Opinion
Civil Action 21-556
05-17-2022
DEANTHONY KIRK Plaintiff, v. LISA V. CAULFIELD, ELLIOTT C. HOWSIE, THE PUBLIC DEFENDERS' OFFICE, RICH FITZGERALD and THE ALLEGHENY COUNTY Defendants.
HORNAK CHIEF DISTRICT JUDGE
ECF NO. 26
REPORT AND RECOMMENDATION
LISA PUPO LENIHAN UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
It is respectfully recommended that the Motion to Dismiss for Failure to State a Claim filed by Defendants Lisa V. Caulfield, Rich Fitzgerald, Elliott C. Howsie, the Allegheny County, and the Public Defender's Office (ECF No. 26) be granted.
II. REPORT
A. Relevant Factual Allegations
Deanthony Kirk (“Plaintiff”), a defendant in a state court criminal action, filed this civil rights action against public defender Lisa V. Caulfield (“Caulfield”), her supervisor Elliott C. Howsie (“Howsie”), the Allegheny County Public Defender's Office (“Public Defender's Office”), Allegheny County Executive Rich Fitzgerald (“Fitzgerald”) and Allegheny County (“County”). Plaintiff's claims include a First Amendment claim for denial of access to the courts, supervisory liability, and a “class of one” equal protection claim pursuant to the Fourteenth Amendment. Plaintiff also alleges the supplemental state law claims of legal malpractice and negligence. The individual Defendants are sued in their personal and official capacities. Complaint, ECF No. 8 ¶ 10.
On September 22, 2011, Public Defender Caulfield entered her appearance as Plaintiff's criminal defense attorney at criminal docket No. CP-02-CR-8878-2011. Id. ¶ 18. On May 9, 2012, the court in that case granted Caulfield's motion to obtain discovery from the District Attorney's Office. Plaintiff alleges that he did not receive a copy of these discovery documents “throughout the pretrial process of the criminal proceedings of his case.” Id. ¶ 20.
On April 8, 2013, after all criminal charges were held over for trial, the District Attorney's Office filed a motion indicating that its “star witness” was “unavailable” due to the witness' failure to appear for trial. Id. ¶ 21. On April 15, 2013, the trial court deemed all criminal charges and attendant penalties that arose at criminal docket No. CP-02-CR-8878-2011 nolle prossed. Id. ¶¶ 22-23.
Five years later, on May 21, 2018, Plaintiff wrote to the chief of the appellate division of the Public Defender's Office requesting discovery from another of his criminal cases where he was convicted at criminal docket No. CP-02-CR-10539-2010. The Public Defender's Office sent a release form to Plaintiff, which he executed and returned to the Public Defender's Office. Plaintiff alleges he was proceeding pro se in that case, even though he also avers that he sought documents from the Public Defender in that case. Id. ¶ 24. On June 14, 2018, Plaintiff received two (2) boxes of documents from the Public Defender's Office containing the case files from the criminal case at docket No. CP-02-CR-10539-2010. Plaintiff alleges that, included in these boxes of documents was the preliminary hearing transcript for the case at docket No. CP-02-CR-8878-2011 that was nolle prossed in 2013. Id. ¶ 25. He appears to allege that the eyewitness testimony in the nolle prossed case was used as “other crimes, wrongs, or acts evidence” pursuant to Pennsylvania Rules of Evidence 404(B)(2) and Rule 404(B)(4) and was used to convict him at docket No. CP-02-CR-10539-2010. Id.
On April 22, 2019, Plaintiff wrote to Caulfield to obtain copies of discovery documents in the nolle prossed case at docket No. CP-02-CR-8878-2011 that was closed in 2013. Id. ¶ 26. On April 25, 2019, Caulfield responded to Plaintiff, indicating that she no longer had access to those documents. Id. ¶ 27. On May 9, 2019, Plaintiff again wrote to Caulfield, explaining why he needed the documents and inquiring as to how he could obtain them. Id. ¶ 28. On May 13, 2019, Caulfield responded that per office policy, the discovery file was destroyed and that she could be of no assistance to him. Id. ¶ 29.
