail
District Judge Bissoon / Magistrate Judge Lisa Pupo Lenihan
ECF No. 25
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION TO DISMISS
I. RECOMMENDATION
For the reasons set forth herein, it is respectfully recommended that Defendants' Motion to Dismiss the Complaint (ECF No. 25) be granted. More specifically, it is recommended that pro se Plaintiff's Complaint, stating §1983 claims for Constitutional violations, including those of his First, Fourth, Fifth, and Fourteenth Amendment rights, and all claims under other allegedly applicable law, be dismissed with prejudice. In so recommending, the Court has thoroughly reviewed the parties' briefings and concluded, giving pro se Plaintiff all due consideration, that further amendment to Plaintiff's Amended Complaint, ECF No. 17, would be futile.
II. FACTUAL AND PROCEDURAL HISTORY; COMPLAINT
A. Factual History
Plaintiff Ramon L. Milligan ("Milligan" or "Plaintiff"), an African American, filed this primarily civil rights action regarding his arrest for offenses related to his refusal to comply with a Borough police officer's directive to leave the scene of Plaintiff's verbal altercation with another individual. More specifically, as stated in relevant portions of Plaintiff's Amended Complaint, ECF No. 17:
Plaintiff was at a Port Authority Bus Stop located across from the Mount Oliver Police Department on Brownsville Road the mid-afternoon of March 28, 2018. He overheard a Caucasian man use a racial expletive to a young African American man and objected. "The third-party and Plaintiff then began a verbal confrontation." ECF No. 17. Whereupon the four Defendant Mount Oliver police officers - Jacob (incorrectly named as "Jacob Alex" rather than "Alex Jacob", see Defendants' Concise Statement of Material Facts ("Defendants' CSMF"), ECF No. 26 at 1), Candioto, Prunty and Guerriero - separated both gentlemen and took their information. The third-party left the altercation area as directed. See ECF No. 17.
The record reflects an incident and arrest date of March 29, 2018. See ECF No. 26-1, 26-2 (Docket Sheets).
Unlike the other man involved, Plaintiff objected to leaving. Plaintiff and Corporal Jacob "went back and forth for some time as the Plaintiff informed [Jacob that Plaintiff] was waiting for a Port Authority bus;" and Jacob "continued his attempt to quiet the Plaintiff and get [him] moving." ECF No. 17. Plaintiff expressly reasserted his dis-inclination to comply with Jacob's directions to refrain from further verbal dispute and leave the area. Jacob then cautioned Plaintiff with arrest to no avail. Plaintiff acknowledges his continued dispute and non-compliance with Jacob, and alleges that he was arrested when in the course of this conduct he asked for Jacob's badge number. Plaintiff was walked across the street to the Police Station where he was charged with counts of Disorderly Conduct, Harassment and Possession (the latter added on Jacob's alleged discovery of marijuana residue in Plaintiff's keychain). Plaintiff remained in custody for 14 days. See ECF No. 17.
Amended Complaint, ECF No. 17 at 4 (relating that Plaintiff told Jacob he was staying until his bus came and "further inform[ed Jacob] he was "not inclined to shut up" because Jacob "apparently didn't want to hear what" Plaintiff "had to say" and that "fortunately [Plaintiff had] Constitutional rights").
See also ECF No. 27 at 7.
The record reflects a criminal disposition date of April 12, 2018 and Plaintiff's entry of summary offense guilty pleas to charges of Disorderly Conduct and Harassment for which costs were assessed. See ECF No. 26; 26-1 and 26-22
B. Procedural History
Plaintiff commenced this civil action on April 17, 2018, with the filing of his motion for leave to proceed in forma pauperis and an accompanying Complaint ECF No. 1; ECF No. 3. Defendants' Motion to Dismiss for Failure to State a Claim was filed June 19, 2018, ECF No. 11. Said Motion was rendered moot when Plaintiff was granted leave to file an Amended Complaint, which was docketed on July 26, 2018. ECF No. 17. See also ECF No. 18 (Order dismissing ECF No. 11 as moot). The pending Motion to Dismiss, together with Defendants' CSMF and Brief in Support, were filed on September 24, 2018. ECF No. 25, 26 and 27, respectively. Plaintiff's Response was filed on October 23, 2018. ECF No. 31. Accordingly, the issues raised in the Defendants' Motion are ripe for disposition.
C. Complaint - Overview
Plaintiff's Amended Complaint brings, with some duplication, fourteen pages of claims, including broad and sometimes vague claims of violations of the following Constitutional rights: Plaintiff's First Amendment Freedom of Speech, Fourth Amendment protection from Unlawful Search and Seizure, Fifth Amendment Right to Liberty, and Fourteenth Amendment Due Process. It also alleges discrimination in a place of public accommodation in violation of the Civil Rights Act of 1964, 42 U.S.C. § 2000(a); claims under Pennsylvania's Dragonetti Act, 42 Pa.C.S.A. §8351; and multiple claims under federal and state criminal statutes that, as discussed below, do not/were not intended to create a private right of action. In his Response, however, Plaintiff appears to express concurrence with dismissal of Defendant Mount Oliver Police Department as a party, and of claims for violation of the Fifth Amendment and 42 Pa.C.S.A. §8351. See ECF No. 31 at 2.
