Opinion
Civil Action 22-1447 Re: ECF 13 17 20
09-27-2023
CHARLES DARNELL JONES, Plaintiff, v. JERRY HOBECK Police Officer, ESQUIRE JUDITH POTOKA PETRUSH District Attorney, FRANK PALLONE JR. Magisterial District Judge, Defendants.
William S. Stickman, District Judge.
REPORT AND RECOMMENDATION
MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE.
I. RECOMMENDATION
Plaintiff Charles Darnell Jones (“Plaintiff”) brings this action against Defendants Patrolman Jerry Hobeck, Assistant District Attorney Judith Potoka Petrush,and Magisterial District Judge Frank Pallone, Jr. for the alleged violation of his constitutional rights stemming from his arrest and prosecution for robbery, theft, and criminal mischief. ECF No. 4. Pending before the Court are Motions to Dismiss filed by each of the Defendants. ECF Nos. 13, 17, and 20.
In her Motion to Dismiss, Potoka Petrush states that she served as an Assistant District Attorney for the Office of the District Attorney for Westmoreland County. ECF No. 17. The Court adopts this correction.
For the following reasons, it is respectfully recommended that the Court grant the Motions to Dismiss and dismiss Plaintiff's claims with prejudice.
II. REPORT
A. FACTUAL AND PROCEDURAL BACKGROUND
On August 13, 2022, Plaintiff was arrested by Hobeck, a patrolman for the New Kensington Pennsylvania Police Department. ECF No. 4-1. Plaintiff was charged with two counts of felony robbery and three misdemeanors: theft by unlawful taking, criminal mischief, and tampering with evidence. Id. at 2.
The Affidavit of Probable Cause is attached to Plaintiff's Complaint and reflects that on August 13, 2022, Hobeck responded to a theft complaint lodged by Larry Hooks, a 75-year-old handicapped man who uses a cane to walk. Id. at 5. Mr. Hooks stated that he was gathering cans from a dumpster when a man later identified as Plaintiff approached him. Plaintiff yelled at Mr. Hooks to leave the area and threatened to break his car window. At that point, Plaintiff took Mr. Hooks' cane and “smashed his back window of his Malibu, and then left with his cane.” Id. Hobeck was approached by a nearby resident who identified Plaintiff by name as the assailant, and provided Plaintiff's address. Hobeck located Plaintiff and discussed the incident. Plaintiff explained that Mr. Hooks didn't “belong” in the area and then admitted that he broke Mr. Hooks' car window after Mr. Hooks failed to leave as instructed by Plaintiff. Id. Plaintiff reported that he gave the cane “to a friend so there wouldn't be any evidence.” Id. Plaintiff alleges that Hobeck fabricated the witness who allegedly identified him, Plaintiff's apparent confession, and the statement by Mr. Hooks that Plaintiff took Mr. Hooks' cane from him. ECF No. 4 at 5-6.
Based on the information obtained during Hobeck's investigation, Plaintiff was arrested. His arraignment was held on August 14, 2022, and bail was set in the amount of $100,000.Plaintiff was confined at the Westmoreland County Prison because he did not post bond.
See Commonwealth v. Jones, MJ-10105-CR-323-2022. (https://ujsportal.pacourts.us/Report/MdjDocketSheet?docketNumber=MJ-10105-CR-0000323 2022&dnh=VPFgRR0cTU6B1XWaBYFxsA%3D%3D).
Plaintiff's preliminary hearing was held on August 25, 2022, before Defendant Magisterial District Judge Pallone. Plaintiff alleges that Mr. Hooks testified that he could not be sure that Plaintiff was his assailant and denied accusing Plaintiff of robbery or threatening him. Id. Plaintiff alleges that Assistant District Attorney Potoka Petrush and Magisterial District Judge Pallone were “complicit” in Hobeck's attempt to “unlawfully and unconstitutionally detain, arrest, and incarcerate [Plaintiff] in Docket Number MJ-1-1-5-CR-0000323-2022.” Id. at 7. According to Plaintiff, Potoka Petrush “read [the] original criminal” into the record and Magisterial District Judge Pallone proceeded with Plaintiff's hearing despite Mr. Hooks' contradictory statements. Id. at 6-7. Plaintiff also alleges that Magisterial District Judge Pallone and Potoka Petrush violated his rights to due process by allowing Hobeck to “fabricate [and] falsify charges, statements, witnesses, [and] witness statements.” Id. at 4.
