Opinion
CIVIL 3:21-CV-00052
03-26-2021
RICHARD M. KEARNEY, Plaintiff, v. PATTY SUDERS FIX, Defendant.
REPORT AND RECOMMENDATION
Susan E. Schwab United States Magistrate Judge
I. Introduction.
The plaintiff Richard M. Kearney claims that the Prothonotary and Clerk of the Court of Common Pleas of Fulton County, Pennsylvania violated his right to due process by noting an incorrect docket number on an order of the court appointing Kearney counsel in connection with several criminal cases. Because Kearney's amended complaint fails to state a claim upon which relief can be granted and leave to amend would be futile, we recommend that the court dismiss the amended complaint without leave to amend.
II. Background.
Kearney, who is representing himself in this action and who is a prisoner at the State Correctional Institution Houtzdale, began this action by filing a complaint. He also filed an application to proceed in forma pauperis, which we granted. On February 22, 2021, he filed an amended complaint that names as the defendant Patty Suders Fix, who is the Prothonotary and Clerk of the Court of Common Pleas of Fulton County, Pennsylvania. See doc. 8.
Kearney alleges that he was arrested on July 3, 2011, based on fugitive warrants from the state of Maryland, and he was committed to the Franklin County Jail awaiting extradition to Maryland. The next day, the state police executed an arrest warrant for Kearney concerning a burglary in Fulton County, and according to Kearney, he was committed to the Franklin County Jail for this burglary incident as well.
On July 11, 2011, two more arrests warrants-one concerning another burglary and the other a robbery of a motor vehicle-were executed on Kearney while he was at the Fulton County Courthouse. Kearney was sent back to the county jail and committed regarding the additional burglary and robbery of the motor vehicle. Also, according to Kearney, the fugitive-from-justice proceedings were concluded on July 11, 2011.
Attorney Dwight Harvey was assigned to represent Kearney on July 11, 2011. But because of a conflict of interest, Harvey could not represent Kearny in the three Fulton County cases (the two burglary cases and the one motor-vehicle-robbery case), and he filed a motion for the appointment of substitute counsel. On July 19, 2011, Judge Meyers of the Court of Common Pleas of Fulton County granted the motion for substitute counsel and appointed the law firm of Breschi & Associates to represent Kearney in the three cases.
The July 19, 2011 Order (“the Order”) was forwarded to the Prothonotary's office, where it was time-stamped as received on July 25, 2011. Defendant Fix then handwrote four docket numbers on the Order. Three were the docket numbers for the two burglary cases and the one motor-vehicle-robbery case. Those three cases were relevant to Attorney Harvey's motion. But it is the fourth docket number-CR-227-2011-that defendant Fix wrote on the Order that is the basis for Kearney's complaint in this case. Kearney alleges that CR-227-2011 was not relevant to the Order appointing counsel, Fix's addition of CR-227-2011 to the Order made it appear that the court acknowledged the inclusion of CR-227-2011 on the Order, but, in fact, Judge Meyers was unaware of the inclusion as was Attorney Harvey.
Fix allegedly wrote “227/2011” on the Order. See doc. 8 at 20. The case that that docket number represents is Commonwealth v. Kearney, CP-29-CR-0000227-2011 (Fulton Cnty.). Because Kearney refers to the case as CR-227-2011, see doc. 8 ¶¶18-28, so will we.
The Order (with the four docket numbers added) was then forwarded to Breschi & Associates, and Breschi and Associates represented Kearney as to all four docket numbers. A preliminary hearing in CR-227-2011 was rescheduled to October 17, 2011, and the case thereafter advanced to pretrial proceedings. Kearney was tried and convicted of the charges in connection CR-227-2011, and on May 29, 2012, he was sentenced to a term of imprisonment of 12 to 24 years.
“We may take judicial notice of the contents of another Court's docket.” Orabi v. Attorney Gen. of the U.S., 738 F.3d 535, 537 (3d Cir. 2014); see also Wilson v. McVey, 579 F.Supp.2d 685, 688 (M.D. Pa. 2008) (taking judicial notice of the state court docket). Here, in connection with CR-227-2011, Kearney was charged with firearms violations as well as several charges of criminal coercion, terroristic threats, unlawful restraint, simple assault, harassment, false imprisonment, and recklessly endangering another person. The docket sheet for that case is available on the Unified Judicial System of Pennsylvania Web Portal, https://ujsportal.pacourts.us/CaseSearch (last visited March 24, 2021).