Plaintiff repeatedly distinguishes (1) the issuance of a summons to the gentleman who provided his information and left the scene of the altercation, in compliance with police officer directives, and (2) the initial issuance of a summons but subsequent arrest of Plaintiff who "refus[ed] to move from the bus stop and cease talking." ECF No. 17. Plaintiff premises his claims primarily on beliefs that (a) his conduct "was not subject to arrest," i.e., that it did not meet any probable cause standard for arrest by Jacob; and that (b) his subsequent guilty plea presents no obstacle to his current probable cause challenge. And he premises his claims against the additional police officer and Mount Oliver Defendants by extension, i.e., by allegations of deliberate indifference to his false arrest and by related unspecified deficiencies in hiring and/or training. However, pro se Plaintiff simply misapprehends the law. See, e.g., Whiting v. Bonazza, 545 Fed. Appx. 126, 128 (3d Cir. 2013) (finding police had probable cause to arrest for disorderly conduct under Pennsylvania law where §1983 plaintiff engaged in verbal altercation and continued verbal public unruliness rather than comply with officer's direction to leave scene). As explained below, the Court concludes that no further amendment could raise a cognizable claim under the facts as Plaintiff himself presents them.
See ECF No. 27 at 5 ("All of these claims arise out of his arrest at the bus stop. The facts, as well as nature and styling of the Amended Complaint, make clear that Plaintiff believes that his arrest was unlawful, i.e., he was falsely arrested."). See also Plaintiff's Response, ECF No. 31 at 2 ("The . . . foundation of the complaint is the subjecting to False Arrest and False Imprisonment the Defendants perpetrated upon [Plaintiff] violating PA Common Law.")
III. STANDARD OF REVIEW
The United States Court of Appeals for the Third Circuit summarized the standard to be applied in deciding motions to dismiss filed pursuant to Rule 12(b)(6):
Under the "notice pleading" standard embodied in Rule 8 of the Federal Rules of Civil Procedure, a plaintiff must come forward with "a short and plain statement of the claim showing that the pleader is entitled to relief." As explicated in Ashcroft v . Iqbal, 556 U.S. 662, 678 (2009), a claimant must state a "plausible" claim for relief, and "[a] claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Although "[f]actual allegations must be enough to raise a right to relief above the speculative level," Bell Atlantic Corp . v. Twombly, 550 U.S. 544, 555 (2007), a plaintiff "need only put forth allegations that raise a reasonable expectation that discovery will reveal evidence of the necessary element." Fowler , 578 F.3d at 213 (quotation marks and citations omitted); see also Covington v . Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 117-18 (3d Cir. 2013).Thompson v . Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014).
In addition to the complaint, courts may consider matters of public record and other matters of which a court may take judicial notice, court orders, and exhibits attached to the complaint when adjudicating a motion to dismiss under Rule 12(b)(6). Oshiver v . Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994) (citing 5A Wright and Miller, Federal Practice and Procedure: Civil 2d, § 1357; Chester County Intermediate Unit v . Pennsylvania Blue Shield, 896 F.2d 808, 812 (3d Cir. 1990)). A court may also consider indisputably authentic documents. Spruill v . Gillis, 372 F.3d 218, 223 (3d Cir. 2004); Pension Ben . Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993); Golden v . Cook, 293 F. Supp.2d 546, 551 (W.D. Pa. 2003) ("[C]ourts are permitted to consider matters of which they may take judicial notice, including records and reports of administrative bodies, and publicly available records and transcripts from judicial proceedings 'in related or underlying cases which have a direct relation to the matters at issue.'") (citations omitted). More specifically, the Court may take judicial notice of the State court records without converting a 12(b)(6) motion to dismiss into a motion for summary judgment.
When considering pro se pleadings, a court must employ less stringent standards than when judging the work product of an attorney. Haines v . Kerner, 404 U.S. 519, 520 (1972). When presented with a pro se complaint, the court should construe the complaint liberally and draw fair inferences from what is not alleged as well as from what is alleged. Dluhos v . Strasberg, 321 F.3d 365, 369 (3d Cir. 2003). In a § 1983 action, the court must "apply the applicable law, irrespective of whether the pro se litigant has mentioned it by name." Higgins v . Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (quoting Holley v . Dep't of Veteran Affairs, 165 F.3d 244, 247-48 (3d Cir. 1999)). See also Nami v . Fauver, 82 F.3d 63, 65 (3d Cir. 1996) ("Since this is a § 1983 action, the [pro se] plaintiffs are entitled to relief if their complaint sufficiently alleges deprivation of any right secured by the Constitution."). Notwithstanding this liberality, pro se litigants are not relieved of their obligation to allege sufficient facts to support a cognizable legal claim. See, e.g., Taylor v . Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002); Riddle v . Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996).
The United States Court of Appeals for the Third Circuit in Phillips v. County of Allegheny has ruled that if a District Court is dismissing a claim pursuant to Fed. R. Civ. P. 12(b)(6) in a civil rights case, it must sua sponte "permit a curative amendment unless such an amendment would be inequitable or futile." 515 F.3d 224, 245 (3d Cir. 2008).