The docket reflects that Magisterial District Judge Pallone dismissed the robbery charges against Plaintiff but held the charges for theft, criminal mischief, and tampering with evidence for further proceedings. See n. 2, infra. At that point, the case was transferred to the Court of Common Pleas of Westmoreland County.Plaintiff successfully moved for bail reduction and was released from confinement on October 12, 2022. Id. After a bench warrant was issued on December 15, 2022, Plaintiff's bail was revoked and he was returned to Westmoreland County Prison. See n. 3 (state court docket at 3). On August 1, 2023, Plaintiff entered a negotiated guilty plea on the charges for theft, criminal mischief, and evidence tampering, and was sentenced to a period of confinement for 262 days. Id. at 4.
See Commonwealth v. Jones, No. CP-65-CR-0003118-2022 (https://ujsportal.pacourts.us/Report/CpDocketSheet?docketNumber=CP-65-CR-0003118-2022&dnh=9vdwvevGeB9Wl7APCK8WPA%3D%3D)
Plaintiff commenced this action on October 13, 2022, and was granted leave to proceed without prepayment of costs. ECF Nos. 1, 3. Plaintiff alleges that Defendants violated his rights by prosecuting and adjudicating the case against him. ECF No. 4. Plaintiff seeks relief in the form of lost wages during period of his incarceration, as well as compensatory and punitive damages for “false incarceration [and] the added embarrassment.” Id. at 4.
In response to the Complaint, Defendants filed the pending Motions to Dismiss. ECF Nos. 13, 17, and 20. Plaintiff failed to respond and this Court issued an Order to Show Cause why this action should not be dismissed for failure to respond. Plaintiff responded to the Order to Show Cause and requested and was granted an extension of time. He filed responses to the Motions to Dismiss in the weeks before pleading guilty for the crimes at issue. ECF Nos. 24, 25, 26, and 29.
The Motions to Dismiss are ripe for consideration.
B. STANDARD OF REVIEW
A complaint may be dismissed under Federal Rule of Civil Procedure 12(b)(6) for “failure to state a claim upon which relief can be granted.” “[D]etailed pleading is not generally required.” Connelly v. Lane Const. Corp., 809 F.3d 780, 786 (3d Cir. 2016). Rather, the rules require “‘only a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the ... claim is and the grounds upon which it rests.'” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (internal quotations omitted). Thus, to survive a motion to dismiss, a complaint must “state a claim to relief that is plausible on its face” by providing facts which “permit the court to infer more than the mere possibility of misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).
In assessing the sufficiency of a complaint, the Court must accept as true all material allegations in the complaint. All reasonable factual inferences must be viewed in the light most favorable to the plaintiff. Odd v. Malone, 538 F.3d 202, 205 (3d Cir. 2008). However, the Court need not accept bald assertions or inferences drawn by the plaintiff if they are unsupported by the facts set forth in the complaint. See Cal. Pub. Employees' Ret. Sys. v. Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the Court accept legal conclusions set forth as factual allegations. Twombly, 550 U.S. at 555. Thus, the United States Supreme Court has held that a complaint is properly dismissed under Fed.R.Civ.P. 12(b)(6) where the factual content does not allow the court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. at 678; see also Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (finding that, under Twombly, “labels and conclusions, and a formulaic recitation of the elements of a cause of action” do not suffice. The complaint therefore “must allege facts suggestive of [the proscribed] conduct” that are sufficient “to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s] of his claim.”). Id. at 233, 234.
Along with 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 Cnty. 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).