In connection with Kearney's Post Conviction Relief Act proceedings, defendant Fix admitted that she included CR-227-2011 on the Order, but she asserted that it was a clerical error. Kearney asserts, however, that Fix told no one of the clerical error at the time the error was made. And characterizing Fix's addition of CR-227-2011 to the Order as a forgery and as fraud, Kearney alleges that he was prejudiced by such. More specifically, he suggests that he had not been formally charged in CR-227-2011 at the time of Fix's addition of that case to the Order, and that Fix's addition of that case to the Order misled Breschi and Associates to act on the belief that it had an obligation to defend Kearney in CR-227-2011 even though there “was not a pre-existing matter before the court” in CR-227-2011. Kearney alleges that Fix's “concealment of her alterations to the July 19, 2011 Court Order, had tricked [him] into parting with, and surrendering his rights to due process of law, by the illusionary appearance of counsel which created a snow-ball-effect, as criminal proceedings were thereafter carried on by Breschi & Associates by the belief, that their appointment was Court ordered in Case Docket CR-227-2011, and also that a preliminary [hearing] was scheduled initially prior to their appointment, which created an appearance of a willingness by [Kearney] to have counsel appointed to defend case Docket CR-227-2011.” Doc. 8 ¶ 28.
The docket sheet from the magisterial district judge shows that a criminal complaint was filed on July 13, 2011. See Commonwealth v. Kearney, MJ-39401-CR-0000034-2011 (Fulton Cnty.). That magisterial district judge case-MJ-39401-CR-0000034-2011-was later transferred to the Court of Common Pleas and was docketed as Commonwealth v. Kearney, CP-29-CR-0000227-2011 (Fulton Cnty.). See doc. 8 ¶21 n.8 (“Court of Common Pleas Docket CR-227-2011, was initially Magistrate District Court Docket CR-34-2011, and are one and the same.”). Kearney alleges that the criminal complaint was not sworn before the issuing authority as, according to Kearney, was required by the Fourth Amendment even though it appeared as if it had been. Kearney also asserts that prior to defendant Fix adding CR-227-2011 to the Order, there was no warrant issued for his arrest in that case, he was not arrested in connection with that case, he was not confronted with CR-227-20011, and he was not being held concerning that case.
Kearney claims that defendant Fix's failure to disclose the she had added CR-227-2011 to the Order appointing counsel violated his right to due process under the Fifth and Fourteenth Amendments. He seeks compensatory and punitive damages.
III. Screening of In Forma Pauperis Complaints-Standard of Review.
This court has a statutory obligation to conduct a preliminary review of complaints brought by prisoners given leave to proceed in forma pauperis in cases that seek redress against government officials. Specifically, the court must review the complaint in accordance with 28 U.S.C. § 1915A, which provides, in pertinent part:
(a) Screening. The court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.
(b) Grounds for dismissal. On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint
(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from such relief.
Under Section 1915A(b)(1), the court must assess whether a complaint “fails to state a claim upon which relief may be granted.” This statutory text mirrors the language of Rule 12(b)(6) of the Federal Rules of Civil Procedure, which provides that a complaint should be dismissed for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6).
When determining whether a complaint states a claim upon which relief can be granted, “[w]e must accept all factual allegations in the complaint as true, construe the complaint in the light favorable to the plaintiff, and ultimately determine whether plaintiff may be entitled to relief under any reasonable reading of the complaint.” Mayer v. Belichick, 605 F.3d 223, 229 (3d Cir. 2010). In making that determination, we “consider only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the [plaintiff's] claims are based upon these documents.” Id. at 230.
“Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a ‘short and plain statement of the claim showing that the pleader is entitled to relief.'” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (quoting Fed.R.Civ.P. 8(a)(2)). The statement required by Rule 8(a)(2) must give the defendant fair notice of the nature of the plaintiff's claim and of the grounds upon which the claim rests. Erickson v. Pardus, 551 U.S. 89, 93 (2007). Detailed factual allegations are not required, but more is required than “labels, ” “conclusions, ” or “a formulaic recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “In other words, a complaint must do more than allege the plaintiff's entitlement to relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009). “A complaint has to ‘show' such an entitlement with its facts.” Id.
In considering whether a complaint states a claim upon which relief can be granted, the court “‘must accept all facts alleged in the complaint as true and construe the complaint in the light most favorable to the nonmoving party.'” Krieger v. Bank of Am., N.A., 890 F.3d 429, 437 (3d Cir. 2018) (quoting Flora v. Cty. of Luzerne, 776 F.3d 169, 175 (3d Cir. 2015)). But a court “need not credit a complaint's bald assertions or legal conclusions.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). A court also need not “assume that a . . . plaintiff can prove facts that the . . . plaintiff has not alleged.” Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983).
