Opinion
Civil Action 3:22-cv-11
02-07-2024
DARWIN MAURICE HERRING, SR. Plaintiff, v. DET. ASHLEY DAY, SGT. CHRISTOPHER MOSER, RICHARD JOHNSON, AMANDA BRANDT, and CITY OF ALTOONA Defendants.
Stephanie L. Haines District Judge
REPORT AND RECOMMENDATION ECF NOS. 49 AND 58
KEZIA O. L. TAYLOR UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
It is respectfully recommended that the Motion to Dismiss filed by Defendants City of Altoona, Ashley Day, and Christopher Moser be granted. ECF No. 49. It is also recommended that the Motion to Dismiss filed by Defendant Amanda Brandt be granted. ECF No. 58. Finally, it is recommended that any § 1983 claims where judgment for Plaintiff would imply the invalidity of his conviction or sentence for Plaintiff's 2020 arrest and subsequent conviction on multiple felony drug charges should be dismissed without prejudice pursuant to the doctrine of Heck v. Humphrey, 512 U.S. 477 (1994).
II. REPORT
A. Factual Allegations
Presently before the Court is the Motion to Dismiss filed by Defendants City of Altoona (“City”), Ashley Day (“Day”) and Christopher Moser (“Moser”), who are police officers with the Altoona Police Department (“APD”). ECF No. 49. Also pending, is the Motion to Dismiss filed by Defendant Amanda Brandt (“Brandt”), who is a former police officer with the APD. ECF No. 58.
On June 29, 2023, Plaintiff filed his Second Amended Complaint, adding former City of Altoona Police Officer Amanda Brandt as a party defendant. ECF No. 44. Consequently, Brandt moved to dismiss the Second Amended Complaint after the motion filed by the City of Altoona, Ashley Day, and Christopher Moser. ECF Nos. 58 & 49, respectively.
Pro se Plaintiff, Darwin Maurice Herring, Sr. (“Plaintiff”), filed this civil rights action on January 26, 2022. He alleges claims relating to an arrest that occurred on January 29, 2018, and subsequent prosecution for which he was acquitted of all charges on March 24, 2020. Specifically, the Second Amended Complaint contains six (6) counts, only five of which are relevant here: 1) Count I against all individual Altoona Police Department (“APD”) Defendants for malicious prosecution in violation of the Fourth and Fourteenth Amendments; 2) Count II against all individual Defendants for § 1983 conspiracy; 3) Count III against all individual APD Defendants for § 1983 failure to intervene; 4) Count IV against Defendant City for § 1983 municipal liability; and 5) Count V against all individual Defendants for Pennsylvania state law malicious prosecution. ECF No. 44.
Pursuant to the prison mailbox rule, Plaintiff's initial complaint is deemed filed on the day he delivered the complaint to prison officials for mailing. See Houston v. Lack, 108 S.Ct. 2379 (1988) (deeming a Pro se prisoner's notice of appeal filed “at the time petitioner delivered it to the prison authorities for forwarding to the court”). Here, Plaintiff's original Complaint attached to his Motion to Proceed Informa Pauperis, and the date stamp on the mailing envelope, are dated January 26, 2022. ECF No 1-1, ECF No. 1 and ECF No. 1-3, respectively.
Count VI for Pennsylvania state law defamation is against Defendant Richard Johnson only. He is not a moving defendant.
Factual Allegations Relating to Plaintiff's Federal and State Malicious Prosecution Claims
Just prior to January 24, 2018, nonmoving Defendant Richard Johnson (“Johnson”) gave a statement to Defendant Officer Brandt, that on December 28, 2017, Plaintiff kidnapped and robbed Johnson of $500 in cash and various belongings. Id.¶ 19. Johnson also reported that Plaintiff's brother, Dante Herring, participated in the kidnapping and robbery. Id. ¶ 20. Plaintiff further avers that at the time of his criminal trial related to these events, Johnson would testify that he did not know Dante Herring. Id. Plaintiff alleges that Defendant Brandt took Johnson's initial statement but does not allege that Defendant Brandt took any further action. Id. ¶¶ 21-22.
Thereafter, Defendant Day was assigned to the investigation. Day contacted Johnson and instructed him to come to the station for an interview. Day and Johnson reviewed Johnson's initial statement to which Johnson made no changes. On January 18, 2018, Defendant Day also compiled two eight-picture photo line-ups; Johnson picked out the Plaintiff and his brother Dante as the persons who tied him up, robbed him, and burglarized his residence. Day drafted a 13-count criminal complaint on January 23, 2018, and filed the complaint, along with an affidavit of probable cause on January 24, 2018. See Criminal Complaint & Affidavit of Probable Cause, ECF No. 49-1 at 1-9. Plaintiff alleges that Johnson's statements reported in the Affidavit of Probable Cause were false. ECF No. 44 ¶¶ 19, 31.