On January 27, 2020, Plaintiff wrote Defendant Howsie to notify him of Caulfield's actions in destroying the discovery files and that their destruction impeded his ability to substantiate his grounds for appeal. He concludes that these actions denied his access to the courts and other violations pursuant to the First, Sixth, Eighth and Fourteenth Amendments to the United States Constitution. Id. ¶ 30 & ECF No. 43-1 at 11-12. On March 9, 2020, Plaintiff wrote a similar letter to Defendant Fitzgerald complaining of the document destruction policies of the Public Defender's Office and how they have impeded his ability to appeal his criminal conviction. Complaint, ECF No. 8 ¶ 32 & ECF No. 43-1 at 9-10.
B. Legal Standard
The United States Court of Appeals for the Third Circuit summarized the standard to be applied in deciding motions to dismiss filed pursuant to Rule 12(b)(6):
Under the “notice pleading” standard embodied in Rule 8 of the Federal Rules of Civil Procedure, a plaintiff must come forward with “a short and plain statement of the claim showing that the pleader is entitled to relief.” As explicated in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), a claimant must state a “plausible” claim for relief, and “[a] claim has facial plausibility when the pleaded factual
content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Although “[f]actual allegations must be enough to raise a right to relief above the speculative level,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), a plaintiff “need only put forth allegations that raise a reasonable expectation that discovery will reveal evidence of the necessary element.” Fowler, 578 F.3d at 213 (quotation marks and citations omitted); see also Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 117-18 (3d Cir. 2013).Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014).
In addition to 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 County 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).
When considering pro se pleadings, a court must employ less stringent standards than when judging the work product of an attorney. Haines v. Kerner, 404 U.S. 519, 520 (1972). When presented with a pro se complaint, the court should construe the complaint liberally and draw fair inferences from what is not alleged as well as from what is alleged. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003). In a § 1983 action, the court must “apply the applicable law, irrespective of whether the pro se litigant has mentioned it by name.” Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (quoting Holley v. Dep't of Veteran Affairs, 165 F.3d 244, 247-48 (3d Cir. 1999)). See also Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (“Since this is a § 1983 action, the [pro se] plaintiffs are entitled to relief if their complaint sufficiently alleges deprivation of any right secured by the Constitution.”). Notwithstanding this liberality, pro se litigants are not relieved of their obligation to allege sufficient facts to support a cognizable legal claim. See, e.g., Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002); Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996).
In affording Plaintiff this liberality, the Court construes Plaintiff's Complaint in conjunction with his responsive brief and attachments.
C. Analysis
Section 1983 of the Civil Rights Act provides as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or any other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ....42 U.S.C. § 1983.
To state a claim for relief under this provision, a plaintiff must demonstrate that the conduct in the complaint was committed by a person or entity acting under color of state law and that such conduct deprived the plaintiff of rights, privileges or immunities secured by the Constitution or the laws of the United States. West v. Atkins, 487 U.S. 42, 48 (1988); Piecknick v. Commonwealth of Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994). Section 1983 does not create rights; it simply provides a remedy for violations of those rights created by the United States Constitution or federal law. Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996).
1. Allegheny County Public Defender's Office
Defendants first argue that the Public Defender's office is not a “person” capable of being sued pursuant to 42 U.S.C. § 1983 because it is a subunit of the County and not a legal entity separate from Allegheny County. Plaintiff responds that it is a proper party because it is an association and may be subject to suit pursuant to Rule 2153 of the Pennsylvania Rules of Civil Procedure.
The Pennsylvania Rules of Civil Procedure provide that “[a]n action shall be brought by or against a political subdivision in its name.” Pa. R. Civ. P. 2102(b). A political subdivision is defined as “any county, city borough, incorporated town, township, school district, county institution district or municipal or other local authority.” Pa. R. Civ. P. 76.
This Court could uncover no caselaw suggesting that the Allegheny County Public Defender's Office is an association. Instead, the caselaw indicates that the Public Defender's Office, like fire and police departments, are subunits of their respective political subdivisions. See, e.g., Monastra v. Delaware Cnty. Sheriff's Office, 49 A.3d 556, 558 (Pa. Cmwlth. Ct. 2012) (quoting Johnson v. City of Erie, 834 F.Supp. 873, 878-79 (W.D. Pa. 1993)); City of Philadelphia v. Glim, 613 A.2d 613, 616 (Pa. Cmwlth. Ct. 1992).
