Opinion
Civil Action 1:21-263
11-07-2022
MARQUICE EVANS, Plaintiff, v. RICHARD LORAH, et al., Defendants.
Judge Baxter
REPORT AND RECOMMENDATION
Patricia L. Dodge United States Magistrate Judge
I. Recommendation
It is respectfully recommended that Defendants' Motion to Dismiss (ECF No. 13) be granted.
II. Report
Plaintiff Marquice Evans (“Evans”), a prisoner who is incarcerated in the State Correctional Institution at Albion, Pennsylvania (“SCI Albion”), brings this pro se civil rights action against various individuals who, he contends, arrested, prosecuted and tried him without probable cause.
Pending before the Court is a motion to dismiss filed by the remaining two defendants, Police Captain Richard Lorah (“Lorah”) and Detective Sean Bogart (“Bogart”). For the reasons that follow, the motion should be granted.
A. Procedural History
Evans initiated this action on September 22, 2021 by submitting a Complaint with a motion to proceed in forma pauperis. After the motion was granted, the Complaint was docketed. The Complaint asserted violations of the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and raised claims for false arrest, false imprisonment and malicious prosecution. As noted by Magistrate Judge Lanzillo, Evans “also makes passing references to due process, equal protection, cruel and unusual punishment, and the right to confront witnesses.” (ECF No. 8 at 2.) In addition to Lorah and Bogart, the Complaint also named as defendants former Magisterial District Justice Tom Robie, District Attorney Jack Daneri, former District Attorney Erin Connelly, and Erie County Judges John Trucilla and Jamie Mead. Federal question jurisdiction is based on the civil rights claims, which Evans asserts pursuant to 42 U.S.C. § 1983.
Previously, Evans had filed an action at Civ. A. No. 1:20-22 in which he made many of the same allegations and included three additional defendants. On May 11, 2020, Magistrate Judge Lanzillo filed an R&R recommending that the case be dismissed as legally frivolous, except that Evans would not be precluded from filing a habeas corpus action after his proceedings had terminated or a renewed § 1983 action if his conviction was overturned. On December 31, 2020, Judge Baxter adopted the R&R and dismissed the case.
However, on April 1, 2022, Magistrate Judge Lanzillo, having performed a screening of the Complaint pursuant to 28 U.S.C. § 1915(e), filed a Report and Recommendation (“R&R”) recommending that Evans' claims against Defendants Robie, Daneri, Connelly, Trucilla and Mead be dismissed as legally frivolous (ECF No. 8). After objections were filed, Judge Baxter adopted the R&R as the opinion of the Court and dismissed these defendants with prejudice. As a result, only the claim of malicious prosecution remains against Defendants Lorah and Bogart (ECF No. 10).
The Court previously stated that, in addition to the malicious prosecution claim, the Complaint also alleged a claim of abuse of process. However, upon further review, the Court does not find any reference to a claim of abuse of process in the Complaint, nor is it mentioned in the motion to dismiss or addressed in Evans' response to the motion to dismiss. It is possible that this reference was inadvertently carried over from Evans' prior case, in which he stated “I have been maliciously arrested, maliciously prosecuted, falsely imprisoned, while a direct abuse of process have [sic] been used to unlawfully arrest and kidnap me.” Civ. A. No. 1:20-cv-22, ECF No. 3 at 5. Those allegations do not appear in this case.
On June 8, 2022, Defendants Lorah and Bogart filed a motion to dismiss (ECF No. 13), which has been fully briefed (ECF Nos. 14, 23).For the reasons that follow, their motion should be granted.
On June 13, 2022, Magistrate Judge Lanzillo filed an order of recusal (ECF No. 17) and the case was reassigned to the undersigned on referral.
B. Factual Background
Evans alleges that, on August 19, 2015, Lorah and Bogart filed a criminal complaint against him without an affidavit of probable cause. According to Evans, the now-dismissed defendants ignored or refused to acknowledge this issue. Evans was eventually convicted of conspiracy to commit criminal homicide, criminal homicide (first-degree murder), aggravated assault, burglary, recklessly endangering another person, access device fraud, unlawful restraint, and possession of an instrument of crime in connection with the killing of the victim. These proceedings were docketed at CP-25-CR-0002901-2015 in the Court of Common Pleas of Erie County, Pennsylvania. See ECF No. 13 Ex. 3 at 2-3.
Evans was sentenced to life imprisonment without parole for criminal homicide and an aggregate, consecutive sentence of 25 years and 8 months to 51 years and 2½ months of imprisonment for the remaining convictions. His sentence was affirmed on appeal by the Superior Court on February 26, 2018 and the Pennsylvania Supreme Court denied his petition for allowance of appeal on September 5, 2018. (Id. at 3-4.)
On January 2, 2019, Evans filed a petition under the Post Conviction Relief Act, 42 Pa. C.S. §§ 9541-46 (“PCRA”). On November 19, 2019, the PCRA court dismissed the petition on the ground that his claims were previously litigated. (Id. at 4-5.) He filed appeals in the Superior Court which were docketed at Nos. 1865, 1866 and 1867 WDA 2019. On March 8, 2021, the Superior Court vacated the order of the PCRA court and remanded the case for further proceedings.
