Opinion
Plaintiff originally filed this lawsuit under Civil Action Number 01-3796.
March 25, 2004
MEMORANDUM ORDER
Plaintiff Dennis King brought the instant action alleging violations of his constitutional rights and seeking relief under 42 U.S.C. § 1983. Plaintiff named numerous individuals and organizations as Defendants, including former Philadelphia Police Commissioner John Timmoney, unknown Philadelphia police officers, the City of Philadelphia, the Montgomery County Sheriffs Department, the Montgomery County District Attorney's Office ("DA's Office"), unknown individual sheriffs office and prison personnel, the Montgomery County Correctional Facility, the County of Montgomery, and the Commonwealth of Pennsylvania. On March 4, 2003, we ordered the dismissal of all claims against the Commonwealth of Pennsylvania. (Doc. No. 9.) On April 29, 2003, we denied the Motion of Defendant Montgomery County District Attorney's Office to Dismiss Plaintiff's Complaint. (Doc. No. 10.) On October 24, 2003, we denied the Motion of Defendants County of Montgomery, Montgomery County Sheriffs Department, and Montgomery County Correctional Facility ("Montgomery County Defendants") to Dismiss Plaintiff's Complaint. (Doc. No. 21.) On December 17, 2003, we were notified by Plaintiff's counsel that "Plaintiff ha[d] just amicably settled the . . . matter with the City of Philadelphia. . . ." (Letter from Morris to Judge Surrick of 12/17/03.) Presently before the Court are the Motion for Summary Judgment of the Defendant, Montgomery County District Attorney's Office, (Doc. No. 14), and the Motion for Summary Judgment Filed by Defendants, County of Montgomery, Montgomery County Sheriff's Department and Montgomery County Correctional Facility, (Doc. No. 33). For the following reasons, these motions will be granted.
Plaintiff does not include the Montgomery County Correctional Facility in the caption of the Complaint, but refers to this Defendant, (as "Montgomery County Prisons"), in the body of the Complaint. (Compl. at ¶ 9.)
I. FACTS
On January 30, 1991, Plaintiff was found guilty by a jury in the Court of Common Pleas of Montgomery County, the Honorable Anita B. Brody presiding, of the crimes of theft by receiving stolen property, unsworn falsification to authorities, and recklessly endangering another person. Post trial motions were denied. On January 16, 1992, Plaintiff was sentenced to a period of incarceration in the State Correctional Institution of not less than two (2) years not more than five (5) years. Plaintiff was also placed on probation under the supervision of the Pennsylvania Board of Probation and Parol for a period of two years. The probation was designated to run consecutively to the jail sentence. On February 25, 1992, Plaintiff was sentenced by the Honorable Angelo Guarino in the Court of Common Pleas of Philadelphia County to a period of incarceration of not less than three (3) years not more than six (6) years in the State Correctional Institution. This sentence was designated to run concurrently with the Montgomery County sentence. Plaintiff served the full maximum jail sentence in both the Philadelphia and Montgomery County cases. On February 25, 1998, Plaintiff was released from jail to begin serving the consecutive probationary sentence.
Supervision of Plaintiff's probation was accepted by the Pennsylvania Board of Probation and Parole on April 14, 1995.
During his probation Plaintiff was supervised by Parole Agent Reynold D. Macon of the Pennsylvania Board of Probation and Parole. On November 2, 1998, Agent Macon submitted a Special Field Report to Judge Brody advising that Plaintiff had violated the terms and conditions of his probation. Macon requested that probation be revoked and that a bench warrant issue. The Special Field Report stated the following:
I am the Pa. State Parole Agent assigned to supervise one Denis [sic] King (Parole #6796-R). Dennis King is on Probation from Montgomery County with a sentence of two (2) years Special Probation. The effective date of the sentence is 6/22/97 — 6/22/99, for Theft by Receiving Stolen Property. I am requesting your office issue a Warrant for his arrest, upon apprehension, because the client has absconded from Parole Supervision.
