Opinion
Civil Action 2:22-cv-00047
08-30-2022
HENRY JAMES HOLMES, Plaintiff, v. WARDEN ORLANDO HARPER and PITTSBURGH POLICE OFFICER MICHAEL VEITH, Defendants.
Mark R. Hornak, United States District Judge
REPORT AND RECOMMENDATION ON DEFENDANT PITTSBURGH POLICE OFFICER MICHAEL VEITH'S MOTION TO DISMISS COMPLAINT (ECF NO. 17 )
This matter has been referred to the undersigned United States Magistrate Judge for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b).
CYNTHIA REED EDDY, CHIEF UNITED STATES MAGISTRATE JUDGE
I. Recommendation
Before the Court is the Motion to Dismiss filed by Defendant Pittsburgh Police Officer Michael Veith. (ECF No. 17). For the reasons below, it is respectfully recommended that the Motion to Dismiss be granted and the Complaint be dismissed against Defendant Veith.
The undersigned has addressed the Motion to Dismiss by Defendant Warden Orlando Harper (ECF No. 29) in a companion Report and Recommendation.
II. Report
A. Procedural and Factual Background
The Complaint Under The Civil Rights Act, 42 U.S.C. § 1983, was received by the Clerk of this Court on January 7, 2022, after having been transferred to this Court from the United States District Court for the Northern District of California. ECF No. 7. Plaintiff is proceeding pro se and has been granted leave to proceed in forma pauperis. ECF No. 6. The case was reassigned to the undersigned on March 24, 2022.
This is the third time Plaintiff, Henry James Holmes, has filed a civil rights complaint in which he asserts that Defendants Warden Orlando Harper and City of Pittsburgh Police Officer Michael Veith were involved in his arrest and prosecution and wrongful detention in connection with his failure to register as a sex offender. See Holmes v. Harper, et al., No. 17-cv-1278, and Holmes v. Veith, et al., No. 19-cv-1398, both filed in the United States District Court for the Western District of Pennsylvania. Plaintiff's previous complaints were dismissed with prejudice pursuant to 28 U.S.C. § 1915(e) as frivolous and for failure to state a claim upon which relief can be granted. The instant complaint fares no better.
The factual allegations contained in this latest filing by Plaintiff are as follows:
Upon Plaintiff arrival to the state of Penn 3/2014 from the state of Calif. Penn Megan's law registration Coordinator set Plaintiff's unlawful registration up for every three months without informing Plaintiff to report change of address in 72 hours after moving to a new address. August 29, 2014 Pittsburgh Police Officer Michael Veith arrested Plaintiff at his home at gunpoint. 51 Island Ave, Apt 13, McKees Rocks, PA 15136 charging Plaintiff with failure to report for registration. Plaintiff sat in the Allegheny County Jail for six months. Officer Veith and Prosecutor told bail Judge Plaintiff was arrested on the streets homeless (lie) so Plaintiff could not present evidence of innocence. During trial Allegheny County Public Defender Office retrieved Plaintiff's back pack from his McKees Rocks apartment containing his Calif court documents never presented to the Court under Brady B. Plaintiff retrieved his back pack from that office on or about Feb. 5, 2015 when the Allegheny County Jail released Plaintiff into the streets homeless forcing Plaintiff to sleep in parks for months.
Other unlawful reasons why Plaintiff sat in the County Jail for six months. Female prosecutor told the court Plaintiff was writing threatening letters to same lady in Los Angeles, Calif when Plaintiff resided in the City of Riverside County.
Complaint, Paragraph III - Statement of Claim (ECF No. 7) (quoted verbatim). By way of relief, Plaintiff seeks damages for “emotional distress, punitive damages for unlawful detainment and trespassing of false arrest. Loss of employment and denial of Section 8 Housing and having my personal info on the Megan's law website.” Id., Paragraph IV - Relief.