IV. ANALYSIS
A. Section 1983
Pursuant to 42 U.S.C. § 1983, private citizens are afforded a means to redress violations of federal law committed by state actors. In pertinent part, § 1983 provides as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. ...Id. Section 1983 is not a source of substantive rights, but merely a method for vindicating violations of federal law. Gonzaga Univ . v. Doe, 536 U.S. 273, 284-85 (2002); Kneipp v . Tedder , 95 F.3d 1199, 1204 (3d Cir.1996). To establish a Section 1983 claim, a plaintiff must show a deprivation of a "right secured by the Constitution and the laws of the United States ... by a person acting under color of state law." I d . (quoting Mark v . Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir.1995)). Since there is no dispute that Defendants were acting under color of state law at all times relevant to this litigation, this Court's § 1983 analysis will focus on whether Plaintiff has alleged a plausible violation of his federal rights.
B. Fifth Amendment
The Fifth Amendment provides, in relevant part, that "[n]o person shall be ...deprived of life, liberty, or property without due process of law..." U.S. CONST. amend V. It is axiomatic that "[t]he limitations of the [F]ifth [A]mendment restrict only federal governmental action." Nguyen v . U.S. Catholic Conference, 719 F.2d 52, 54 (3d Cir.1983). No defendant in this lawsuit is a federal actor. Consequently, Plaintiff cannot assert a viable §1983 claim against them based on a Fifth Amendment violation. See, e.g., Leventry v . Watts, Civil Action No. 06-193, 2007 WL 1469038, at *2 (W.D. Pa. May 17, 2007) ("[T]he Fifth Amendment restricts the actions of federal officials, not state actors."); Kopchinski v . Green, Civil Action No. 05-6695, 2006 WL 2228864, at *1 (E.D. Pa. Aug. 2, 2006) (dismissing plaintiff's Fifth Amendment claims because all of the defendants were state actors).
As noted supra, Plaintiff's Response indicates concurrence in dismissal of his Fifth Amendment claim "based on the factuality". ECF No. 31 at 2. In light of Plaintiff's indication of voluntary dismissal, and the obvious inapplicability of the amendment to the facts of this case, it is recommended that any Fifth Amendment claims be dismissed with prejudice.
C. First Amendment
The essence of Plaintiff's First Amendment claim is one of retaliation, i.e., that Defendant Jacobs violated Plaintiff's free speech rights when he arrested Plaintiff for disorderly conduct based on the latter's verbal confrontations and refusals to be quiet and depart. See Farmer v. Decker, 353 F.Supp.3d 342 (M.D. Pa. 2018) (providing analysis of First Amendment claim where plaintiff was charged with disorderly conduct as a result of verbal altercation).
A claim for First Amendment retaliation requires proof of: "(1) constitutionally protected conduct, (2) a retaliatory action sufficient to deter a person of ordinary firmness from exercising his constitutional rights, and (3) a causal link between the constitutionally protected conduct and the retaliatory action." Thomas v. Indep. Twp., 463 F.3d 285, 296 (3d Cir. 2006). In addition, where, as here, the claim is one of retaliatory prosecution (i.e., arrest and charge), Hartman v. Moore, 547 U.S. 250, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006), requires proof that the police officer's action against Plaintiff was unsupported by probable cause. Farmer, 353 F.Supp.3d at 355 (noting that absence of probable cause was an element of the Section 1983 First Amendment claim); see also Credico v. W. Goshen Police, Civ. No. 13-1255, 2013 WL 6077168, at *2 (E.D. Pa. Nov. 18, 2013), aff'd, 574 Fed. Appx. 126 (3d Cir. 2014).
Construing all facts in the light most favorable to Plaintiff, no reasonable factfinder could conclude that Defendant Jacob lacked probable cause. See infra Sections IV(D), (E) (explicating probable cause in addressing Fourteenth and Fourth Amendment claims). See also Farmer, 353 F.Supp.3d at 355 (noting that court can conclude probable cause existed as a matter of law in absence of reasonable support for a contrary fact finding). Accordingly, it is recommended that any First Amendment claims be dismissed with prejudice. Any attempt by Plaintiff to further amend his Complaint as to these claims would be futile.
Defendants' citation to Wilson v. Jean, Civ. No. 15-1793, 2016 U.S. Dist. Lexis 11207 at 1-2 (E.D. Pa. Feb. 1, 2016), is largely inapposite as the case considered aspects of First Amendment speech as a defense to a charge of disorderly conduct as opposed to whether a probable-cause-based criminal code sanction for such conduct was violative of First Amendment rights. See ECF No. 27 at 11.
D. Fourteenth Amendment
The Fourteenth Amendment provides, in relevant part, that "[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." U.S. CONST. amend. XIV, §1. Here, Plaintiff asserts violations of his due process rights based on alleged false arrest. See ECF 17 at 7.
The "more specific provision rule" states that, "[w]here a particular Amendment 'provides an explicit textual source of constitutional protection' against a particular sort of government behavior, 'that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims.'" Albright v . Oliver, 510 U.S 264, 273 (1994) (quoting Graham v . Connor, 490 U.S. 386, 395 (1989)). The Third Circuit Court of Appeals has explained that:
[t]he boundary between Fourth Amendment and Fourteenth Amendment claims is, at its core, temporal. The Fourth Amendment forbids a state from detaining an individual unless the state actor reasonably believes that the individual has committed a crime—that is, the Fourth Amendment forbids a detention without probable cause. See, generally, Bailey v . United States, —U.S. —, 133 S. Ct. 1031, 1037, 185 L.Ed.2d 19 (2013). But this protection against unlawful seizures extends only until trial. See Schneyder v . Smith, 653 F.3d 313, 321 (3d Cir. 2011) (observing that post-conviction incarceration does not implicate the Fourth Amendment). The guarantee of due process of law, by contrast, is not so limited as it protects defendants during an entire criminal proceeding through and after trial. Pierce v . Gilchrist, 359 F.3d 1279, 1285-86 (10th Cir.2004) ("The initial seizure is governed by the Fourth Amendment, but at some point after arrest, and certainly by the time of trial, constitutional analysis shifts to the Due Process Clause." (internal citation omitted)).Halsey v . Pfeiffer, 750 F.3d 273, 291 (3d Cir. 2014).