Although not attached to Plaintiff's Complaint, the Court considers the Police Criminal Complaint and supporting Affidavit of Probable Cause attached to Defendants' moving documents because Plaintiff essentially reprints the Affidavit of Probable Cause in his Complaint [ECF No. 7] and relies upon both throughout the Second Amended Complaint and responsive submissions to the Court. ECF Nos. 44, 66, 67; see also Arizmendi v. Lawson, 914 F.Supp. 1157, 1160-61 (E.D. Pa. 1996) (citing Pension Ben. Guar. Corp. v. White Consol. Ind., 998 F.2d 1192, 1196-97 (3d Cir. 1993)) (In resolving a Rule 12(b)(6) motion to dismiss, a court may look beyond the complaint to “documents referenced in the complaint or essential to a plaintiff's claim which are attached to a defendant's motion.”). Accordingly, the Court may take into consideration the Affidavit of Probable Cause and Criminal Complaint attached to the Motion to Dismiss without converting Defendants' motions into motions for summary judgment.
On January 29, 2018, Defendant Officers Moser and Day arrested Plaintiff. Id. ¶ 24. Plaintiff alleges that these officers conducted a warrantless and destructive search of his vehicle and residence. Id. ¶¶ 25-28. Although a rifle was found, Plaintiff was not prosecuted for the possession of the rifle because the search was later found to be illegal. He was only arrested for the accusations of robbery and kidnapping made by Defendant Johnson. Id. ¶¶ 30-31. Plaintiff alleges that at the time he was charged, Defendant Day threatened Plaintiff that “he would do everything in his power to assure Plaintiff would not see the light of day.” Id. ¶ 33. In April 2018, Plaintiff posted bail for the robbery and kidnapping charges. Id. ¶ 32. He remained out on bail until January of 2020 when he was arrested on various drug charges. Id. ¶¶ 34-35. On March 24, 2020, a jury acquitted Plaintiff of the kidnapping and robbery charges. Id. ¶ 38.
Factual Allegations relating to Conspiracy
Plaintiff states that he is an ex-drug dealer who relocated to Altoona in order to “live his life as a law[-]abiding citizen, making an honest living via a few business ventures he has opened[.]” Id. ¶ 12. He alleges that because he used to sell drugs, the APD Defendants believed that his businesses were started with drug money and that Plaintiff continued to engage in this illegal activity. Id. ¶ 13. On August 21, 2015, Defendant Moser and others conducted a warrantless search of Plaintiff's barbershop, seizing DVRs and laptops. Id. ¶¶ 14-15. Police found a small bag of marijuana and Plaintiff was arrested. Plaintiff alleges that his personal property was never returned, despite his repeated requests, because of an ongoing police investigation. Id. ¶¶ 16-18.
Years later, in January of 2020, Defendant Moser filed charges against Plaintiff, alleging that he was a worker for an illegal drug enterprise. On January 29, 2020, upon learning of the charges, Plaintiff turned himself in to authorities. Defendant Moser told Plaintiff that “he would make sure that [Plaintiff] spent the rest of his life in prison.” Id. ¶¶ 35-36. Although Plaintiff alleges that a “trumped up” “corrupt organization” charge was dropped, Plaintiff was charged with seven drug-related offenses. Id. ¶¶ 36, 48; ECF No. 49-4. After a jury trial on January 11, 2022, Plaintiff was found guilty on all counts and is presently serving a sentence of 25 to 127 years. See Docket Sheet, Commonwealth of Pa. v. Darwin Maurice Herring, Sr., CP-07-CR-722-2020 at 57 (Ct. Comm. Pleas of Blair Cnty.), ECF No. 49-4 at 5-7.
In addition to the complaint, courts may consider matters of public record and other matters of which a court may take judicial notice on a motion to dismiss. See 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)).
Factual Allegations relating to Municipal Liability
Plaintiff alleges that the City had a practice of targeting new residents, especially African Americans, by using confidential informants and providing favors to them in exchange for false evidence, “building and proceeding with unsupported charges,” and withholding exculpatory evidence. ECF No. 44 ¶¶ 43-46. He specifically identifies Defendant Moser as using his seniority to compel other officers and witnesses to engage in misconduct. Id. ¶¶ 49-50. He also alleges that both the APD and the City failed to train, supervise, and discipline their police officers and the Internal Affairs Division (“IAD”). Id. ¶ 51 (a)-(j).
B. Legal Standards
In deciding a motion to dismiss under Rule 12(b)(6), the court must determine whether the complaint contains “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic v. Twombly Corp., 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.” Id. (citing Twombly, 550 U.S. at 570). Although the court must accept as true the allegations in the complaint, the court is not “‘compelled to accept unsupported conclusions and unwarranted inferences, or a legal conclusion couched as a factual allegation.'” Castleberry v. STI Grp., 863 F.3d 259, 263 (3d Cir. 2017) (quoting Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (en banc)). In other words, a “presumption of truth attaches only to those allegations for which there is sufficient ‘factual matter' to render them ‘plausible on [their] face.'” Schuchardt v. President of the U.S., 839 F.3d 336, 347 (3d Cir. 2016) (quoting Iqbal, 556 U.S. at 679). “Conclusory assertions of fact and legal conclusions are not entitled to the same presumption.” Id.