The parolee was Declared Delinquent by our office effective 10/7/98, and information was inputted into our state computer system on 10/22/98, for processing. The parolee was last seen by his Agent on 10/5/98 and has not been seen or heard from any time thereafter.
Shortly before it was discovered that the parolee had absconded, it was also noticed that the parolee's conduct, office visits and work habits began to deteriorate for the worse. The parolee began to take time off from work unannounced, which resulted in him being suspended by his employer.
The parolee has never had a stable residence. . . . On 8/5/98, it was discovered that the parolee began to smoke (Marijuana) on a regular basis. . . . Before absconding, the parolee was given written instructions by this Agent to complete out-patient treatment at the Hospitality House . . . which he never completed. . . . It was also discovered that the parolee might have been a key player in the stealing of one of the female staff member's purse while visiting the program unannounced.
The parolee appeared not to have any regard for the importance of Parole Supervision. He would not accept any responsibility for his action, and has denied any drug abuse. Parolee was given various opportunities by this office to help himself . . . It is the opinion of this Agent that the parolee has never been in compliance with his Parole Supervision Plan. . . .
(Special Field Report, Attention: Judge Anita B. Brody, Ex. B to Mot. for Summ. J. Filed by Defs., County of Montgomery, Montgomery County Sheriffs Department and Montgomery County Correctional Facility.) The Bench Warrant was issued on November 20, 1998 by the Honorable Joseph A. Smith of the Montgomery County Court.
In 1998 Judge Brody was on the United States District Court for the Eastern District of Pennsylvania.
On August 10, 2000, Plaintiff was working at Checker's Restaurant located at Knights Road and Woodhaven Road in Philadelphia. After finishing his shift Plaintiff started to walk to the bus stop. At approximately 10:45 p.m., a Philadelphia police officer stopped Plaintiff and inquired where he was going. Plaintiff was detained at the scene while the officer checked to see if there were any outstanding warrants for Plaintiff. The Philadelphia officer determined that there was an outstanding bench warrant for Plaintiff from Montgomery County and he took Plaintiff into custody. (Compl. at ¶¶ 24-26.) Plaintiff does not dispute that this bench warrant was still outstanding at the time of his arrest. See Mem. of Law in Support of Pl's Answers to Mot. for Summ. J. Filed by Defs., County of Montgomery, Montgomery County Sheriff's Department and Montgomery County Correctional Facility at unnumbered 2 (admitting that the bench warrant that led to Plaintiffs arrest was still outstanding but contending that there was no longer anyone interested in pursuing it). After being taken into custody by the Philadelphia police, Montgomery County Sheriff Deputies transported Plaintiff to the Montgomery County Courthouse and then to the Montgomery County Correctional Facility. (King Dep. at 94-95.) Almost immediately after arriving at the Correctional Facility, Plaintiff called his sister and a friend from his church. The friend knew an attorney, Ronald Kaplan, Esquire, and Plaintiff agreed that the friend should call Kaplan and arrange legal representation for Plaintiff. Kaplan agreed to represent Plaintiff within two or three days of Plaintiff's incarceration in Montgomery County. Immediately after taking Plaintiff's case, Kaplan began making phone calls to determine why Plaintiff had been incarcerated. Kaplan contacted the Clerk of the Court, the Montgomery County DA's Office, and the Montgomery County Probation Office. These offices could not give Kaplan very much insight into why Plaintiff was incarcerated. Finally Kaplan called the Pennsylvania Board of Probation and Parole, where he was told that Plaintiff's file was no longer active. (Kaplan Dep. at 11.) Kaplan then placed another call to the Montgomery County Probation Department. (Id. at 13.) According to Kaplan, none of these parties could locate an open file for Plaintiff. "A few days before Labor Day" (id. at 12), almost three weeks after agreeing to represent Plaintiff, Kaplan went to the prison to speak with Plaintiff. He was unable to meet with him because the prison was conducting a count of the inmates. Kaplan left Plaintiff a note stating: "My name is Ron Kaplan. I was here to see you, but I had to leave. There was a head count." (King Dep. at 63.)