B. Standard of Review
A motion to dismiss filed pursuant to Rule 12(b)(6) tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). The Supreme Court of the United States has issued two decisions that pertain to the standard of review for failure to state a claim upon which relief could be granted. In Ashcroft v. Iqbal, the Supreme Court held that a complaint must include factual allegations that “state a claim to relief that is plausible on its face.” 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[W]ithout some factual allegation in the complaint, a claimant cannot satisfy the requirement that he or she provide not only ‘fair notice' but also the ‘grounds' on which the claim rests.” Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008). In determining whether a plaintiff has met this standard, a court must reject legal conclusions unsupported by factual allegations, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements;” “labels and conclusions;” and “ ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Iqbal, 556 U.S. at 678 (citations omitted). Mere “possibilities” of misconduct are insufficient. Id. at 679. The United States Court of Appeals for the Third Circuit has summarized the inquiry as follows:
To determine the sufficiency of a complaint, a court must take three steps. First, the court must “tak[e] note of the elements a plaintiff must plead to state a claim.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1947, 173 L.Ed.2d 868 (2009). Second, the court should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 1950. Third, “whe[n] there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for
relief.” Id. This means that our inquiry is normally broken into three parts: (1) identifying the elements of the claim, (2) reviewing the complaint to strike conclusory allegations, and then (3) looking at the well-pleaded components of the complaint and evaluating whether all of the elements identified in part one of the inquiry are sufficiently alleged.Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). Although this Court must accept the allegations in the Complaint as true, it is “not compelled to accept unsupported conclusions and unwarranted inferences, or a legal conclusion couched as a factual allegation.” Baroka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007) (citations omitted).
With this standard in mind, the undersigned now turns to its analysis and discussion of the pending motion.
C. Discussion
Defendant Veith seeks to have all claims against him dismissed. ECF No. 17. Plaintiff was ordered to respond to the motion by May 2, 2022. ECF No. 23. On May 10, 2022, the Clerk's Office received a nine-page document without a title from Plaintiff. ECF No. 32. The Clerk's Office filed the document as correspondence re: MTD (“Correspondence”). It is not entirely clear to the undersigned whether this Correspondence is intended to constitute Plaintiff's response to Defendant Veith's motion to dismiss or whether it constitutes something else. It does not appear to expressly respond to the motion and instead attaches the Response Order issued by the undersigned in this case on March 28, 2022; the April 18, 2000, felony criminal complaint filed against Plaintiff in the Superior Court of California (with handwriting endorsed upon it stating “forged by DA”); correspondence from the Office of the Prothonotary, Supreme Court of Pennsylvania, dated October 9, 2018; Pittsburgh MERCY to Light of Life Mission dated April 22, 2015, the Social Security Administration regarding monthly disability benefits beginning in September 2015, and the Superior Court of California, County of Riverside, dated April 4, 2022; and two emails between Plaintiff and the Allegheny County Emergency Rental Assistance Program dated April 26, 2022.
The time for filing a response to the motion has now passed and the undersigned will proceed to review the motion without the benefit of a response from Plaintiff. However, even if Plaintiff's Correspondence is treated as a response, nothing in that Correspondence gives the undersigned any pause in recommending that Defendant Veith's motion to dismiss be granted.
1. Duplicative suits are frivolous or malicious under 28 U.S.C. § 1915(e)(2)(B)(i)
While 28 U.S.C. § 1915 authorizes litigants like Plaintiff to proceed in forma pauperis, such status is a privilege which may be denied when abused. After granting IFP status, the Court must dismiss the case sua sponte if (i) the allegation of poverty is untrue, (ii) the action is frivolous or malicious, (iii) the complaint fails to state a claim upon which relief may be granted, or (iv) the complaint seeks money damages from a defendant who is immune from suit. 28 U.S.C. § 1915(e)(2). “Repetitious litigation of virtually identical causes of action may be dismissed under § 1915 as frivolous or malicious.” Banks v. County of Allegheny, 568 F.Supp.2d 579, 589 (W.D. Pa. 2008) (quoting McWilliams v. Colorado, 121 F.3d 573, 574 (10th Cir. 1997)). Here, the instant complaint is clearly repetitious of two other complaints that Plaintiff filed, of which the undersigned takes judicial notice, namely, Holmes v. Harper, et al., No. 17-cv-1278, and Holmes v. Veith, et al., No. 19-cv-1398.