In addition, a court must employ less stringent standards when considering Pro se pleadings 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.”) (citing Holder v. City of Allentown, 987 F.2d 188, 194 (3d Cir. 1993)). 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).
Finally, the Court recognizes that in a civil rights action, when dismissing a case for failure to state a claim, a court must give the plaintiff an opportunity to amend a deficient complaint, regardless of whether the plaintiff requests to do so, unless amendment would be inequitable or futile. See Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007).
C. Analysis
Section 1983 of the Civil Rights Act 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 any 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 .
42 U.S.C. § 1983. To state a claim for relief under this provision, a plaintiff must demonstrate that the conduct in the complaint was committed by a person or entity acting under color of state law and that such conduct deprived the plaintiff of rights, privileges or immunities secured by the Constitution or the laws of the United States. Piecknick v. Commonwealth of Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994). Section 1983 does not create rights; it simply provides a remedy for violations of those rights created by the United States Constitution or federal law. Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996).
1. Motions to Dismiss filed by the City, Day, Moser and Brandt. ECF Nos. 49 and 58
a. Statute of Limitations for claims accruing before January 26, 2020
Defendants move to dismiss any claims for unreasonable search and seizure, false arrest, false imprisonment and all derivative claims related to them (municipal liability, failure to intervene, and conspiracy) which accrued prior to January 27, 2020 as time barred. ECF No. 50 at 5-6. Generally, a limitations defense may not be raised by motion, but must be raised in the answer. See Fed.R.Civ.P. 8(c) & 12(b); Robinson v. Johnson, 313 F.3d 128, 135 (3d Cir. 2002). “While the language of Fed.R.Civ.P. 8(c) indicates that a statute of limitations defense cannot be used in the context of a Rule 12(b)(6) motion to dismiss, an exception is made where the complaint facially shows noncompliance with the limitations period and the affirmative defense clearly appears on the face of the pleading.” Oshiver, 38 F.3d at 1384 n.1. (citing Trevino v. Union Pac. R.R. Co., 916 F.2d 1230 (7th Cir. 1990); 5A Wright and Miller, Federal Practice and Procedure; Civil 2d, § 1357). Here, the allegations of Plaintiff's Second Amended Complaint pertaining to the claims of unreasonable search and seizure, false arrest, false imprisonment, and related derivative claims are premised upon events that occurred in 2018 and before.
Defendants argue that the date the complaint is lodged with the motion to proceed in forma pauperis is the date that the complaint is filed for purposes of the statute of limitations. As explained at supra note 2, the operative date is the date the complaint is delivered to prison authorities for mailing. Here, that date was January 26, 2020.
Congress has not established a time limitation for a § 1983 cause of action. Wilson v. Garcia, 471 U.S. 261, 266 (1985), superseded by statute as recognized in, Kasteleba v. Judge, 325 Fed.Appx. 153, 156 (3d Cir. 2009). The United States Supreme Court has indicated, however, that courts are to consider § 1983 actions as tort actions and borrow the statute of limitations for state tort causes of action. Wilson, 471 U.S. at 278. In Pennsylvania, the statute of limitations for tort actions is two years. 42 Pa. Con. Stat. Ann. § 5524. Therefore, for § 1983 actions brought in Pennsylvania federal courts, the appropriate limitations period is two years. See Smith v. City of Pittsburgh, 764 F.2d 188, 194 (3d Cir. 1985).
Federal law, however, governs when a § 1983 cause of action accrues, that is, when the statute of limitations begins to run. See Wallace v. Kato, 549 U.S. 384, 388 (2007). Under federal law, “‘the limitations period begins to run from the time when the plaintiff knows or has reason to know of the injury which is the basis of the section 1983 action.'” Montgomery v. DeSimone, 159 F.3d 120, 126 (3d Cir. 1998) (quoting Genty v. Resol. Tr. Corp., 937 F.2d 899, 919 (3d Cir. 1991)). “The cause of action accrues even though the full extent of the injury is not then known or predictable.” Wallace, 549 U.S. at 391 (citations omitted).
Here, affording Plaintiff the most liberal construction of his Pro se Second Amended Complaint, Plaintiff's claims are time barred except for the claim of malicious prosecution, which accrued on March 24, 2020, when Plaintiff was acquitted on the kidnapping and burglary charges. Plaintiff concedes as much in his responsive submissions. See ECF Nos. 66 & 67 at 4.
Plaintiff's responses at ECF Nos. 66 & 67 appear to be duplicates. The Court will cite only to ECF No. 67 when referring to Plaintiff's Response.