Accordingly, to the extent that Plaintiff's §1983 claim relates to a period of confinement subsequent to arrest, the claim may be properly analyzed under the Fourteenth Amendment rather than under the Fourth Amendment. To state a substantive due process claim under §1983, a plaintiff must allege facts that plausibly establish: (1) that the particular interest at issue is protected by the Fourteenth Amendment, and (2) that the government's deprivation of that protected interest shocks the conscience. Connection Training Serv . v. City of Phila., 358 F. App'x 315, 319 (3d Cir. 2009); see Gottlieb v . Laurel Highlands Sch. Dist., 272 F.3d 168, 172 (3d Cir.2001) (substantive due process is violated when state conduct is "arbitrary, or conscience shocking, in a constitutional sense") (internal quotation marks and citation omitted). To state a procedural due process claim, a plaintiff must allege that: "(1) he was deprived of an individual interest that is encompassed within the Fourteenth Amendment's protection of 'life, liberty, or property,' and (2) the procedures available to him did not provide 'due process of law.'" Mulholland v . Government Cty. of Berks, Pa., 706 F.3d 227, 238 (3d Cir. 2013).
In this case, the Amended Complaint and Plaintiff's Response (ECF No. 17 and 31) allege that Plaintiff's arrest and confinement lacked probable cause. Under the facts as set forth in the Amended Complaint and Plaintiff's Response, however, Plaintiff's arrest was made with probable cause. See ECF No. 17; ECF No. 31 at 2 (relating that upon "being told to move" by Jacob, "Plaintiff informed the defendants that he was waiting for the bus which lead to the dispute" and that "Plaintiff failed to be quiet . . . as demanded by [Jacob] leading to a verbal confrontation between the two"); Whiting v. Bonazza, 545 Fed. Appx. 126, 128 (3d Cir. 2013) ("Probable cause to arrest exists when the information within the officer's knowledge at the time of the arrest would be enough to allow a reasonable law enforcement officer to believe that an offense has been or is being committed by the person to be arrested.") (citing United States v. Cruz, 910 F.2d 1072, 1076 (3d Cir.1990)); id. (concluding officer had reason to believe individual non-compliant with his quelling of public disruption "was at least recklessly creating a risk of public inconvenience" within Pennsylvania law definition of disorderly conduct, 18 Pa. C.S.A. § 5503).
Moreover, Plaintiff entered a plea of guilty to the summary offense charges of Disorderly Conduct and Harassment. Thus, he is precluded from stating a viable Fourteenth Amendment due process violation based on his conviction and sentencing. Plaintiff waived any procedural rights that have a "'direct connection to the determination of [his] guilt or innocence.'" United States v. McGill, 128 F.Supp.3d 863, 867-68 (E.D. Pa. 2015) (quoting United States v . DeCosta, 435 F.2d 630, 632 (1st Cir.1970)).
See also Washington v . Hanshaw, 552 F. App'x 169, 173-74 (3d Cir. 2014) (holding that, where the plaintiff in a §1983 lawsuit was not actually innocent of the crime for which he was convicted and sentenced, he did not state a viable substantive due process claim based upon allegations that officers arrested him without probable cause; plaintiff's "incarceration for a crime he admits he committed did not deprive him of any liberty interest protected by the substantive due process clause").
In addition, Plaintiff's averments are insufficient to state any plausible Fourteenth Amendment violation, and the facts do not suggest the possibility of any such viable claim. See also infra (discussion of Plaintiff's Fourth Amendment claims). It is therefore recommended that any Fourteenth Amendment due process claim be dismissed with prejudice. Any attempt by Plaintiff to further amend his Complaint as to these claims would be futile.
To the extent Plaintiff might intend to raise a due process claim based on malicious abuse of process, his averments are insufficient and the record indicates any further amendment of his Complaint in this regard would also be futile. A claim for malicious abuse of civil process can be considered as arising under the umbrella of due process. Bracey v. Huntingdon Cty., Civ. No. 1:14-CV-2271, 2018 WL 4518341, at *6-7 (M.D. Pa. July 17, 2018), report and recommendation adopted sub nom. Bracey v . Park, Civ. No. 1:14-CV-2271, 2018 WL 4507598 (M.D. Pa. Sept. 19, 2018). However, "[t]o establish a claim for malicious abuse of process, a plaintiff must show (1) the defendant has set legal process in motion for an improper ulterior purpose, and (2) the defendant has committed a willful act in the use of process which perverts the regular conduct of the proceeding to accomplish the improper purpose." I d . (quoting Dunne v. Twp. of Springfield, Civ. No. 08-5605, 2011 WL 2269963, at *8 (D.N.J. Jan. 31, 2011) (quoting Voytko, 445 F.Supp. at 32), aff'd, 500 F. App'x. 136 (3d Cir. 2012). See also id . ("[T]here is no cause of action for abuse of process if the claimant, even with bad intentions, merely carries out the process to its authorized conclusion.") (quoting Cameron v . Graphic Management Assoc., Inc., 817 F. Supp. 19, 21 (E.D. Pa. 1992)); ("In sum, under Pennsylvania law, "[t]he gist of an action for abuse of process is the improper use of process after it has been issued, that is, a perversion of it[.]") (quoting McGee v . Feege, 535 A.2d 1020, 1023, 517 Pa. 247, 253 (Pa. 1987) (quoting Publix Drug Co . v. Breyer Ice Cream Co., 32 A.2d 413, 415, 347 Pa. 346, 349-50 (Pa. 1943))).