A comparison of the three Complaints reveals that both Defendant Harper and Defendant Veith are named defendants in all three Complaints. Furthermore, essentially the same facts are alleged in all three Complaints. This comparison of the three Complaints reveals that the instant Complaint is clearly repetitious of his two previous Complaints, which were both dismissed with prejudice pursuant to 28 U.S.C. § 1915(e) as frivolous and for failure to state a claim upon which relief can be granted. In the Complaint at bar, Plaintiff again complains that Defendant Veith falsely arrested him in August of 2014 for failure to register a change of address as required by Megan's Law and that Defendant Veith lied about where Plaintiff was arrested, telling the bail judge that Plaintiff was homeless. In light of the foregoing, the undersigned finds the Complaint at bar to be duplicative or repetitive of Plaintiff's prior two cases against Defendant Veith. Therefore, it is recommended that this case be dismissed as frivolous/malicious pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). Amendment would be futile. The undersigned will now proceed to address each of Defendants' arguments seriatim.
2. Res Judicata Bars Any Claims Against Defendant Veith
In the alternative, the claims against Defendant Veith are barred by the doctrine of res judicata or claim preclusion. As explained by the United States Court of Appeals for the Third Circuit, the federal law of res judicata or claim preclusion involves a three-pronged test, and bars a second suit where “there has been (1) a final judgment on the merits in a prior suit involving (2) the same parties or their privies and (3) a subsequent suit based on the same cause of action.” Lubrizol Corp. v. Exxon Corp., 929 F.2d 960, 963 (3d Cir. 1991). The “purpose of [the res judicata] doctrine is to relieve the parties of the cost and vexation of multiple lawsuits, conserve judicial resources, prevent inconsistent decisions, and encourage reliance on adjudications.” Turner v. Crawford Square Apartments III, L.P., 449 F.3d 542, 551 (3d Cir. 2006).
The federal common law of claim preclusion is to be distinguished from the various states' laws of claim preclusion. Federal courts are sometimes called upon to give preclusive effect to state court judgments. The governing law in such cases is the state law of claim preclusion from the state of the prior state court judgment. See 28 U.S.C. § 1738 (full faith and credit statute); Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 380 (1985) (“This statute (i.e., Section 1738) directs a federal court to refer to the preclusion law of the State in which judgment was rendered. ‘It has long been established that § 1738 does not allow federal courts to employ their own rules of res judicata in determining the effect of state judgments ”). In contrast, federal courts are sometimes called upon to give preclusive effect to prior federal court judgments. The governing law in such cases is the federal common law of claim preclusion. Because Holmes' prior dismissals were from a federal court, the federal common law of preclusion applies.
In this case, all three prongs of the Lubrizol test are met. First, a District Court's order dismissing a complaint for failure to state a claim upon which relief can be granted constitutes a “final judgment on the merits” for the purposes of res judicata. See, e.g., Federated Dept. Stores, Inc. v. Moitie, 452 U.S. 394, 399 n. 3, (1981) (“The dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) is a ‘judgment on the merits' ” for purposes of res judicata). Here, the complaints filed in Case No. 2:17-cv-1278 and Case No. 2:19-cv-1398 were dismissed, in the alternative, for failure to state a claim upon which relief can be granted. The first prong of the Lubrizol is met. Next, Holmes was the plaintiff in both previous cases and Defendant Veith was a named defendant in both cases. The second prong, therefore, also is met.