Therefore, it is recommended that any claims for unreasonable search and seizure, false arrest, false imprisonment, and related derivative claims (municipal liability, failure to intervene, conspiracy) be dismissed with prejudice as time barred. Any attempt to amend the Second Amended Complaint as to these claims would be futile as a matter of law.
b. Malicious Prosecution
In order to state a claim for malicious prosecution pursuant to § 1983, Plaintiff must allege 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 a deprivation of liberty consistent with the concept of seizure as a consequence of a legal proceeding.”Kossler v. Crisanti, 564 F.3d 181, 186 (3d Cir. 2009) (quoting Estate of Smith v. Marasco, 318 F.3d 497, 521 (3d Cir. 2009)), abrogated in, Thompson v. Clark, 596 U.S. 36, 39 (2022) (holding that to demonstrate a favorable termination of a criminal prosecution for purposes of a Fourth Amendment malicious prosecution claim, a plaintiff must only show that his prosecution ended without a conviction).
Defendants argue that Plaintiff's malicious prosecution claims under state and federal law must be dismissed because he has failed to alleged facts showing that the criminal proceedings for the kidnapping and burglary charges were initiated without probable cause.
“Both state and federal claims of malicious prosecution require the plaintiff to show that the defendants acted without probable cause.” Bayliss v. Borough of Darby, Civil Action No. 155739, 2016 WL 6495120, at *5 (E.D. Pa. Nov. 2, 2016).
“[P]robable cause to arrest exists when the facts and circumstances within the arresting officer's knowledge are sufficient in themselves to warrant a reasonable person to believe than an offense has been committed by the person to be arrested.” Orsatti v. N.J. State Police, 71 F.3d 480, 483 (3d Cir. 1995) (citing U.S. v. Cruz, 910 F.2d 1072, 1076 (3d Cir. 1990) (other citations omitted)). “Probable cause to arrest requires more than mere suspicion; however, it does not require that the officer have evidence sufficient to prove guilt beyond a reasonable doubt.” Id. at 482-83 (citing U.S. v. Glasser, 750 F.2d 1197, 1205 (3d Cir. 1984)). Instead, there must be “a ‘fair probability' that the person committed the crime at issue.” Wilson v. Russo, 212 F.3d 781, 789 (3d Cir. 2000) (citing Sherwood v. Mulvihill, 113 F.3d 396, 401 (3d Cir. 1997)).
Here, Defendant Day drafted an affidavit of probable cause along with a criminal complaint related to the alleged kidnapping and burglary. Day relied on the victim statement of Defendant Johnson. The rule in the Third Circuit is that victim statements are “typically sufficient to establish probable cause in the absence of ‘[i]ndependent exculpatory evidence or substantial evidence of [a] witness's own unreliability that outweigh[s]' the probable cause that otherwise exists.” Dempsey v. Bucknell University, 834 F.3d 457, 477-78 (3d Cir. 2016) (quoting Wilson, 212 F.3d at 790). Plaintiff alleges no facts as to why Defendants Brandt and Day could not rely on Johnson's report, nor has he alleged facts of exculpatory evidence available to the officers at the time Johnson gave his statements to Brandt and Day.
Specifically, Day's Affidavit of Probable Cause states that Johnson reported to Defendant Brandt that Plaintiff invited him to an after-hours drinking establishment that Plaintiff runs on the weekends. See Affidavit of Probable Cause, ECF No. 49-1 at 8. After Johnson arrived, Plaintiff locked the door behind him. Id. Plaintiff's brother, Dante, then came into view wearing a bandana on his face, covering his nose and face. Id. Johnson reported that Dante had a pistol and was pointing it at Johnson's face. Id. Dante told him to get on the ground and Johnson looked to Plaintiff to ask him what was going on. Id. Dante then pushed Johnson to the ground and hit him above the ear with the pistol. Id. His hands were tied with zip ties behind his back and then his legs were tied together. Id. They placed duct tape over his mouth and around his head. Id. They then emptied Johnson's pockets, taking his driver's license, two (2) debit cards, his cell phone, $400-$500 in cash, cigarettes, lighter, and Steelers gloves. Id. They also took the keys to his car and house. Id. They then asked him where the valuables were in his house and who was present at his house. Id. Johnson was unable to hear them through the duct tape, so they removed it. Johnson responded as to where items were in his house as they pointed a gun at him. Id. Johnson told them that his father-in-law and two brothers-in-law were working on his house, Paul Clapper, Sr., Paul Clapper, Jr., and Robert Clapper. Id. Plaintiff stayed with Johnson as Dante left and went to Johnson's house. Id.
Dante returned and forced Johnson at gunpoint to call his in-laws to tell them to leave Johnson's residence. Id. at 9. Dante left again and then returned reporting that the in-laws were still at Johnson's residence. Id. Dante forced him again to call the Clappers to tell them to leave. Id. At that time, a third person arrived who stayed with Johnson while Dante and Plaintiff left. Id. By the time they returned, Johnson had been tied up on the ground for about an hour and a half or two hours. Id. He believed that they were going to kill him and said: “Don't do it.” Plaintiff then untied Johnson. Id. They returned his keys and left. Id.