E. Fourth Amendment
Plaintiff 's remaining Constitutional Amendment claims relate to alleged violation of his rights under the Fourth Amendment. The Fourth Amendment provides that:
[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.U.S. CONST. amend. IV.
The Fourth Amendment's prohibition against unreasonable seizures protects individuals from arrest without probable cause. Orsatti v . New Jersey State Police, 71 F.3d 480, 482 (3d Cir. 1995) (citing Papachristou v . City of Jacksonville, 405 U.S. 156, 169 (1972)). "Probable cause exists whenever reasonably trustworthy information or circumstances within a police officer's knowledge are sufficient to warrant a person of reasonable caution to conclude that an offense has been committed by the person being arrested." United States v . Myers, 308 F.3d 251, 255 (3d Cir. 2002) (citing Beck v . Ohio, 379 U.S. 89, 91 (1964)). The law of the state where the arrest occurred controls whether the arrest is valid. Myers , 308 F.3d at 255 (citing Ker v . California, 374 U.S. 23, 37 (1963)). In determining whether probable cause exists to support an arrest, the analysis must be based upon the totality of circumstances including "the objective facts available to the officers at the time of the arrest." Sharrar v . Felsing, 128 F.3d 810, 818 (3d 9 Cir. 1997) (citing Illinois v . Gates, 462 U.S. 213, 230-31 (1983)). Subjective intentions of police officers are irrelevant to a Fourth Amendment probable cause analysis. Whren v . United States, 517 U.S. 806, 813 (1996). Similarly, to state a claim for false imprisonment, a plaintiff must establish that he was detained, and that the detention was unlawful. James v . City of Wilkes-Barre, 700 F.3d 675, 682-83 (3d Cir. 2012). That is, "where the police lack probable cause to make an arrest, the arrestee has a claim under § 1983 for false imprisonment based on a detention pursuant to that arrest." Groman v . Twp. of Manalapan, 47 F.3d 628, 636 (3d Cir. 1995).
Here, Plaintiff pled guilty to Disorderly Conduct and Harassment, see supra, which establishes probable cause as a matter of law. As this Court has previously observed:
[C]onviction establishes as a matter of law that the arrest was supported by probable cause. Shelley v . Wilson, 339 F. App'x 136, 139 (3d Cir. 2009) (citing McClam v . Barry, 697 F.2d 366, 370 (D.C. Cir. 1983), overruled on other grounds, Brown v . U.S., 742 F.2d 1498 (D.C. Cir. 1984) ("stating that as to common law and constitutional law false arrest claims, 'subsequent conviction establishes as a matter of law that the arrest was justified")). And "when an arrest
is made on more than one charge, '[p]robable cause need only exist as to any offense that could be charged under the circumstances.'" Shelley , 339 F. App'x at 139 n.4 (quoting Barna v . City of Perth Amboy, 42 F.3d 809, 819 (3d Cir. 1994)).Storch v. Monroeville Police Dept., Civ. No. 2:12-cv-629, 2013 WL 3930532, *5 (W.D. Pa. July 29, 2013).
Moreover, and as noted throughout the Report and Recommendation, despite Plaintiff's assertions to the contrary, the facts he himself recounts presented probable cause for Plaintiff's arrest. See supra. To clarify the law for pro se Plaintiff (particularly given Defendants' failure to address this aspect of the Amended Complaint in their briefing): Plaintiff's objections to his arrest without warrant - while the other party to the verbal altercation received only a summons - are, in the circumstances he avers, not legally sustainable. See, e.g., Plaintiff's Response, ECF No. 31 at 1 ("Jacob did in fact violate clearly established PA Common Law restricting officers arrest abilities . . . ."); id. at 2 ("Defendants made a false arrest, lodging [Plaintiff] into the Allegheny County Jail instead of issuing a summons as Pennsylvania state law mandates."). Rather, where there was probable cause as to any one of the summary offenses Plaintiff was charged with, that they were "summary offenses" does not revive his claim of unlawful arrest. To the contrary, an officer with probable cause has Constitutional authority to arrest an individual for the violation of any observed crime, regardless of its designation under state law. See Virginia v. Moore, 553 U.S. 164, 176, 128 S.Ct. 1598, 170 L.Ed.2d 559 (2008) ("When officers have probable cause to believe that a person has committed a crime in their presence, the Fourth Amendment permits them to make an arrest," and "while States are free to regulate such arrests however they desire, state restrictions do not alter the Fourth Amendment's protections."); id. at 1606 ("A State is free to prefer one search-and-seizure policy among the range of constitutionally permissible options, but its choice of a more restrictive option does not render the less restrictive ones unreasonable, and hence unconstitutional."). See also Kokinda v. Breiner, 557 F.Supp.2d 581, 593 (M.D. Pa. 2008) (where plaintiff argued officer lacked probable cause for any arrestable offense under Pennsylvania law, but conceded probable cause for summary offense of harassment, admission of probable cause precluded any claim for false arrest under § 1983); id. ("Although courts state that '[i]n Pennsylvania, a false arrest is defined as 1) an arrest made without probable cause or 2) an arrest made by a person without privilege to do so,' Russoli v. Salisbury Twp., 126 F.Supp.2d 821, 869 (E.D.Pa.2000), the cases involving false arrest claims against police officers turn on the existence or nonexistence of probable cause."); id. at 593-94 (noting that Pennsylvania state law false arrest claims and federal constitutional false arrest claims are co-extensive and granting dismissal of Plaintiff's state law false arrest and false imprisonment claims).