Lastly, the third prong is met as well. Our Court of Appeals has explained this prong as follows:
In Athlone, we noted that the term “ ‘cause of action' cannot be precisely defined, nor can a simple test be cited for use in determining what constitutes a cause of action for res judicata purposes.” Id. (quoting Donegal Steel Foundry Co. v. Accurate Prods. Co., 516 F.2d 583, 588 n. 10 (3d Cir.1975)). Rather, we look toward the “essential similarity of the underlying events giving rise to the various legal claims.” Davis v. United States Steel Supply, 688 F.2d 166, 171 (3d Cir.1982) (in banc), cert. denied, 460 U.S. 1014, (1983) . . . This principle is “in keeping with ‘[t]he present trend . . . in the direction of requiring that a plaintiff present in one suit all the claims for relief that he may have arising out of the same transaction or occurrence.' ” [United States v.] Athlone, 746 F.2d [977] 984 [(3d Cir.1984)] (quoting 1B J. Moore & J. Wicker, Moore's Federal Practice ¶ 0.410[1], at 359 (2d ed.1983)).
In conducting this inquiry, we focus upon “whether the acts complained of were the same, whether the material facts alleged in each suit were the same, and whether the witnesses and documentation required to prove such allegations were the same.” Athlone, 746 F.2d at 984. A mere difference in the theory of recovery is not dispositive. Id. Thus, the fact that Lubrizol relies on a new theory of “reformation” will not prevent preclusion. In both suits the acts complained of, the material facts alleged, and the witnesses and documentation required to prove the allegations are all the same.Lubrizol Corp. v. Exxon Corp., 929 F.2d at 963.
Likewise here, the acts complained of against Defendant Veith in Plaintiff's prior two cases are the exact same acts complained of here. For this reason, it is recommended that Defendant Veith's motion to dismiss be granted and the claims against him be dismissed for failure to state a claim as the claims are barred by the doctrine of res judicata. Amendment would be futile.
3. The Claims Are Time-Barred
In the alternative, the claims against Defendant Veith are time-barred by the applicable two-year statute of limitations. The “false arrest” by Defendant Veith occurred on August 29, 2014; Plaintiff was released from Allegheny County Jail on or about February 7, 2015; Plaintiff plead guilty and was sentenced on March 6, 2015; penalties were accessed on March 12, 2015; and his Petition for Writ of Habeas Corpus was denied on November 26, 2018.
In Pennsylvania, the applicable statute of limitations for claims under 42 U.S.C. § 1983 is two years. Lake v. Arnold, 232 F.3d 360 (3d Cir. 2000). At the very earliest, this case was initiated on December 22, 2021, when the Complaint was lodged in the United States District Court for the Northern District of California. ECF No. 1. It is apparent from the face of the complaint, that the Complaint was filed well beyond the permissible time. Accordingly, it is recommended that the claims against Defendant Veith be dismissed as time-barred. Amendment would be futile.
4. Testimonial Immunity
In the alternative, Plaintiff's claims against Defendant Veith based on his testimony before the bail judge should be dismissed based on the doctrine of testimonial immunity. It is well established that witnesses are immune from § 1983 liability where the claim is based on allegations of perjury, either at trial or during pretrial proceedings. See Rehberg v. Paulk, 566 U.S. 356, 367 (2012). Here, Plaintiff claims that the testimony Defendant Veith provided to the bail judge was a lie. Defendant Veith argues that he is protected from liability under the doctrine of judicial testimonial immunity.
Defendant Veith's assertion of witness immunity is valid and precludes any § 1983 liability that is premised upon the testimony he proffered during Plaintiff's bail hearing. Amendment would be futile.