We note that Labor Day fell on September 4, 2000.
On September 13, 2000, a coworker/counselor at the Prison, Sheila Ray contacted Michael Gordon, Director of Social Service at the prison, concerning Plaintiff. Gordon's investigation revealed that supervision of Plaintiffs case was in the hands of the Pennsylvania Board of Probation and Parole, but that their files indicated that the case was closed. (Gordon Dep. at 10.) Gordon immediately called the Montgomery County Court and was advised by Judge Smyth that he should notify the Office of the Public Defender of Montgomery County to file a petition for writ of habeas corpus so that the matter could be brought before the court. (Id. at 14.) Gordon spoke with the First Assistant of the Public Defenders and advised her of the court's instructions. When the Office of the Public Defender pursued the matter it was advised that Plaintiff was represented by private counsel. (Id. at 15.) Gordon also spoke to Plaintiff at the prison who advised that he had a private attorney looking into the matter. On September 29, 2000, approximately fifty days after agreeing to represent Plaintiff, Kaplan finally filed a petition for writ of habeas corpus. On that same day, the Court of Common Pleas of Montgomery County issued an order directing that a hearing be held on October 25, 2000. (Court of Common Pleas of Montgomery County, Order of Sept. 29, 2000.) In the nearly one month period between filing the habeas petition and the date of the hearing, Kaplan did not contact anyone else on Plaintiff's behalf. Moreover, he did not request that the Court schedule an expedited hearing. (Kaplan Dep. at 16.) Plaintiff saw Kaplan for the first time on the day of the hearing. (King Dep. at 71.) On October 25th, Judge DelRicci of the Montgomery County Court presided at the hearing. After meeting with Kaplan and Assistant District Attorney Thomas McBride, Judge Delricci ordered that Plaintiff be released from custody. Plaintiff was released the following day from the prison. Plaintiff was incarcerated for a total of seventy-five (75) days. Plaintiff seeks compensatory and punitive damages contending "that there was nothing which should have required his arrest and detention." (Compl. at ¶ 38.) Plaintiff also alleges that:
[A]s a result of their concerted, unlawful, malicious and grossly reckless detention without due process of law, Defendants deprived [Plaintiff] of his right to counsel, deprived him of equal protection of the law, subjected him to an unlawful seizure of his person and cruelty in violation of the 4th, 5th, 8th and 14th Amendments of the Constitution of the United States and 42 U.S.C. § 1983.
(Compl. at ¶ 39.)
II. LEGAL STANDARD
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. Civ. P. 56(c). An issue is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986). A factual dispute is "material" if it might affect the outcome of the case under governing law. Id.
III. DISCUSSION
A. District Attorney's Office
In our Memorandum and Order dated April 29, 2003, denying the DA's Office's Motion to dismiss, we stated: "Discovery may ultimately disclose that the Montgomery County District Attorney's Office is not liable in the instant suit. However, Defendant has made no argument at this juncture that allegations that the District Attorney's Office failed to take the necessary action in securing a hearing fall outside the scope of its responsibility." (Mem. and Order of 4/29/03; Doc. No. 10.) After having the benefit of the discovery process, we are compelled to conclude that the DA's Office cannot, as a matter of law, be held liable in this lawsuit.