Plaintiff cannot succeed on his claims of false arrest, and it is recommended that Defendants' Motion to Dismiss as it relates to any Fourth Amendment claims be granted. Any attempt by Plaintiff to further amend his Complaint as to these claims would be futile.
Plaintiff's false arrest claims may also be barred by the Heck doctrine because a finding for Plaintiff on his § 1983 false arrest and false imprisonment claims could undermine the state court conviction which establishes as a matter of law that the arrest was supported by probable cause. See Heck v . Humphrey, 512 U.S. 477 (1994), discussed in Turosik v . Hougue, Civ. No. 08-1248, 2011 WL 1044648, at *8-9 (W.D. Pa. March 18, 2011). See also ECF No. 27. As explained above, Plaintiff's conviction and the record establish as a matter of law that the arrest and charges filed against him were initiated with probable cause. Hence, Plaintiff could not establish a prima facie claim for malicious prosecution. McKenna v . City of Philadelphia, 582 F.3d 447, 461 (3d Cir. 2009) (citing Estate of Smith v . Marasco, 318 F.3d 497, 521 (3d Cir. 2003)
F. Civil Rights Act of 1964
Plaintiff alleges a violation of 42 U.S.C. § 2000(a), prohibiting "discrimination or segregation in places of public accommodation, by virtue of Defendants' "knowing[ ] attempt to force the Plaintiff to move from the public transit stop." ECF No. 17 at 7. A claim under the Civil Rights Act is not maintainable on the facts averred, i.e., where Plaintiff was removed from the bus stop with probable cause for criminal violation(s) including disorderly conduct, to which he pled guilty. See Defendants' Motion and Brief in Support, ECF No. 25, ECF No. 27 at 15-16. See also Thompson v. Eva's Vill. & Sheltering Program, Civ. No. 04-2548JAP, 2006 WL 469938, at *6 (D.N.J. Feb. 24, 2006), aff'd, 243 Fed. Appx. 697 (3d Cir. 2007) (dismissing claims under 2000(a) where record was "devoid of any evidence that plaintiff was discriminated against" and "there [was] no evidence to suggest that his removal was for anything other than his disruptive behavior") (citing McAllister v. Greyhound Lines, Inc., Civ. No. 96-2225, 1997 WL 642994, at *7-8 (D.N.J. Oct. 7, 1997)).
It is therefore recommended that any claims alleged under Section 2000(a) be dismissed with prejudice. Any attempt by Plaintiff to further amend his Complaint as to these claims would be futile.
G. Federal and State Criminal Statutes
As noted in Defendants' Brief in Support, ECF No. 27 at 12-15, Plaintiff "sets forth a litany of purported causes of action for violation of federal and state criminal statutes." These include:
18 U.S.C. §§ 241 and 242 (Deprivation of Rights Under Color of Law), 245 (Federally Protected Activities), 249 (Hate Crimes) - all of which are purely Federal criminal statutes without any implied personal right or private remedy or indication of a Congressional intent to create one.
Plaintiff states an allegation in support of Defendants' violation of 18 U.S.C. § 249 regarding Hate Crimesi.e., that Jacob made "a statement that could be taken as racist referencing 'You People' while walking [Plaintiff] down the sidewalk to the [Police Department] saying that all you people do is cause commotion, be loud, and sell drugs." The Court definitely does not condone or sanction such a discriminatory statement; however, the statement alone is insufficient to state a constitutional violation as a matter of law and, as noted elsewhere, the facts averred and foundations of this action as set forth by Plaintiff in his Amended Complaint and Response do not support further amendment. See, e.g., Martinez v. United States, Civ. No. 1:10-2156, 2012 WL 4018010, at *9 (M.D. Pa. Aug. 7, 2012), report and recommendation adopted, Civ. No. 1:10-CV-2156, 2012 WL 4018018 (M.D. Pa. Sept. 12, 2012) (holding, in granting motion to dismiss and for summary judgment, that assertions that officer "made racists remarks" were "insufficient, even given the plaintiff's pro se status, to demonstrate a constitutional violation"). See also Mackey v. Good, Civ. No. 1:14-CV-476, 2015 WL 390879, at *11 (M.D. Pa. Jan. 28, 2015) (noting, in dismissing claim that defendant officer made a "derogatory, racist remark" that "verbal harassment does not rise to the level of a viable civil rights claim") (citing Hart v. Whalen, 2008 WL 4107651, *10 (M.D. Pa. 2008)).