The Affidavit continues that after being assigned to the case, Defendant Day contacted Johnson and instructed him to come into the station for an interview. They reviewed his written statement made during the initial report with Defendant Brandt. Johnson made no changes. Defendant Day compiled two eight-picture photo lineups. Johnson identified both Plaintiff and Dante as the persons who tied him up, robbed him, and burglarized his residence on December 28, 2017. Id.
The Affidavit concludes with the statement that on January 22, 2018, Paul Clapper Sr. and Paul Clapper Jr. came to the station to give their statements. Both witnesses confirmed Johnson's report that while working on Johnson's residence, a black male came through the door and took two boxes and a small lunch cooler out of the residence. Paul Sr. indicated that he just assumed he was a friend of Johnson's because others had come by in the past to pick up items at the residence. Both men identified Dante from a 16-picture lineup as the man that removed items from Johnson's residence on December 28, 2017. Id.
In evaluating whether an officer's affidavit establishes probable cause, the court focuses its analysis on whether the officer “‘knowingly and deliberately, or with a reckless disregard for the truth, made false statements or omissions that create[d] a falsehood in applying for a warrant.” Sherwood, 113 F.3d at 399. Here, Plaintiff alleges in the Second Amended Complaint that Defendant Johnson lied to Defendants Brandt and Day. ECF No. 44 ¶ 58. He pleads only a conclusory statement that Defendants knew Johnson's statements were false but does not allege facts as to why or how they knew Johnson's statements were false. Id. He continues that the Defendants fabricated evidence and intentionally withheld exculpatory evidence, but again, he does not allege facts as to what evidence was fabricated and what exculpatory evidence was withheld. Id. ¶ 59. Conclusory assertions of fact are not entitled to a presumption of truth on a motion to dismiss. Schuchardt, 839 F.3d at 347 (quoting Iqbal, 556 U.S. at 679) (a “presumption of truth attaches only to those allegations for which there is sufficient ‘factual matter' to render them ‘plausible on [their] face.'”). Plaintiff merely points to his acquittal as evidence that probable cause did not exist to support the charges. ECF No. 44 ¶ 61. An acquittal at trial does not negate the existence of probable cause sufficient to initiate a prosecution. See Zimmerman v. Corbett, 873 F.3d 414, 418-19 (3d Cir. 2017).
Consequently, the Court is unable to perform the Wilson analysis which requires the district court to “identify any improperly asserted or omitted facts and, if it determines there were reckless misrepresentations or omissions, ‘excise the offending inaccuracies and insert the facts recklessly omitted' from the affidavit and assess whether the reconstructed affidavit would establish probable cause.” Dempsey v. Bucknell University, 834 F.3d 457, 470 (3d Cir. 2016) (quoting Wilson v. Russo, 212 F.3d 781, 789 (3d Cir. 2000)).
Plaintiff also emphasizes that at trial, Johnson testified that he had never met his brother Dante and did not know who Dante was. The Affidavit, however, indicates that Johnson picked Dante out of a photo lineup.
The only factual matter offered by Plaintiff concerning the alleged absence of probable cause appears in his responsive brief. ECF No. 67. Plaintiff contends that Defendant Day failed to investigate certain assertions by Johnson. He argues that Johnson told her that he was pistolwhipped during the alleged incident and suffered “a lump” on his head that was “now gone” although it was “still sore and may [still] be bruised.” Yet, Day failed to determine whether Johnson's head was actually bruised through personal observation or medical examination and simply took Johnson at his word. Pl's Resp., ECF No. 67 at 7. This alleged deficiency in Day's investigation will not outweigh the probable cause established by considering the totality of circumstances set out in the Affidavit of Probable Cause. See Orsatti, 71 F.3d at 484 (probable cause analysis “focuse[s] on the information the officers had available to them, not on whether the information resulted from exemplary police work”); Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 790 n.8 (3d Cir. 2000) (“[An officer is] not required to undertake an exhaustive investigation in order to validate the probable cause that, in his mind, already existed.”) (citations omitted).
Plaintiff further takes issue with the fact that Day did not explore why Johnson waited 17 days to report the incident to police. He contends, incorrectly, that Day baldly asserted that Johnson's delay in reporting the kidnapping was because he was scared. ECF No. 67 at 6. The Affidavit of Probable Cause, however, states that Johnson indicated he failed to report the incident sooner because he was initially scared to report it. ECF No. 49-1 at 8 ¶ 1. Johnson's explanation would make sense to a reasonable police officer considering the nature of Johnson's accusations against Plaintiff. This alleged deficiency does not outweigh the probable cause established by the totality of circumstances alleged in the Affidavit.