The Court recognizes that the United States Court of Appeals for the Third Circuit has held that, in civil rights cases, a court must give a plaintiff the opportunity to amend a deficient complaint-regardless of whether the plaintiff requests to do so-when dismissing a case for failure to state a claim, unless doing so would be inequitable or futile. See Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007). In this case, any attempt to amend as to the Public Defender's Office would be futile. Therefore, it is recommended that the Public Defender's Office be dismissed with prejudice.
2. Official Capacity Claims
Defendants next argue that the official capacity claims against Defendants Fitzgerald, Howsie and Caulfield should be dismissed as these claims are duplicative of the claims against Allegheny County. Plaintiff does not appear to respond to this argument.
The law is clear that official capacity claims are simply another way of pleading a claim against the entity for which the officer is an agent. Kentucky v. Graham, 473 U.S. 159, 165 (1985). Therefore, it is recommended that the official capacity claims against the individual Defendants be dismissed with prejudice. Any attempt to amend would be futile as a matter of law.
3. Liability of Caulfield and Howsie
Defendants argue that the claims against Caulfield and Howsie in their personal capacities must be dismissed because public defenders are immune under the Civil Rights Act, citing Brown v. Joseph, 463 F.2d 1046, 1049 (3d Cir. 1972). Plaintiff does not offer a response directed to the public defenders' immunity concerning his § 1983 claims. He does argue that a public defender acts under color of state law “while performing certain administrative functions” citing Polk County v. Dodson, 454 U.S. 312, 325 (1981).
In Polk County, the United States Supreme Court held that public defenders are not state actors in their representation of a criminal defendant. 454 U.S. at 324. Although the Court mentioned in dicta that there may be instances where a public defender acts under color of state law, the Court was clear that when performing a lawyer's traditional function as counsel to a defendant in a criminal proceeding, a public defender does not act under color of state law. Id. at 325.
The Court noted its decision in Branti v. Finkel, 445 U.S. 507 (1980) where it found that a public defender acted under color of state law when making hiring and firing decisions on behalf of the State The Court also mentioned that a public defender may act under color of state law while performing certain administrative and possibly investigative functions, citing by analogy to the issue of prosecutorial immunity in Imbler v. Pachtman, 424 U.S. 409, 430-31 & n.33 (1976).
Here, Plaintiff's claims concern Caulfield's actions in her function as his public defender in the criminal proceeding at docket No. CP-02-CR-8878-2011. In this instance, Caulfield cannot be said to be a state actor.
As to her supervisor Howsie, Plaintiff's complaints concern Caulfield's function as Plaintiff's attorney in his criminal proceeding and his objection to the Public Defender's Office document retention policy, which he attributes to Howsie, as it affects his ability to collaterally attack his conviction. Again, their function as public defenders related to the representation of Plaintiff in his criminal proceeding. See Polk County, 454 U.S. at 324; see also Brown, 463 F.2d at 1048 (A public defender's “client is a private individual, who, by reason of indigency, is unable to retain and compensate other counsel.” A private attorney is not a state actor for purposes of § 1983.).
Therefore, it is respectfully recommended that Defendants Caulfield and Howsie be dismissed from this civil action. Any attempt to amend this claim would be futile.
4. Personal involvement of Howsie and Fitzgerald
Defendants next argue that the individual capacity claims against Howsie and Fitzgerald should be dismissed for lack of personal involvement in Plaintiff's alleged violation of his constitutional rights. Plaintiff argues that Howsie's personal involvement is evidenced by his position as chief of the Public Defender's office, and that Fitzgerald approved the policies of the Public Defender's Office.
Defendants also argue that Caulfield should be dismissed for lack of personal involvement. The Complaint, however describes actions by Caulfield that would suggest her personal involvement.