On September 25, 2003, the DA's Office filed its original motion for summary judgment claiming that it "does not monitor the prison population at the Montgomery County Correctional Facility, is unaware of Bench Warrants issued by Montgomery County Judges, and is not responsible for the scheduling of any parole violation or probation violation hearing." (Mot. for Summ. J. of Def, Montgomery County District Attorney's Office at unnumbered 6.) It also claimed that it was not aware that a bench warrant had been issued for Plaintiff, or that Plaintiff was being held at the Montgomery County Correctional Facility until it received notice that a hearing had been scheduled for Plaintiff's habeas petition. Attached to that motion was the affidavit of Thomas McBride, the Assistant District Attorney assigned to Plaintiff's case when the hearing was scheduled. The affidavit states, inter alia, that:
[T]here are no records of telephone calls, letters, or other documents from or presented on behalf of Dennis King addressed to or in the possession of the Montgomery County District Attorney's Office regarding Mr. King's incarceration at the Montgomery County correctional facility other than the Petition for Writ of Habeas Corpus, Notice of Hearing regarding the same, and the Court Order of October 25, 2000, granting the Petition for the Writ of Habeas Corpus.
(McBride Aff. at ¶ 3.) In addition, the affidavit of Mary Ann Killinger, Executive Assistant and Chief of Appeals of the Montgomery County District Attorney's Office, is attached to the motion. Killinger states that she "diligently searched all records regarding Dennis King maintained by the Montgomery County District Attorney's Office" and found "no records of telephone calls, letters or other documents" other than those associated with the habeas petition and hearing. (Killinger Aff. at ¶¶ 2-3.)
Plaintiff responded to the DA's Office's original motion for summary judgment by stating that the motion was "ludicrously premature" because the discovery process was not yet complete. (Mem. of Law in Supp. of Pl's Answer to Summ. J. Mot. of Def Montgomery County District Attorney's Office at unnumbered 2.) Plaintiff also claimed that even if discovery were closed, the DA's Office's motion should still be denied because the DA's Office has admitted to having knowledge of Plaintiffs incarceration, as evidenced by the notice of the habeas hearing, approximately one month prior to Plaintiff's being released. Plaintiff has now had the benefit of the discovery process, but has provided the Court with no additional submissions and no additional evidence to indicate that the DA's Office believed that Plaintiff had been wrongly incarcerated prior to the filing of the habeas, or that the DA's Office had an affirmative duty to act upon any knowledge it might have had. In fact, it appears that Plaintiff may have decided not to pursue his case against the DA's Office because Plaintiff has not filed any supplemental briefings since the close of discovery, and has failed to respond to the DA's Office's Reply Memorandum or Supplemental Memorandum.
We note that Attorney Kaplan claims that he placed calls to the DA's Office shortly after commencing his representation of Plaintiff. Kaplan states that he spoke with "a secretary or paralegal" (Kaplan Dep. at 7), but not an assistant district attorney or supervisor, (id. at 9). Kaplan further states that the individual instructed him that Plaintiff was being held on "some kind of cost and fines" and instructed Kaplan to contact the probation department. (Id. at 8.) Even accepting these facts as true, we cannot conclude that Kaplan's inquiry to a secretary or paralegal in the DA's Officer creates an affirmative duty on the part of the DA's Office to schedule a hearing for Plaintiff. In fact, Kaplan himself does not suggest that the DA's Office was responsible for scheduling such a hearing.
Q: [L]et's assume, for the sake of argument, that Mr. King had been placed in custody and taken to Montgomery County Prison for a parole violation, what's your understanding as to the process that takes place after that as far as a hearing for that violation?
A: It's usually a [G]agnon hearing supposed to be scheduled either, you know, pretty much automatically.
Q: Do you know who scheduled that?
A: Either probation or the judge, it could happen either way.
(Kaplan Dep. at 19.)