Pro se pleadings and filings, “however inartfully pleaded,” must be held to “less stringent standards than formal pleadings drafted by lawyers” Haines v. Kerner, 404 U.S. 519, 520 (1972). If the court can reasonably read pleadings to state a valid claim on which the litigant could prevail, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or a litigant's unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982); U.S. ex rel. Montgomery v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969) (A “petition prepared by a prisoner ... may be inartfully drawn and should ... be read ‘with a measure of tolerance'”); Freeman v. Dep't of Corr., 949 F.2d 360 (10th Cir. 1991). Under our liberal pleading rules, a district court should construe all allegations in a complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997) (overruled on other grounds); see also Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (discussing Fed.R.Civ.P. 12(b)(6) standard); Markowitz v. Ne Land Co., 906 F.2d 100, 103 (3d Cir. 1990) (same).
Yet there are limits to the court's procedural flexibility - “Pro se litigants still must allege sufficient facts in their complaints to support a claim ....they cannot flout procedural rules - they must abide by the same rules that apply to all other litigants.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citations omitted). Because Plaintiff is a Pro se litigant, the Court will consider the facts and make inferences where it is appropriate.
C. DISCUSSION
Plaintiff brings his claims under 42 U.S.C. § 1983. “To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).
Liberally construing Plaintiff's Complaint, the Court understands Plaintiff to assert a Fourteenth Amendment fabrication-of-evidence claim; Fourth Amendment claims for false arrest, false imprisonment, and malicious prosecution; and a claim for conspiracy.
Under the facts alleged, Magisterial District Judge Pallone contends that he is entitled to Eleventh Amendment and judicial immunity and Defendant Potoka Petrush argues that she enjoys absolute prosecutorial immunity.
Hobeck asserts that there was probable cause for Plaintiff's arrest for each of the charged crimes. At Plaintiff's preliminary hearing, the robbery charges that allegedly were fabricated were dismissed, however he was held on each of the remaining charges. Plaintiff later pleaded guilty to criminal mischief related to breaking Mr. Hooks' car window, tampering with evidence related to disposing of Mr. Hooks' cane, and a charge for theft of the same cane that supported the robbery charge. Hobeck argues that under these circumstances, Plaintiff cannot sustain any claim asserted against him. Defendants also assert that Plaintiff fails to state a claim for conspiracy.
For the reasons that follow, the Motions to Dismiss should be granted.
1. Magisterial District Judge Pallone
Plaintiff's allegations against Magisterial District Judge Pallone relate to his role in presiding over Plaintiff's preliminary hearing on criminal charges stemming from his arrest. However, judges are entitled to absolute immunity from civil rights claims that are based on acts or omissions taken in their judicial capacity, so long as they do not act in the complete absence of all jurisdiction. See Stump v. Sparkman, 435 U.S. 349, 355-56 (1978); Harvey v. Loftus, 505 Fed.Appx. 87, 90 (3d Cir. 2012) (per curiam); Azubuko v. Royal, 443 F.3d 302, 303-04 (3d Cir. 2006) (per curiam) (absolute judicial immunity attaches even if the act were done in furtherance of a conspiracy). An act is taken in a judge's judicial capacity if it is “a function normally performed by a judge[.]” Gallas v. Supreme Ct. of Pennsylvania, 211 F.3d 760, 768 (3d Cir. 2000). Moreover, “[g]enerally ... ‘where a court has some subject matter jurisdiction, there is sufficient jurisdiction for immunity purposes.'” Figueroa v. Blackburn, 208 F.3d 435, 443-44 (3d Cir. 2000) (quoting Barnes v. Winchell, 105 F.3d 1111, 1122 (6th Cir. 1997)). Judges of general and limited jurisdiction, including magisterial district judges, are entitled to judicial immunity. Id. at 441 (concluding that magisterial district judges, even though they preside over courts of limited jurisdiction, are entitled to protections of judicial immunity); see also Evans v. Lorah, No. 20-22, 2020 WL 2813317, at *3 (W.D. Pa. May 11, 2020), report and recommendation adopted, 2020 WL 2793088 (W.D. Pa. May 29, 2020) (dismissing Pro se litigant's § 1983 claims against a former magisterial district judge on screening pursuant to § 1915(e)(2)(B) on the basis of judicial immunity).