Following Twombly and Iqbal, a well-pleaded complaint must contain more than mere legal labels and conclusions. Rather, it must recite factual allegations sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation. In practice, consideration of the legal sufficiency of a complaint entails a three-step analysis:
First, the court must “tak[e] note of the elements a plaintiff must plead to state a claim.” Second, the court should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Finally, “where 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.”Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (footnote and citations omitted) (quoting Iqbal, 556 U.S. at 675, 679).
A complaint filed by a pro se litigant is to be liberally construed and “‘however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'” Erickson, 551 U.S. at 94 (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Nevertheless, “pro se litigants still must allege sufficient facts in their complaints to support a claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013).
IV. The amended complaint fails to state a claim upon which relief can be granted.
Kearney claims that Fix violated his constitutional right to due process. Such a claim is brought under 42 U.S.C. § 1983. “Section 1983 imposes civil liability upon any person who, acting under the color of state law, deprives another individual of any rights, privileges, or immunities secured by the Constitution or laws of the United States.” Shuman v. Penn Manor School Dist., 422 F.3d 141, 146 (3d Cir. 2005). Section 1983 “does not create any new substantive rights but instead provides a remedy for the violation of a federal constitutional or statutory right.” Id. To establish a claim under § 1983, the plaintiff must establish a deprivation of a federally protected right and that this deprivation was committed by a person acting under color of state law. Woloszyn v. County of Lawrence, 396 F.3d 314, 319 (3d Cir. 2005).
Kearney claims that Fix violated his right to due process under both the Fifth Amendment and the Fourteenth Amendment.
The Fifth Amendment provides, in part, that “[n]o person shall . . . be deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V. The Due Process Clause of the Fifth Amendment, however, applies only to the federal government and federal officials. Shoemaker v. City of Lock Haven, 906 F.Supp. 230, 237 (M.D. Pa. 1995). “It does not apply to the acts or conduct of the states, their agencies, subdivisions, or employees.” Id.
The Fifth Amendment is not applicable in this case because defendant Fix is at state, not a federal, actor. Thus, we address Kearney's due process claim under the Fourteenth Amendment.
The Fourteenth Amendment provides that a state shall not “deprive any person of life, liberty, or property, without due process of law.” U.S. CONST. amend XIV, §1. “The core concept of due process is protection against arbitrary government action, ” and due process has “both substantive and procedural components.” Evans v. Sec'y Pa. Dep't of Corr., 645 F.3d 650, 658 (3d Cir. 2011).
Here, Kearney suggests that defendant Fix's addition of CR-227-2011 to the Order appointing him counsel resulted in him having to defend that case and him ultimately being convicted. But the only result of Fix's addition is that Kearney was given counsel earlier than he may have been entitled to counsel. It is not plausible that this harmed Kearney. In any event, although Kearney claims that Fix denied him due process, he does not allege that she intentionally put an incorrect docket number on the Order or that she did so for any improper purpose. Rather, if Fix erred in attaching CR-227-2011 to the Order, that error was a clerical error resulting from at most negligence. But “the protections of the Due Process Clause, whether procedural or substantive, are just not triggered by lack of due care by . . . [state] officials.” Davidson v. Cannon, 474 U.S. 344, 348 (1986); see also Cty. of Sacramento v. Lewis, 523 U.S. 833, 849 (1998) (explaining that “liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process”); Daniels v. Williams, 474 U.S. 327, 328 (1986) (holding a state official's negligent act “causing unintended loss of or injury to life, liberty, or property” does not implicate the Due Process Clause).
Because defendant Fix's adding CR-227-2011 to the Order appointing Kearney substitute counsel was at most negligence, the amended complaint fails to state a due process claim upon which relief can be granted.
Before dismissing a complaint under the screening provision of 28 U.S.C.§ 1915, the court must grant the plaintiff leave to amend his complaint unless amendment would be inequitable or futile. See Grayson v. Mayview State Hospital, 293 F.3d 103, 114 (3d Cir. 2002). Here, because negligence does not arise to the level of a constitutional violation, granting Kearney leave to amend would be futile.
V. Recommendation.
For the foregoing reasons, we recommend that the court dismiss the amended complaint without leave to amend.
The Parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.