Defendant Day included 13 charges in the Criminal Complaint. Unlike a claim for false arrest, a finding of probable cause on one criminal charge does not foreclose a claim for malicious prosecution for other charges involving different elements. Johnson v. Knorr, 477 F.3d 75, 84-85 (3d Cir. 2007). Therefore, the Court must consider whether probable cause supported the initiation of criminal proceedings on each charge. Id. at 85. Plaintiff was charged with the following offenses from the Pennsylvania Crimes Code, 18 Pa. C.S.:
Section 2901 (a)(2), Kidnapping, concerns confining another for a substantial period in an isolated place to facilitate commission of any felony. The Affidavit establishes probable cause on this charge because Johnson described his confinement at the after-hours bar by Plaintiff and Dante, with his hands zip tied and his legs tied together. After restraining Johnson, Dante proceeded to Johnson's house to take items of his personal property. Thereafter, Plaintiff accompanied Dante back to Johnson's residence while a third person kept watch over Johnson. A reasonable officer could conclude based on the victim's statement, there was a fair probability that Plaintiff committed the offense of Kidnapping.
Likewise, § 3701 (a)(1)(ii), Robbery, requires that, in the course of committing a theft, a person threatens another with immediate serious bodily injury. Johnson's statement that he was restrained with zip ties while Plaintiff and Dante stole the contents of his pockets, including his cell phone and $400-$500 in cash, would lead a reasonable officer to conclude that probable cause existed to support the charge of Robbery.
Section 903(a)(1), Criminal Conspiracy, provides that a person is guilty of conspiracy with another to commit a crime if with the intent of promoting or facilitating its commission, he agrees with another that they will engage in conduct which constitutes a crime. Here, a reasonable officer could conclude that Plaintiff and Dante agreed and developed a plan to rob Johnson. The victim's statement reflects that they chose the place, the restraints that were used, and seemingly decided ahead of time that Dante would go to Johnson's residence while Plaintiff remained with Johnson. Johnson identified both Plaintiff and Dante from photo lineups as the men who tied him up, robbed his person and burglarized his residence. The Clappers independently identified Dante from a photo lineup as the individual who carried items out of Johnson's residence. Therefore, a reasonable officer could conclude that there was a fair probability that Plaintiff committed the offense of Criminal Conspiracy.
Section 2702(a)(4), Aggravated Assault, involves the infliction or attempt to inflict, intentionally or knowingly, bodily injury to another with a deadly weapon. With the presence and threat of the firearm during the kidnapping and robbery, a reasonable officer could conclude that probable cause supported the charge of Aggravated Assault.
Section 3502(a), Burglary, concerns the entering of a building or occupied structure where any person is present with the intent to commit a theft. Here, based upon Johnson's statement, a reasonable officer could believe that Plaintiff accompanied Dante back to Johnson's residence with the intent to commit theft. Probable cause existed for this charge.
Section 3503(a)(1)(i), Criminal Trespass involving Buildings and Occupied Structures, concerns one who enters or gains entry by subterfuge and remains in any building or occupied structure knowing that he is not licensed or privileged to do so. Again, based upon Johnson's statement, a reasonable officer could believe that Plaintiff accompanied Dante back to Johnson's residence without the voluntary consent of Johnson. Probable cause also existed for this charge.
Section 3921(a), Theft by Unlawful Taking or Disposition, concerns a person who unlawfully takes, or exercises unlawful control over, movable property of another with intent to deprive him thereof. Plaintiff's taking of Johnson's personal property supports a reasonable officer's belief that Plaintiff committed the offense of Theft by Unlawful Taking.
Section 3925(a), Receiving Stolen Property, involves the intentional receipt, retention, or disposal of movable property of another knowing that it has been stolen, or believing that it has probably been stolen. Plaintiff's taking and retention of Johnson's property as reflected in Johnson's statement to Officers Brandt and Day, establishes probable cause for this offense.
Section 2706(a)(1), Terroristic Threats, concerns the communication, either directly or indirectly, of a threat to commit any crime of violence with intent to terrorize another. Plaintiff's words and actions towards Johnson, as reported to Officers Brandt and Day, would lead a reasonable officer to believe that Plaintiff threatened Johnson with violence during the kidnapping and robbery with the intent to terrorize him. Therefore, Day's charge of Terroristic Threats is supported by probable cause.
Section 2705, Recklessly Endangering Another Person, concerns reckless conduct which places or may place another person in danger of death or serious bodily injury. Here, a reasonable officer would believe that restraining an individual and robbing them, while threatening them with bodily harm could result, at a minimum, in serious injury. Probable cause supported this charge.
Section 2903(a), False Imprisonment, is a second-degree misdemeanor committed when an individual knowingly restrains another unlawfully and interferes substantially with his liberty. Johnson's detailed description of the restraints placed upon him by Plaintiff and Dante would lead a reasonable officer to believe that Plaintiff committed this offense. Thus, probable cause also supported this charge.
Section 2701(a)(2), Simple Assault, concerns the negligent infliction of bodily injury to another with a deadly weapon. With the presence and threat of the firearm during the kidnapping and robbery, and injury to Johnson's forehead from the pistol, a reasonable officer could conclude that probable cause supported the charge of simple assault.