Plaintiff's claims against Magisterial District Judge Pallone concern only the judicial determinations he made throughout Plaintiff's preliminary hearing, and Plaintiff has not set forth any facts suggesting that Magisterial District Judge Pallone acted in the absence of jurisdiction. Accordingly, Magisterial District Judge Pallone is entitled to absolute immunity. Evans, 2020 WL 2813317, at *3; see also Blackwell v. Middletown Borough Police Dept, Civ. A. No. 12-825, 2012 WL 4033671, at *3-4 (M.D. Pa. May 30, 2012), report and recommendation adopted, 2012 WL 4025956 (M.D. Pa. Sept. 12, 2012) (dismissing Pro se plaintiff's claims against a magisterial district judge for failure to state a claim at screening because “judicial immunity ... expressly extends to Pennsylvania magisterial district court judges”) (citing Figueroa, 208 F.3d at 441); see also Youst v. Lancaster City Bureau Police Dep't, No. 20-3287, 2020 WL 6562073, at *3-*4 (E.D. Pa. Nov. 9, 2020) (magisterial district judge was entitled to absolute immunity where the only allegations against her rose from “judicial determinations she made and an order she entered in the course of [the plaintiff's] criminal arraignment and [in] setting his bail”).
Because Plaintiff's claims against Magisterial District Judge Pallone are barred by judicial immunity, any attempt to amend would be futile. Thus, it is recommended that the Court dismiss Plaintiff's claims with prejudice. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108, 110 (3d Cir. 2002) (stating that leave to amend should generally be granted “only if amendment would be inequitable or futile.”).
2. Assistant District Attorney Potoka Petrush
Potoka Petrush argues that all actions taken by her relating to Plaintiff's claims are subject to absolute prosecutorial immunity and dismissal is properly entered. Plaintiff responds that he states a claim for relief because she improperly pursued his prosecution despite obvious inconsistencies in the evidence presented during the preliminary hearing. ECF No. 29.
A prosecutor enjoys absolute immunity from liability for actions taken in connection with judicial proceedings. Odd v. Malone, 538 F.3d at 208, aff'd sub. nom. Schneyder v. Smith, 653 F.3d 313 (3d Cir. 2011). Absolute immunity from Section 1983 claims attaches to the prosecutor's decision to initiate a prosecution and generally includes activities conducted in court, such as presenting evidence or legal arguments. See Imber v. Pachtman, 424 U.S. 409, 424 (1976).
Employment as a prosecutor does not mean the prosecutor is immune from suit for every wrong committed. See Schneyder, 653 F.3d at 331. The “inquiry focuses on ‘the nature of the function performed, not the identity of the actor who performed it.'” Odd, 538 F.3d at 208 (quoting Light v. Haws, 472 F.3d 74, 78 (3d Cir. 2007)). “The court must ascertain just what conduct forms the basis for the plaintiff's cause of action, and it must then determine what function (prosecutorial, administrative, investigative, or something else entirely) that act served.” Schneyder, at 332. The court “focuses on the unique facts of each case” and carefully dissects the prosecutor's actions. Id. (citations omitted).
Plaintiff challenges the conduct of Potoka Petrush in using Hobeck's allegedly false statements to prosecute Plaintiff. Plaintiff alleges that Potoka Petrush should have not presented any of the information provided by Hobeck in the criminal complaint to the magisterial district court because she should have realized it was fabricated after hearing Hooks' testimony. ECF Nos. 4, 26, 29.