5. Failure to State a Claim
In the alternative, Plaintiff's claims against Defendant Veith based on his alleged false arrest of Plaintiff should be dismissed based on failure to state a claim. To maintain his false arrest claim, “a plaintiff must show that the arresting officer lacked probable cause to make the arrest.” Groman v. Twp. of Manalapan, 47 F.3d 628, 636 (3d Cir. 1995). See also Andrews v. Scuilli, 853 F.3d 690, 697 (3d Cir. 2017) (quoting Blaylock v. City of Philadelphia, 504 F.3d 405, 411 (3d. Cir. 2007)). “Probable cause exists when the totality of facts and circumstances are sufficient to warrant an ordinary prudent officer to believe that the party charged has committed an offense.” Id. As the Supreme Court of the United States has reiterated, “[p]robable cause ‘is not a high bar.' ” District of Columbia v. Wesby, 583 U.S.___, 138 S.Ct. 577, 586 (2018) (quoting Kaley v. United States, 571 U.S. 320 (2014)). A false arrest claim will fail if there was probable cause to arrest. Barna v. City of Perth Amboy, 42 F.3d 809, 819 (3d Cir. 1994) (holding that for an arrest to be justified, “[p]robable cause need only exist as to any offense that could be charged under the circumstances.”).
Here, Plaintiff alleges that Defendant Veith arrested him without probable cause. He asserts that the Megan's Law registration coordinator “set Plaintiff's unlawful registration up for every three months without informing Plaintiff to report change of address in 72 hours after moving to a new address.” Complaint, at p. 3. This assertion is belied by a letter attached to Plaintiff's Complaint from the Pennsylvania State Police to Plaintiff, dated April 1, 2014, which specifically states, “failure to report any changes to your residence(s) . . . within three business days of the change(s) is a violation of 18 Pa. C.S. § 4915.1, a felony criminal offense.” Complaint (ECF No. 7 at p. 14) (emphasis added). Plaintiff admits that he did not report his change of address in a timely manner, knowingly or not.
More importantly, however, Plaintiff's criminal docket, which the undersigned has taken judicial notice of, indicates that Plaintiff entered into a negotiated guilty plea to the failure to register charge. Defendant Veith, citing Heck v. Humphrey, correctly argues that this plea conclusively establishes that probable cause existed at the time of arrest. Therefore, it is recommended that Plaintiff's claim for false arrest against Defendant Veith be dismissed for failure to state a claim. Amendment would be futile.
Defendant Veith also argues that this claim should be dismissed because he is entitled to qualified immunity. Because the undersigned is recommending that the claim be dismissed for failure to state a claim, it is not necessary for the undersigned to consider this argument.
6. The Claims Are Barred by Heck v. Humphrey, 512 U.S. 447 (1994)
Lastly, to the extent that Plaintiff may be seeking monetary damages for his allegedly unlawful conviction or incarceration, those claims are barred by the holding of the Supreme Court of the United States in Heck v. Humphrey, 512 U.S. 447 1994). In Heck, the Supreme Court held that:
to recover damages [or other relief] for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus[.]Heck, 512 U.S. at 486-87 (footnote and internal citation omitted).
In his complaint, Plaintiff acknowledges that he has not had a favorable termination of his conviction as the conviction has not been invalidated or reversed. Thus, to the extent that he is alleging that his arrest or conviction was unconstitutional, his claims for monetary damages are barred by Heck v. Humphrey. See Nash v. Kenney, 784 Fed.Appx. 54, 57 (3d Cir. 2019) (“Nash's malicious-prosecution and speedy-trial claims-which challenge his post-arraignment detainment-are barred by the favorable-termination rule of Heck v. Humphrey”). Amendment would be futile.
III. Conclusion
For all the above reasons, it is respectfully recommended that the motion to dismiss filed by Defendant Veith be granted and leave to amend be denied as futile.
Any party is permitted to file Objections to this Report and Recommendation to the assigned United States District Judge. In accordance with 28 U.S.C. § 636(b), Fed.R.Civ.P. 6(d) and 72(b)(2), and LCvR 72.D.2, Plaintiff, because he is a non-electronically registered party, may file written objections to this Report and Recommendation by September 16, 2022 and Defendant Veith, because he is an electronically registered party, may file written file objections, if any, by September 13, 2022. The parties are cautioned that failure to file Objections within this timeframe “will waive the right to appeal.” Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). See also EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir. 2017) (describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error). Any party opposing objections shall have fourteen days from the date of service of objections to respond.