Plaintiff has cited no authority, and we are aware of none, for the proposition that the DA's Office is responsible for scheduling Gagnon hearings or habeas hearings. Plaintiffs only argument appears to be that the DA's Office's is responsible for Plaintiff's incarceration because the DA's Office admits to having received Plaintiff's petition for writ of habeas corpus relief, and because "there was concrete indisputable evidence that there was at least some truth to Plaintiff's allegations that the District Attorney's Office knew of Plaintiff's illegal incarceration yet failed to prudently act on this knowledge." (Mem. of Law in Support of Pl's Answer to Summ. J. Mot. of Def. Montgomery County District Attorney's Office at unnumbered 2.) Plaintiff has failed to show that his arrest and incarceration were illegal, and he does not explain why the DA's Office had a duty to "prudently act on this knowledge." In fact, as mentioned above, Plaintiff admits that his incarceration occurred because of an outstanding bench warrant. As to any duty that the DA's Office may have owed Plaintiff after the filing of a habeas petition, there was none. In this area, the duty of the DA's Office's is well-established. It must represent the Commonwealth's interests at the habeas hearing. The DA's Office's involvement with Plaintiff's petition for habeas corpus relief is prosecutorial in nature and entitled to absolute immunity. In Buckley v. Fitzsimmons, the Supreme Court held that "`the duties of the prosecutor in his role as advocate for the State involve actions preliminary to the initiation of a prosecution and actions apart from the courtroom,' and are nonetheless entitled to absolute immunity." 509 U.S. 259, 272 (1993) (quoting Imbler v. Pachtman, 424 U.S. 409, 431 n. 33 (1976)). Upon receiving notice of the hearing on the petition, the DA's Office began the process of preparing to represent the Commonwealth at the hearing. This preparation and the representation at the habeas hearing are protected by absolute immunity. Under all of the circumstances the motion for summary judgement filed by the DA's Office will be granted.
In Gagnon v. Scarpelli, the Supreme Court held that the Due Process Clause requires that probationers who are arrested for probation violations receive a preliminary hearing shortly after the time of arrest, and a second hearing prior to revocation of probation. 411 U.S. 778, 781-82(1973).
B. The Montgomery County Defendants
We note that it appears that Plaintiff has decided not to pursue his claim against the Montgomery County Sheriff's Department. Nowhere in his response to the Motion for Summary Judgment does Plaintiff mention the role of the Sheriff's Department. Moreover, it appears that the Sheriff's Department's only involvement in this case was to provide transportation from one facility to another. Accordingly, we are compelled to conclude that the Sheriff's Department is not liable to Plaintiff for the alleged constitutional violations.
The Montgomery County Defendants argue that "Plaintiff's burden on summary judgment is to present some evidence from which a fact finder can reasonably find that a Montgomery Defendant municipal officer with requisite policymaking authority intentionally or with deliberate indifference established or acquiesced in a practice, policy or custom which violated his federal rights." We agree. In Monell v. New York City Dept. of Soc. Servs., the Supreme Court held that in order to hold a municipality liable under § 1983, a plaintiff must demonstrate the municipality's affirmative policy or custom caused the violation of a constitutionally or federally secured right. 436 U.S. 658, 694 (1978). The Court in Monell stated:
[A] local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.Id. In his Response to the Motion for Summary Judgment, Plaintiff alleges that the Montgomery County Defendants violated his constitutional rights by failing to provide a system that would verify that prisoners were being held for legitimate reasons. Plaintiff states:
The real problem which caused this entire unnecessary tortuous incarceration for Plaintiff was that there was absolutely no procedure in place by anyone, including the Montgomery Defendants, to reasonably ensure that the Plaintiff, or anyone else similarly situated, was being held for anything that approached a legitimate purpose. This lack of safeguards or procedures . . . is an institutionalized inadequacy in the Montgomery Prison system and inherently violates the rights of inmates, including the Plaintiff.