18 Pa.C.S. §§ 2903 (False Imprisonment), 4902 (Perjury); 4903 (False Swearing); 4904 (Unsworn Falsification), 5101 (Obstructing Administration of Law) and 5301 (Official Oppression) - all of which are purely Commonwealth criminal statutes without any implied personal right or private remedy or indication of a legislative intent to create one.
42 Pa.C.S. §8351 (the "Dragonetti Act") - a statute creating a remedy for the wrongful use of civil process which does not pertain to criminal process, and which requires a termination of the civil proceedings in the plaintiff's favor. As noted supra, Plaintiff appears to concur with dismissal of this Dragonetti Act claim. See Plaintiff's Response, ECF No. 31 at 2. See also ECF No. 27 at 16-17.
42 Pa.C.S.A. §8902 (Arrest Without Warrant) and 234 Pa. Code Ch. 5 Rule 509 (Use of Summons or Warrant of Arrest in Court Cases) - both of which pertain to Pennsylvania's designation of procedural policies for the commission of crimes and present no implied personal right or private remedy or indication of a legislative intent to create one. See also supra (discussion of probable cause as it relates to a claim of false arrest under Section 1983).
As correctly noted in Defendants' Brief in Support, ECF No. 27 at 12-13, a bare criminal statute is generally insufficient to support a private right to bring a civil action. Rather, "'for an implied right of action to exist, a statute must manifest Congress' intent to create 1) a personal right, and 2) a private remedy.'" Matthews v. Wash. Mut. Bank, F.A., Civ. No. 05-100, 2006 U.S. Dist. LEXIS 56738, *8-10 (E.D. Pa. Aug. 14, 2006) (quoting Three Rivers Ctr. for Indep. Living, Inc. v. Hous. Author., 382 F.3d 412, 421 (3d Cir. 2004)). See also ECF No. 27 at 13-15 (detailing the subject and content of the Federal and State criminal statutes cited in Plaintiff's Amended Complaint, in correctly asserting that these claims should be dismissed). Id. at 15 (noting the absence of any authority for Plaintiff's assertion that any of the cited Pennsylvania criminal statutes operate to create a personal right or private remedy).
To further clarify for pro se Plaintiff, the criminal statutes to which Plaintiff cites prohibit the conduct specified therein and may form the basis for a criminal prosecution. Criminal prosecutions are, however, generally necessarily brought by a governmental authority. These criminal statutes do not create any private right - that is, any right in another individual - to bring an action for their violation. Plaintiff may notice the similarity in specified conduct which may form the basis for a criminal prosecution by the government under certain of these statutes (e.g., false imprisonment or the presentation of false evidence) and the conduct which may form the basis of an individual's claim under Section 1983. These statutes present different avenues for accountability and redress. It is therefore recommended that any claims under the aforesaid statutory provisions be dismissed with prejudice. Any attempt by Plaintiff to further amend his Complaint as to these claims would be futile.
H. Municipal Liability
Plaintiff's Amended Complaint broadly alleges that Defendants Borough of Mount Oliver and Mount Oliver Police Department "through its poor training and lack of diversity in the hiring and appointment of police officers does allegedly and knowingly show deliberate indifference to insuring that all civilians who encounter its officers are afforded the rights granted them by the U.S. Constitution and Pa. Common Law." ECF No. 17 at 5-6 (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). As noted above, Plaintiff has since expressed concurrence in the appropriateness of dismissal of the Mount Oliver Police Department as a Defendant. ECF No. 31 at 2. See also ECF No. 27 at 18 ("The United States Court of Appeals for the Third Circuit has held that a municipal police department is not a separate entity from the municipality such that it can be sued for purposes of Section 1983 liability.") (quoting Ford v. City of Pittsburgh, Civ. No. 13-1364, 2014 WL 7338758, *6 (W.D. Pa. Dec. 22, 2014).
A municipality may be found liable where an unconstitutional action "implements or executes a policy, statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers. Monell, 436 U.S. at 690. A municipality's failure to properly train its employees may be the basis for § 1983 liability where it amounts to a "deliberate indifference" to the rights of those affected. Blakeslee v. Clinton County, 336 Fed. Appx. 248, 251 (3d Cir.2009) (quoting City of Canton v. Harris, 489 U.S. 378, 389, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)). However, to establish Monell liability, a plaintiff must establish an underlying constitutional violation. See, e.g., Marable v. West Pottsgrove Twp., 176 Fed. Appx. 275, 283 (3d Cir. 2006) ("[A] municipality may not incur Monell liability as a result of the actions of its officers when its officers have inflicted no constitutional injury."). The language of the Amended Complaint makes clear that Plaintiff's claim of municipal liability is premised on his misplaced allegation that his rights were violated by his arrest. See supra.
Given the absence of an underlying constitutional violation, and Plaintiff's concurrence in dismissal of the Mount Oliver Police Department as a party, it is recommended that any claims alleged against the Mount Oliver Police Department or the Borough of Mount Oliver be dismissed with prejudice. Any attempt by Plaintiff to further amend his Complaint as to these claims would be futile.