It is well settled that a “defendant in a civil rights action must have personal involvement in the alleged wrongs; liability cannot be predicated solely on the operation of respondeat superior.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (citing Parratt v. Taylor, 451 U.S. 527, 537 n.3 (1981) (other citation omitted)); see also C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159, 173 (3d Cir.2005) (“To impose liability on the individual defendants, Plaintiffs must show that each one individually participated in the alleged constitutional violation or approved of it.”) (citing C.H. v. Oliva, 226 F.3d 198, 201-02 (3d Cir.2000) (en banc)). A plaintiff must aver this personal involvement through allegations of participation, personal direction, or actual knowledge and acquiescence. Rode, 845 F.2d at 1207 . These allegations “must be made with appropriate particularity.” Id. See also Iqbal, 556 U.S. at 676 (“Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.”); Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (quoting Hedges v. Musco, 204 F.3d 109, 121 (3d Cir. 2000)) (“Particularly after Iqbal, the connection between the supervisor's directions and the constitutional deprivation must be sufficient to ‘demonstrate a ‘plausible nexus' or ‘affirmative link' between the [directions] and the specific deprivation of constitutional rights at issue.'”).
Here, Plaintiff's allegations against Howsie and Fitzgerald sound in respondeat superior liability. In the Complaint, Plaintiff alleges that he wrote a “Notice of Intent” to each of these Defendants in early 2020 as supervisors of Caulfield and the Public Defender's Office. ECF No. 8 ¶¶ 30 & 32. He specifically refers to their functions as supervisors and fails to allege specific facts as to how through their own actions, they violated the Plaintiff's constitutional rights.
Therefore, it is recommended that the individual capacity claims against these Defendants be dismissed for lack of personal involvement, and on these facts, any attempt to amend would be futile.
5. First Amendment Denial of Access to the Courts
Defendants next argue that Plaintiff's First Amendment claim for denial of access to the courts must be dismissed because he has not plead that he sustained an actual injury when he did not request the documents until 2019, after his direct and collateral appeals were exhausted in 2018. Defendants also argue that because Plaintiff was afforded counsel, this claim fails as a matter of law.
Courts within the Third Circuit have consistently recognized that access-to-courts claims require some proof of an actual, concrete injury in the form of direct prejudice to the plaintiff in the pursuit of some legal claim. See, e.g., Oliver v. Fauver, 118 F.3d 175 (3d Cir. 1997); Demeter v Buskirk, No. 03-1005, 2003 WL 22139780 (E.D. Pa. Aug. 27, 2003); Castro v. Chesney, No. 97-4983, 1998 WL 150961 (E.D. Pa. March 31, 1998).
“[P]risoners may only proceed on access-to-courts claims in two types of cases, challenges (direct or collateral) to their sentences and conditions of confinement.” Monroe v. Beard, 536 F.3d 198, 205 (3d Cir. 2008). As noted in Monroe:
Where prisoners assert that defendants' actions have inhibited their opportunity to present a past legal claim, they must show (1) that they suffered an “actual injury”-that they lost a chance to pursue a “nonfrivolous” or “arguable” underlying claim; and (2) that they have no other “remedy that may be awarded as recompense” for the lost claim other than in the present denial of access suit.Id. (citing Christopher v. Harbury, 536 U.S. 403, 415 (2002)). Importantly, Plaintiff must come forward with evidence to show that the underlying arguable claim is “more than hope,” and he must also describe the “lost remedy.” See Harbury, 536 U.S. at 416-17.
Plaintiff is therefore required to alleged plausible facts that he was actually injured by Defendants' alleged interference with his right to access the courts when, in accordance with the policy of the Public Defender's Office, it destroyed documents from the nolle prossed criminal proceeding at docket No. CP-02-CR-8878-2011.
First, Plaintiff argues that the destruction of his discovery from the 2011 nolle prossed case file violates various rules of professional conduct. Violation of these rules alone, however, does not rise to the level of a constitutionally cognizable violation.