(Mem. of Law in Support of Pl's Answers to Mot. for Summ. J. Filed by Defs., County of Montgomery, Montgomery County Sheriff's Department and Montgomery County Correctional Facility at unnumbered 4-5.) As we stated in our Memorandum and Order of October 24, 2003, in order to hold a municipal defendant liable for failing to act, Plaintiff must prove that "the need to take some action to control the agents of the government is `so obvious, and the inadequacy [of existing practice] so likely to result in the violation of constitutional rights, that the policymake[r] . . . can reasonably be said to have been deliberately indifferent to the need." (Mem. and Order of 10/24/03 at 9 (quoting Board of Comm'rs of Bryan County v. Brown, 520 U.S. 397, 418 (1997)).) After the benefit of the discovery process, it is clear that Plaintiff cannot establish that the Montgomery County Defendants were deliberately indifferent to his constitutional rights.
Plaintiff is correct in asserting that he was entitled to a Gagnon hearing after being arrested for probation violations. Gagnon, 411 U.S. at 781-82 (holding that a probationer is entitled to a preliminary hearing, at the time of arrest and detention, and a final revocation hearing, prior to the final revocation decision). However, it is undisputed that Plaintiffs probation was supervised by the Pennsylvania State Board of Probation and Parole, not the Montgomery County Board of Probation and Parole Board. Plaintiff has done nothing to establish that the Montgomery County Board of Probation and Parole was the party responsible for scheduling a Gagnon hearing. In fact, Plaintiff acknowledges that "[o]n or about November 20, 1998, based upon a State parole application, a Montgomery County judge issued a Bench Warrant for Plaintiff's arrest based upon an alleged technical violation of probation." (Mem. of Law in Support of Pl's Answers to Mot. for Summ. J. Filed by Defs., County of Montgomery, Montgomery County Sheriff's Department and Montgomery County Correctional Facility at unnumbered 2 (emphasis added).) In addition, Plaintiff correctly states that Plaintiff's "file had been closed by the State parole authorities." (Id. at 4 (emphasis added).) Moreover, as discussed above, Plaintiff's attorney at the time of his incarceration, knew that "either probation or the judge" would be responsible for scheduling such a hearing. (Kaplan Dep. at 19.) Since the only probation authority involved in Plaintiff's case was the Pennsylvania Board of Probation and Parole, we cannot reasonably conclude that the Montgomery County Board of Probation and Parole is responsible. Plaintiff states that "which authority may have been responsible for so notifying the court system in which the Bench Warrant had been issued that the warrant should be withdrawn is only, at best, marginally relevant to any of the Defendant' culpability in this matter." (Mem. of Law in Support of Pl's Answers to Mot. for Summ. J. Filed by Defs., County of Montgomery, Montgomery County Sheriff's Department and Montgomery County Correctional Facility at unnumbered 4 (emphasis in original).) We disagree. The authority that requested issuance of the bench warrant, the Pennsylvania Board of Probation and Parole, was the authority responsible for requesting revocation of the bench warrant. The Pennsylvania Board of Parole and Probation is not a named defendant in this lawsuit.
In addition, it is clear that the Montgomery County Defendants were simply detaining Plaintiff based upon what was still a valid bench warrant. In any event, in Baker v. McCollan, the Supreme Court held that "[g]iven the requirements that arrest be made only on probable cause and that one detained be accorded a speedy trial, we do not think a sheriff executing an arrest warrant is required by the Constitution to investigate independently every claim of innocence. . . . Nor is the official charged with maintaining custody of the accused named in the warrant required by the Constitution to perform an error-free investigation of such a claim." 443 U.S. 137, 145-46(1979).
In the instant case, Plaintiff cannot reasonably claim that the Correctional Facility acted improperly with regard to his incarceration. The Correctional Facility was holding Plaintiff on what was unquestionably a valid warrant. It is clear that employees at the Correctional Facility followed a proper procedure and made considerable effort to assist Plaintiff during his incarceration. As part of the intake process, case workers made inquiries concerning Plaintiff's status (King Dep. at 51-52, 55-56), and contacted Plaintiff's sister, who worked with friends to hire Kaplan. (Id. at 56.) The Director of Social Services at the Montgomery County Correctional Facility was notified. He called Judge Smyth, the judge who issued the warrant, and was instructed to call the public defender about the filing of a habeas petition. (Gordon Dep. at 14.) He then called the Public Defender's Office. He ultimately learned that Plaintiff had hired private counsel to represent him. (Id. at 15.) In addition, the Director advised private counsel to file a petition for writ of habeas corpus. Under the circumstances, we cannot reasonably conclude that the personnel at Montgomery County Correctional Facility were deliberately indifferent to Plaintiff's rights. Moreover, there is nothing in this record to suggest that the named Montgomery County Defendants had an affirmative duty with regard to the scheduling of hearings.