C. Discussion
1. Standard of Review
Under Rule 12(b)(6), a motion to dismiss may be granted only if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court finds that plaintiff's claims lack facial plausibility.” Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). “This requires a plaintiff to plead “sufficient factual matter to show that the claim is facially plausible,” thus enabling “the court to draw the reasonable inference that the defendant is liable for misconduct alleged.” Id. (quoting Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)). While the complaint “does not need detailed factual allegations ... a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. See also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
As noted by the Court of Appeals for the Third Circuit in Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011), a 12(b)(6) inquiry includes identifying the elements of a claim, disregarding any allegations that are no more than conclusions and then reviewing the well-pleaded allegations of the complaint to evaluate whether the elements of the claim are sufficiently alleged.
In ruling on a Rule 12(b)(6) motion, courts generally consider only the complaint, exhibits attached thereto, and matters of public record. Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014). In addition, “a court may consider an 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.” Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).
The parties have attached documents that are all matters of public record: the docket sheet in Evans' criminal case, the Superior Court opinion, Magistrate Judge Lanzillo's R&R in Civ. A. No. 1:20-22, and various pleadings and orders in Evans' PCRA proceedings. These documents may be considered without converting the motion into a motion for summary judgment. See Geness v. Administrative Off. of Pennsylvania Courts, 974 F.3d 263, 276 (3d Cir. 2020), cert. denied sub nom. Geness v. Pennsylvania, 210 L.Ed.2d 833 (May 24, 2021)
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).
2. Malicious Prosecution Claim
Defendants contend that Evans fails to state a claim of malicious prosecution because such a claim requires favorable termination of the criminal proceedings in his favor and this has not occurred. While Evans construes the Superior Court's decision as the favorable termination, his interpretation is incorrect.
The Court of Appeals for the Third Circuit has held that:
To prove malicious prosecution under section 1983, a plaintiff must show that: (1) the defendants initiated a criminal proceeding; (2) the criminal proceeding ended in plaintiff's favor; (3) the proceeding was initiated without probable cause; (4) the defendants acted maliciously or for a purpose other than bringing the plaintiff to justice; and (5) the plaintiff suffered deprivation of liberty consistent with the concept of seizure as a consequence of a legal proceeding.Estate of Smith v. Marasco, 318 F.3d 497, 521 (3d Cir. 2003) (citation omitted).
At issue in this case is the significance of the Superior Court's March 8, 2021 decision. The Super Court noted that a criminal complaint was brought against Evans on August 19, 2015 but the arrest warrant did not appear in the record. This was contrary to the arresting officer's testimony that Evans had been arrested on July 15, 2015. The court concluded as follows:
Based upon the current record before us, we are unable to discern the exact circumstances of [Evans'] arrest for purposes of reviewing his claims of ineffectiveness of counsel. Furthermore, because the PCRA court erred in determining that [his] issues were previously litigated, the PCRA court's four-sentence Rule 1925(a) opinion has left this Court without any expression by the PCRA court of its reasons for dismissing [his] collateral claims. Consequently, we are constrained to vacate the November 19, 2019 order dismissing [Evans'] PCRA petition without a hearing and remand the case to the PCRA court. On remand, the PCRA court is instructed to review and dispose of the petition in light of our decision, including conducting an evidentiary hearing, if necessary, to address [Evans'] claims challenging the effectiveness of trial counsel.Commonwealth v. Evans, 2021 WL 856153, at *6 (Pa. Super. Mar. 8, 2021) (footnote omitted); ECF No. 13 Ex. 3 at 15-16.
Thus, although the Superior Court vacated the order of the PCRA court that dismissed Evans' PCRA petition, the Superior Court's decision was not a termination in Evans' favor. Rather, the matter was sent back to the PCRA court for further proceedings.
After the parties filed their briefs in this case, further developments have occurred in state court of which this Court may take judicial notice. Specifically, Evans' criminal docket sheet reflects that, on September 6, 2022, the PCRA court entered an order dismissing the PCRA petition. See CP-25-CR-0002901-2015, at 42. On September 26, 2022, Evans filed an appeal of that order, which has been docketed in the Pennsylvania Superior Court at No. 1093 WDA 2022. That appeal remains pending. Thus, the state court criminal proceedings have not terminated in Evans' favor. On the contrary, the matter is currently on appeal and remains unresolved.
Evans cannot state a claim for malicious prosecution against Defendants Lorah and Bogart because one of the elements of this claim requires the termination of the criminal proceedings in his favor. This has not occurred. Thus, the motion to dismiss of Defendants Lorah and Bogart should be granted without prejudice to commence a new action if and when his criminal proceedings are resolved in his favor.
III. Conclusion
It is recommended that the motion to dismiss filed by Defendants Lorah and Bogart be granted.
Litigants who seek to challenge this Report and Recommendation must seek review by the district judge by filing objections by November 21, 2022 or by November 28, 2022 for Unregistered ECF Users. Any party opposing the objections shall file a response by December 12, 2022. Failure to file timely objections will waive the right of appeal.