Section 2709 (a)(1), Harassment. A person commits the crime of harassment when, with intent to harass, annoy or alarm another, the person: strikes, shoves, kicks or otherwise subjects the other person to physical contact, or attempts or threatens to do the same. The victim's statement reflects that Plaintiff intended to alarm Johnson and subject him to unwanted physical contact. A reasonable officer could conclude that there was a fair probability that Plaintiff committed the offense of Harassment.
In conclusion, Defendants' Motion to Dismiss Plaintiff's state and Fourth Amendment claims for malicious prosecution should be granted because all charges against the Plaintiff were initiated with probable cause.
Finally, Plaintiff's claim for malicious prosecution against Defendants Brandt and Moser should also be dismissed because Plaintiff is unable to allege that these officers initiated the criminal proceedings against him. Plaintiff's allegations reflect that Defendant Brandt's personal involvement was limited to taking Johnson's initial statement concerning the kidnapping and robbery. Plaintiff does not allege that Brandt took any further action. ECF No. 44 ¶¶ 21-22. As to Defendant Moser, Plaintiff alleges only that Moser arrested him. Id. ¶ 24. Plaintiff alleges no facts to suggest that Moser participated in initiating the criminal proceedings against him on the kidnapping and robbery charges. See Lozano v. New Jersey, 9 F.4th 239, 247 (3d Cir. 2021) (officer who was present at time of plaintiff's arrest, transported him to police station and assisted in processing him did not participate in initiating criminal proceedings); see also McGowan v. Borough of Ambridge, 2:06-cv-0858, 2008 WL 4200153, at *7 (W.D. Pa. Sept. 5, 2008) (“The initiation requirement limits the defendants against whom a plaintiff can assert a claim for malicious prosecution.”). For this additional reason, the malicious prosecution claims against Brandt and Moser should be dismissed.
Because of these bases for Brandt's dismissal, the Court need not discuss Defendants' statute of limitations arguments concerning the § 1983 malicious prosecution claim against Brandt.
For the above reasons, Defendants' Motion to Dismiss Plaintiff's state and Fourth Amendment claims for malicious prosecution should be granted. Moreover, any further attempt to amend would be futile as Plaintiff has been given multiple opportunities to amend his pleadings, along with explicit direction and guidance for doing so. Yet, he still failed to state a plausible claim upon which relief may be granted. See Jones v. Unknown D.O.C. Bus Driver & Transp. Crew, 944 F.3d 478, 483 (3d Cir. 2019) (concluding that, where inmate plaintiff “has already had two chances to tell his story, . . . further leave to amend would be futile.”).
c. Fabrication/Concealment of Evidence
Although not specifically set out in a separate count, Defendants, in liberally construing the Pro se Second Amended Complaint, move to dismiss any claim for fabrication/concealment of evidence that Plaintiff may be attempting to allege. ECF No. 50 at 11-12. Defendants argue that any such claim must also fail because Plaintiff fails to allege any facts as to what evidence was fabricated or undisclosed.
The United States Court of Appeals for the Third Circuit has held that “if a defendant has been convicted at a trial at which the prosecution has used fabricated evidence, the defendant has a stand-alone claim under section 1983 based on the Fourteenth Amendment if there is a reasonable likelihood that, without the use of that evidence, the defendant would not have been convicted.” Halsey v. Pfeiffer, 750 F.3d 273, 294 (3d Cir. 2014); see also Black v. Montgomery Cnty., 835 F.3d 358, 371 (3d Cir. 2016) (holding that “an acquitted criminal defendant may have a standalone claim . . . if there is a reasonable likelihood that, absent that fabricated evidence, the defendant would not have been criminally charged.”). The Halsey court admonished that “testimony that is incorrect or simply disputed should not be treated as fabricated merely because it turns out to have been wrong.” 750 F.3d at 295, quoted in, Black, 835 F.3d at 372. The Black court reiterated the directives in Halsey that “[t]here must be ‘persuasive evidence supporting a conclusion that the proponents of the evidence' are aware that evidence is incorrect or that the evidence is offered in bad faith.” Black, 835 F.3d at 372 (quoting Halsey, 750 F.3d at 295).
As discussed above, Plaintiff fails to plead any facts indicating what evidence was fabricated in the Affidavit of Probable Cause, nor does he state what exculpatory evidence was omitted or concealed. Although he alleges that Johnson's statements to officers were false and that the officers knew they were false, he offers no facts as to why or how the officers knew the statements were false.