As stated, Plaintiff's allegations concern Potoka Petrush's participation at Plaintiff's preliminary hearing. Her conduct at the hearing is “intimately associated with the judicial phase of the criminal process” and thus is protected by absolute judicial immunity. See Odd, 538 F.3d at 208. To the extent that Plaintiff's allegations may be broadly construed to allege a conspiracy to prosecute him, Potoka Petrush's alleged participation concerns actions “connected with the initiation and conduct of a prosecution[.]” See Burns v. Reed, 500 U.S. 478, 491-92 (1991) (finding prosecutor's action of appearing before a judge and presenting evidence involved the prosecutor's role as “advocate for the State” rather than “administrator or investigative officer.”). As noted by the United States Court of Appeals for the Third Circuit:
The decision to initiate a prosecution is at the core of a prosecutor's judicial role. A prosecutor is absolutely immune when making this decision, even where he acts without a good faith belief that any wrongdoing has occurred. Harm to a falsely-charged defendant is remedied by safeguards built into the judicial system- probable cause hearings, dismissal of the charges-and into the state codes of professional responsibility.Kulwicki v. Dawson, 969 F.2d 1454, 1463-64 (3d Cir. 1992) (internal citations omitted). Because Potoka Petrush was acting as the state's advocate at Plaintiff's preliminary hearing, Plaintiff's claims necessarily fail. Amendment in this instance would be futile. Therefore, it is recommended that the Court grant the Motion to Dismiss filed by Potoka Petrush and dismiss the claim with prejudice.
3. Patrolman Hobeck
a. False Arrest/False Imprisonment
To state a claim for false arrest under the Fourth Amendment, a plaintiff must allege facts establishing that he was arrested without probable cause. See Orsatti v. New Jersey State Police, 71 F.3d 480, 482 (3d Cir. 1995). “[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 that an offense has been or is being committed by the person to be arrested.” Id. at 483. “False arrest and false imprisonment claims will ‘necessarily fail if probable cause existed for any one of the crimes charged against the arrestee.'” Harvard v. Cesnalis, 973 F.3d 190, 199 (3d Cir. 2020) (quoting Dempsey v. Bucknell Univ., 834 F.3d 457, 477 (3d Cir. 2016)).
In this case, Plaintiff's state court docket reflects that the charges against him for robbery were dismissed during the preliminary hearing. Plaintiff pleaded guilty to the three remaining charges, including a charge for theft for taking Mr. Hooks' cane and a charge for smashing Mr. Hooks' car window. Plaintiff was sentenced to a period of incarceration of 262 days. Under these circumstances, Plaintiff's guilty plea to the related charges confirms the existence of probable cause for his arrest. See Fields v. City of Pittsburgh, 714 Fed.Appx. 137, 140 (3d Cir. 2017) (“Although Fields pleaded to lesser offenses than he was originally charged with, his guilty plea inherently included an acknowledgement that probable cause existed to arrest him for some offense”) (emphasis in original); Rosembert v. Borough of E. Landsdowne, 14 F.Supp.3d 631, 641 (E.D. Pa. 2014) (“Probable cause for a § 1983 unlawful arrest claim is ... established by guilty plea or conviction, although not where the conviction is later overturned.”) (internal quotations and citation omitted); Stief v. Robeson Twp., No. 5:20-cv-06272, 2021 WL 2137588, at *7 (E.D. Pa. May 26, 2021) (“A plaintiff who later pleads guilty cannot argue that the preceding arrest was without probable cause, even if the guilty plea is for a lesser offense.”).
Because Plaintiff fails to state claims for false arrest and imprisonment, the claims should be dismissed without leave to amend.
b. Malicious Prosecution
To establish a § 1983 malicious prosecution claim, a plaintiff must be able to satisfy the common law elements of a malicious prosecution claim. Bracken v. Manor Twp., No. 2:19-CV-185, 2023 WL 2664361, at *21 (W.D. Pa. Mar. 28, 2023) (citing Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 792 (3d Cir. 2000)). The elements are: “(1) the defendants initiated a criminal proceeding; (2) the criminal proceeding ended in the plaintiff's favor; (3) the proceeding was initiated without probable cause; and (4) the defendants acted maliciously or for a purpose other than bringing the plaintiff to justice.” Id.