I. Bystander Liability
Plaintiff alleges, throughout his Amended Complaint, that Defendants Candioto, Prunty and Guerriero, in their official capacity, "knowingly remain[ed] indifferent to the [unconstitutional] actions" of arresting officer Jacob. See, e.g., ECF No. 16 at 6. A plaintiff can bring a § 1983 claim against a police officer under the theory of bystander liability by demonstrating that the officer: (1) "knows that a fellow officer is violating an individual's constitutional right; (2) has a reasonable opportunity to prevent the harm; and (3) chooses not to act." Fernandors v. District of Columbia, 382 F.Supp.2d 63, 72 (D.D.C.2005); see also Randall v. Prince George's County, 302 F.3d 188, 203-204 (2d Cir.2002). Bystander liability is not a "distinct claim," but a theory through which an "otherwise passive defendant" may be held liable for a constitutional violation. Jackson v. Mills, No. Civ.A. 96-3751, 1997 WL 570905, at *5 (E.D.Pa. Sept.4, 1997). Where, as here, there has been no underlying constitutional violation, no claim of bystander liability can be maintained. It is therefore respectfully recommended that all such claims be dismissed with prejudice. Any attempt by Plaintiff to further amend his Complaint as to these claims would be futile.
J. Injunctive Relief
Plaintiff's Amended Complaint also asserts a claim for "Irreparable Injury" which raises assertions of the possibility of future unconstitutional conduct by Defendants (e.g., harassment, unspecified "civil rights violations" or destruction of evidence) and Defendants' failure to return keys and ID "which would cause undue expenses to replace" and place Plaintiff in "fear for [his] life". ECF No. 17 at 13. Plaintiff does not satisfy the factors required for injunctive relief, as to which he bears the burden of proof. See ECF No. 27 at 21-22. More specifically, "failure to show a likelihood of success on the merits or a failure to demonstrate irreparable harm must necessarily result in the denial of a preliminary injunction." Id. (citing In re Arthur Treacher's Franchise Litigation, 689 F.2d 1137 (3d Cir. 1982)). In light of the Court's other recommendations herein, it is also recommended that any claim of injunctive relief be dismissed. Any attempt by Plaintiff to further amend his Complaint in this regard would be futile.
K. Qualified Immunity
Defendants' Brief in Support asserts the additional defense of qualified immunity. See ECF No. 27 at 19-21. As this Court has previously observed:
"The doctrine of qualified immunity protects government officials 'from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.' " Pearson v . Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v . Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). Qualified immunity operates to ensure that, before they are subjected to suit, government officials are put on notice that their conduct is unlawful. Hope v . Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). "Qualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." Pearson , 555 U.S. at 231, 129 S.Ct. 808 . "If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct." Harlow , 457 U.S. at 818-19, 102 S.Ct. 2727 . "Put simply, qualified immunity protects 'all but the plainly incompetent or those who knowingly violate the law.' " Mullenix v . Luna, — U.S. —, 136 S.Ct. 305, 308, 193
L.Ed.2d 255 (2015) (quoting Malley v . Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)).Thompson v . Hens-Greco, 2017 WL 4542908, at *4-5 (W.D. Pa. Sept. 13, 2017), report and recommendation adopted, 2017 WL 4541471 (W.D. Pa. Oct. 10, 2017)
In determining whether qualified immunity applies, the courts conduct a two-pronged inquiry. Pearson , 555 U.S. at 232, 129 S.Ct. 808 ; Spady v . Bethlehem Area Sch. Dist., 800 F.3d 633, 637 (3d Cir. 2015). First, the court must determine "whether the facts that the plaintiff has alleged ... or shown ... make out a violation of a constitutional right." Pearson , 555 U.S. at 232, 129 S.Ct. 808 (citing Saucier v . Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)); Spady , 800 F.3d at 637 (quoting Pearson , 555 U.S. at 232, 129 S.Ct. 808 ). "If the plaintiff fails to make out a constitutional violation, the qualified immunity inquiry is at an end; the [government official] is entitled to immunity." Bennett v . Murphy, 274 F.3d 133, 136 (3d Cir. 2002).
In this case, it is respectfully recommended that the Amended Complaint be dismissed, for reasons including Plaintiff's failure to assert circumstances supporting, or reasonably suggesting, a Constitutional violation. Thus "the qualified immunity inquiry [would be] at an end." Bennett, 274 F.3d at 136. See also, supra.
V. CONCLUSION
As more specifically set forth above, the Court concludes that further amendment would clearly be futile as (a) Plaintiff's claims are not cognizable under §1983, or any other allegedly applicable law, against the Defendants as a matter of law and/or (b) Plaintiff has failed to identify any facts that suggest a possible violation of those rights and the facts averred indicate preclusion of any cognizable claim. Consequently, it is respectfully recommended that Plaintiff's Complaint be dismissed with prejudice by grant of Defendants' Motion to Dismiss, ECF No. 25.
In accordance with the Federal Magistrate Judge's Act, 28 U.S.C. §636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Rules of Court, 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 such objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file timely objections will constitute a waiver of any appellate rights. Dated: July 8, 2019
BY THE COURT:
/s/_________
LISA PUPO LENIHAN
United States Magistrate Judge cc: Ramon L. Milligan
877 VanKirk St.
Clairton, PA 15025
Via First Class U.S. Mail
All Counsel of Record
Via Electronic Mail