Therefore, any attempt to state a Fourteenth Amendment claim for fabrication or concealment of evidence must fail. In addition, any attempt to amend would be futile as Plaintiff has amended his initial complaint twice, filed at least one supplement to the complaint, but has failed to set forth sufficient factual matter to support this claim. See ECF Nos. 14, 44, 51.
d. Derivative Claims of Conspiracy, Failure to Intervene, and Municipal Liability
Defendants move to dismiss Counts II through IV of the Second Amended Complaint because they are derivative claims and only viable if Plaintiff states a plausible underlying constitutional violation. ECF No. 50 at 13-15. Defendants are correct. Because Plaintiff's § 1983 claim for malicious prosecution must be dismissed, and because any other constitutional claim suggested by a liberal reading of the Second Amended Complaint fails, namely, a Fourteenth Amendment fabrication or concealment of evidence claim, the derivative claims in Counts II through IV must also fail. See Black, 835 F.3d at 372 n.14 (“Because the District Court reasoned that Black could not succeed on her underlying Fourth Amendment malicious prosecution or Fourteenth Amendment due process claims, it correctly determined that she could not succeed on her conspiracy claims.”) (citing Askew v. Millerd, 191 F.3d 953, 957 (8th Cir. 1999) (“[T]he plaintiff is additionally required to prove a deprivation of a constitutional right or privilege in order to prevail on a § 1983 civil conspiracy claim.”)). The Black court further noted that “the District Court correctly reasoned that the Monell claims against defendants Lower Merion Township and Montgomery County require a constitutional deprivation, but the District Court already dismissed the underling malicious prosecution and due process claims.” 835 F.3d at 372 n.14 (citing Brown v. Pa. Dep't of Health Emergency Med. Servs. Training Inst., 318 F.3d 473, 482 (3d Cir. 2003) (“[F]or there to be municipal liability, there still must be a violation of the plaintiff's constitutional rights.”)).
Similarly, in Smith v. Mensinger, the Third Circuit held that where a corrections officer fails to intervene in another officer's unconstitutional use of force, and had a reasonable opportunity to do so, he is liable under § 1983 for failure to intervene. 293 F.3d 641, 650 (3d Cir. 2002). Thus, in the absence of an underlying constitutional violation, a claim for failure to intervene cannot survive. Id.; see also Ogrod v. City of Philadephia, 598 F.Supp.3d 253, 273 (E.D. Pa. 2022) (“While Smith is clear that there is such a duty [to intervene] in connection with an excessive force violation, there is simply no clear authority that such a duty exists in other contexts.”); accord Onyiah v. City of Philadelphia, 600 F.Supp.3d 407, 416 (E.D. Pa. 2023).
Therefore, it is recommended that Defendants' Motion to Dismiss Plaintiff's claims for conspiracy, failure to intervene, and municipal liability in Counts II through IV, respectively, be granted. Any attempt to amend these claims would be futile as a matter of law.
Because Plaintiff has failed to state a constitutionally cognizable claim, the Court need not reach Defendants' arguments on qualified immunity.
e. Heck Bars Plaintiff's Incarceration Claims
Again, although not specifically set out in a separate count, Defendants, in liberally construing the Pro se Second Amended Complaint, move to dismiss § 1983 claims arising out of Plaintiff's 2020 arrest and conviction on multiple felony drug charges, and for which Plaintiff remains incarcerated, citing Heck v. Humphrey, 512 U.S. 477 (1994). ECF No. 50 at 12-13. Specifically, Defendants argue that any § 1983 claims premised upon allegations that Plaintiff was convicted of “trumped up” charges; that Moser acted unlawfully in obtaining Plaintiff's conviction; or that his conviction is otherwise invalid, are barred. Id. at 13. Plaintiff concedes that these claims are barred at this time, but that his conviction and sentence are currently on direct review in the Superior Court of Pennsylvania. ECF No. 67 at 9-10. Plaintiff concludes, therefore, that these claims should be dismissed at this time, but without prejudice. Id. at 10. The Court agrees.
In Heck, the United States Supreme Court instructed as follows:
[T]he district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. But if the district court determines that the plaintiff's action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit.
Id. at 487 (emphasis in original) (footnotes omitted).
Because Plaintiff concedes that his conviction or sentence has not been overturned, expunged, declared invalid, or “called into question by a federal court's issuance of a writ of habeas corpus[,]” the Court recommends dismissal without prejudice of any § 1983 claims that Plaintiff may be attempting to raise, which would attack the validity of his conviction or sentence for his 2020 arrest and subsequent conviction. See Heck, 512 U.S. at 487 (citation omitted).
III. CONCLUSION
It is respectfully recommended that the Motion to Dismiss filed by Defendants City of
Altoona, Ashley Day, and Christopher Moser be granted. ECF No. 49. It is also recommended that the Motion to Dismiss filed by Defendant Amanda Brandt be granted. ECF No. 58. Finally, it is recommended that any § 1983 claims where judgment for Plaintiff would imply the invalidity of his conviction or sentence for his 2020 arrest and subsequent conviction on multiple felony drug charges should be dismissed without prejudice pursuant to the doctrine of Heck v. Humphrey, 512 U.S. 477 (1994).
In accordance with the Magistrate Judges 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 a copy of this Report and Recommendation to file objections. Any party opposing the 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.