In Bracken v. Manor Twp., the Court explained, “[t]he constitutional component of the claim also requires a showing of a loss of liberty beyond simply showing an unlawful arrest. 2023 WL 2664361, at *21 (quoting Merkle, 211 F.3d at 792 and citing Gallo v. City of Philadelphia, 161 F.3d 217, 225 (3d Cir. 1998)); accord McKenna v. City of Philadelphia, 582 F.3d 447, 461 (3d Cir. 2009) (malicious prosecution claim premised on a violation of the Fourth Amendment includes as an element a showing that ‘(5) the plaintiff suffered deprivation of liberty consistent with the concept of seizure as a consequence of a legal proceeding.') (citing Estate of Smith v. Marasco, 318 F.3d 497, 521 (3d Cir. 2003)); Johnson v. Knorr, 477 F.3d 75, 82 (3d Cir. 2007)).”
The United States Supreme Court has clarified with respect to the second element that a plaintiff need not “show that the criminal prosecution ended with some affirmative indication of innocence” and “need only show that the criminal prosecution ended without a conviction.” Thompson v. Clark, 142 S.Ct. 1332, 1341 (2022); see also Coello v. DiLeo, 43 F.4th 346, 354-55 (3d Cir. 2022) (“A § 1983 claim sounding in malicious prosecution accrues when ‘the prosecution terminate[s] without a conviction.'”).
Here, despite the dismissal of the robbery charges against him, Plaintiff cannot establish the last element of a claim for malicious prosecution - that he suffered a deprivation of liberty as a result of allegedly fabricated and dismissed robbery charges. The state court docket confirms that Plaintiff was sentenced to a period of confinement of 262 days for the charges supporting his guilty plea and no other time was served related to the robbery charges. Therefore, Plaintiff's Fourth Amendment claim for malicious prosecution against Hobeck should be dismissed with prejudice. See Gray v. Wittman, 839 Fed.Appx. 669, 671 (3d Cir. 2021) (plaintiff's claim for malicious prosecution properly dismissed without leave to amend because he “suffered no deprivation of liberty; he was already incarcerated and would have been detained on the other counts of conviction in any event.”).
c. Fabrication of Evidence
Plaintiff alleges that Hobeck fabricated his confession, Hooks' statement that he was robbed, and the witness statement identifying Plaintiff as Hooks' assailant. ECF No. 4. Because Plaintiff pleaded guilty to the charges for theft, criminal mischief, and tampering with evidence, he cannot sustain a claim for fabrication of evidence related to those charges. Plaintiff's claim is therefore limited to the robbery charges. “To plead a fabrication-of-evidence claim, a plaintiff must allege that ‘there is a reasonable likelihood that, absent that fabricated evidence, the defendant would not have been criminally charged.'” Williams v. Hammer, No. 21-CV-0312, 2022 WL 1238966, at *5 (E.D. Pa. Apr. 26, 2022) (quoting Black v. Montgomery Cnty., 835 F.3d 358, 371 (3d Cir. 2016)).
To meet the “reasonable likelihood” standard, the plaintiff must establish a “meaningful connection” between the due process injury and the use of fabricated evidence. Id. at 372. The plaintiff must also establish “that the fabricated evidence ‘was so significant that it could have affected the outcome of the criminal case.'” Id. (quoting Halsey v. Pfeiffer, 750 F.3d 273, 294 (3d Cir. 2014)). Further, there is a “notable bar” for evidence to be considered “fabricated.” Id. “[T]estimony that is incorrect or simply disputed should not be treated as fabricated merely because it turns out to have been wrong.” Halsey, 750 F.3d at 295. Instead, there must be persuasive evidence that the fabricated evidence's proponents knew the evidence was incorrect or offered it in bad faith. Id. At the motion to dismiss stage, a plaintiff must plead sufficient facts to establish that the defendant officers either knowingly stated deliberate falsehoods or acted with reckless disregard for the truth. Basile v. Twp. of Smith, 752 F.Supp.2d 643, 657-58 (W.D. Pa. 2010).
Id. “In order to state a fabrication-of-evidence claim arising under the procedural component of the Due Process Clause of the Fourteenth Amendment, a plaintiff must allege that he was deprived of life, liberty, or property in some way as a result of the fabricated evidence.” Deforte v. Borough of Worthington, 364 F.Supp.3d 458, 482 (W.D. Pa. 2019), aff'd, 844 Fed.Appx. 511 (3d Cir. 2021).