Plaintiff's final claim is that the Montgomery County Defendants violated his constitutional rights by holding him overnight after the court had ordered his immediate release. "Despite the judge's demand that Plaintiff be expeditiously released, the Plaintiff was not released until the following day." (Compl. at ¶ 34.) As previously discussed, in order to establish a claim under § 1983, Plaintiff must show that the Montgomery County Defendants' policy or custom led to the violation of Plaintiff's constitutional rights. Monell, 436 U.S. at 694. However, aside from this one reference in the Complaint, Plaintiff makes no argument with regard to this allegation, and makes not attempt to establish that there was a policy or custom that led to this delay. Because Plaintiff has failed to develop this allegation, we cannot conclude that Plaintiff has satisfied the requirements established inMonell. Accordingly, we will grant the Montgomery County Defendants' Motion for Summary Judgment.
IV. CONCLUSION
It is apparent that there was some administrative confusion related to Plaintiff's incarceration. However, that confusion was caused by the Pennsylvania Board of Probation and Parole closing Plaintiffs file. That agency is not a defendant in this lawsuit. Moreover, the fact remains that Plaintiff was being held on a bench warrant which was issued by the court upon the request of Plaintiffs probation officer. The warrant was properly issued while Plaintiff was still on probation for violations of that probation. The fact that Plaintiff's probation officer decided he was no longer interested in Plaintiff's supervision did not act as a revocation of the validly issued warrant. The bench warrant could only be revoked by the Court. This occurred at the hearing before Judge DelRicci.
If we must assign blame for Plaintiff's seventy-five day incarceration we must first look to Plaintiff himself. He caused the bench warrant to be issued by violating the terms and conditions of his probation and by absconding from supervision. Next we must look to Attorney Kaplan who did not file a petition for writ of habeas corpus for almost fifty days after undertaking representation of Plaintiff, and who did not request an expedited hearing when he finally got around to filing the petition. It seems clear that if Kaplan had not undertaken representation of Plaintiff, the Public Defenders Office would have become involved as Judge Smyth suggested. Certainly, if the public defender were involved Plaintiff would not have languished in jail for seventy-five days. Finally, we must look to the Pennsylvania Board of Probation and Parole. It was their agent who simply closed the file, leaving the bench warrant outstanding.
After a thorough review of the record we are satisfied that the suggestion that the DA's Office and/or the Montgomery County Defendants are to blame for the Plaintiff's seventy-five day incarceration has no basis in law or in fact. Accordingly, we will grant Defendants' motions.
An appropriate Order follows.
AND NOW, this ___ day of March, 2004, upon consideration of the Motion for Summary Judgment of Defendant, Montgomery County District Attorney's Office, (Doc. No. 14), and the Motion for Summary Judgment Filed by Defendants, County of Montgomery, Montgomery County Sheriffs Department and Montgomery County Correctional Facility, (Doc. No. 33), and all papers filed in support thereof and opposition thereto, it is hereby ORDERED that:
1. The Motion for Summary Judgment of Defendant, Montgomery County District Attorney's Office, (Doc. No. 14), is GRANTED; and
2. The Motion for Summary Judgment Filed by Defendants, County of Montgomery, Montgomery County Sheriff's Department and Montgomery County Correctional Facility, (Doc. No. 33), is GRANTED.
IT IS SO ORDERED.