In his response to the Motion to Dismiss, Plaintiff attaches transcript excerpts from his Preliminary Hearing before Magisterial District Judge Pallone and the narrative prepared by Holbeck in support of the robbery charge. ECF Nos. 26-1, 26-2. The Court may consider the hearing transcript in resolving the pending Motions to Dismiss. See Sands v. McCormick, 502 F.3d 263, 265 (3d Cir. 2007) (“we conclude that portions of a transcript of a preliminary hearing may be considered in connection with the defendants' motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)” as a public document with a bearing on the controversy). Review of the transcript confirms that Hobeck's narrative and Probable Cause Affidavit do not contain false information that could have affected the outcome of the decision to pursue robbery charges.
Hobeck's narrative states that upon arriving at the scene of the incident, Mr. Hooks reported that his assailant “took his wooden cane from the dumpster where he was standing and smashed the back window of his 2021 Chevrolet Malibu and then left with his cane.” ECF No. 261. Hobeck also stated that “one of the tenants asked if I was there because of the incident with the old man. I informed him that I was and I asked where the male suspect may be. He stated ‘check the towers, it was Charlie Jones.'” Id.
The transcript of Mr. Hooks' testimony at the Preliminary Hearing confirms Mr. Hooks' version of events - “a person who I didn't recognize came over, he said leave, and he took my cane.” ECF No. 26-2 at 2. Mr. Hooks later clarified that the cane “was not actually [taken] from my person.” Id. at 3. It was hanging two to three feet away from Mr. Hooks as he leaned into the dumpster to reach for cans. Id. at 4. Mr. Hooks identified the Plaintiff as the individual who took the cane and used it to smash the rear window of his car. Id. at 4, 8, 9. Mr. Hooks also testified that he was “probably not” threatened with bodily harm, but the cane was never returned to him. Id. at 10. Mr. Hooks also testified that Plaintiff “sued the cane to break the window of my car.” Id. at 3.
Under these circumstances, Plaintiff has not alleged facts to establish that Hobeck knowingly stated deliberate falsehoods or acted with reckless disregard for the truth. Further, considering Plaintiff's guilty plea for the concurrently filed criminal charges arising out of the same incident, Plaintiff cannot sustain a claim that the witness identification information or his confession, even if fabricated, impacted the charges or the outcome. Thus, it is recommended that the Court grant the Motion to Dismiss Plaintiff's Fourteenth Amendment fabrication-of-evidence claim.
In light of the recommended disposition, the Court need not reach Hobeck's arguments related to qualified immunity and the bar to Plaintiff's due process claim under Heck v. Humphrey, 512 U.S. 477 (1974).
d. Conspiracy
A claim for civil conspiracy requires a “meeting of the minds” and, to survive a motion to dismiss, a plaintiff must provide some factual basis to support the existence of the elements of a conspiracy - agreement and concerted action. Startzell v. City of Philadelphia, 533 F.3d 183, 205 (3d Cir. 2008). Plaintiff fails to plead any facts related to an agreement between Defendants and thus fails to state a claim upon which relief may be granted. Further, Plaintiff cannot succeed on a claim for conspiracy if the underlying civil rights claims are dismissed. See Ashton v. City of Uniontown, 459 Fed.Appx. 185, 191 (3d Cir. 2012). Because it is recommended that Plaintiff's Section 1983 claims be dismissed with prejudice, no underlying claim remains to support his claim for conspiracy. Therefore, it is recommended that Plaintiff's conspiracy claim be dismissed for failure to state a claim.
D. CONCLUSION
For the foregoing reasons, it is respectfully recommended that the Motions to Dismiss filed on behalf of Defendants Patrolman Jerry Hobeck, Assistant District Attorney Judith Potoka Petrush, and Magisterial District Judge Frank Pallone, Jr., ECF Nos. 13, 17, and 20, be granted and that the claims asserted against each of them be dismissed with prejudice.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties may file written objections within fourteen days, or seventeen days for unregistered ECF Users. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Any party opposing objections may respond to the objections within 14 days in accordance with Local Civil Rule 72.D.2.