Plaintiff further argues that even though his direct and collateral appeals had concluded before he requested the discovery file from Caulfield, those documents are necessary to attack the eyewitness out of court identification made at docket No. CP-02-CR-8878-2011, which was used against him in the criminal proceeding at docket No. CP-02-CR-10539-2010 as evidence of other crimes, wrongs, or acts pursuant to Rule 404(B) of the Pennsylvania Rules of Evidence. Plaintiff also argues that for the first time, in 2014, the Pennsylvania Supreme Court in Commonwealth v. Walker, 92 A.3d 793-94 (Pa. 2014) permitted the use of expert testimony regarding eyewitness identification, and that the destroyed documents are necessary to attack the identification with the use of expert testimony.
Plaintiff is unable to allege an actual injury as a result of the destroyed file. First, Plaintiff would have to bring a PCRA proceeding to attack the out of court identification but such PCRA proceeding would be time barred. Pursuant to 42 Pa. Cons. Stat. Ann. § 9545 (b)(1), a PCRA petition, including a second or subsequent petition, must be filed within one year of the date that the judgment becomes final. A judgment is deemed final “at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania ....” 42 Pa. Cons. Stat. Ann. § 9545 (b)(3). Plaintiff's judgment became final in February 2014. See ECF No. 27-3 at 3.
Moreover, Plaintiff would be unable to avail himself of any of the three exceptions to the one-year PCRA time bar. First, Plaintiff was aware of the facts concerning the out of court identification during his criminal proceedings as he was present, so he is unable to plausibly argue that this information is newly discovered evidence. See 42 Pa. Cons. Stat. Ann. § 9545 (b)(1)(ii) (“the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence”). Second, the allegations of the Complaint do not suggest that he was unable to raise his claims previously because of some interference by government officials in violation of the state or federal constitutions or laws. See 42 Pa. Cons. Stat. Ann. § 9545 (b)(1)(i).
Relatedly, Plaintiff cannot plausibly allege that these documents were not available to him from other sources, such as the Commonwealth or the relevant police department.
For purposes of the PCRA, “government officials” do not include defense counsel, whether appointed or retained. 42 Pa Cons Stat Ann § 9545 (b)(4).
Third, Plaintiff is unable to avail himself of the 2014 caselaw to which he directs the Court. In Commonwealth v. Walker, 92 A.3d 766 (Pa. May 28, 2014), the Pennsylvania Supreme Court held that “the admission of expert testimony regarding eyewitness identification is no longer per se impermissible ....” Id. at 792-93. The Court continued that the decision to admit such expert testimony is left to the discretion of the trial court. Id. at 793.
The Pennsylvania Superior Court noted “that the decision in Walker is prospective, not retroactive.” Commonwealth v. Henderson, No. 15 WDA 2016, 2017 WL 2214744, at *1 n.3 (Pa. Super. Ct. May 18, 2017) (citing Walker, 92 A.2d at 793 (“[W]e hold that the admission of expert testimony regarding eyewitness identification is no longer per se impermissible in our Commonwealth.”). Plaintiff's direct appeals concluded in November 2013, and his judgment would be deemed final in February 2014, well before the May 28, 2014, decision in Walker. Consequently, Plaintiff may not avail himself of the new rule in Walker. Therefore, Plaintiff cannot plausibly allege that any substantive evidence he lost through the destruction of his discovery file was of value to support his First Amendment access to the courts claim because any attempt to raise the issue of eyewitness identification in a PCRA petition would be time barred.
Finally, courts have held that when a state makes counsel available to a pro se criminal defendant, even if assistance of counsel is refused, the criminal defendant's right of access to the courts is satisfied as a matter of law. See Annis v. Fayette Cnty Jail, Civil Action No. 07-1628, 2008 WL 763735, at **1, 6-7 (W.D. Pa. March 20, 2008) (citing Lamp v. Iowa, 122 F.3d 1100, 1106 (8th Cir. 1997) (“For, once the State has provided a petitioner with an attorney in postconviction proceedings, it has provided him with the ‘capability of bringing contemplated challenges to sentences or conditions of confinement before the courts.'”) (quoting Lewis v. Casey, 518 U.S. 343, 356 (1996)); Schrier v. Halford, 60 F.3d 1309, 1313-14 (8th Cir. 1995) (having appointed counsel is one way in which the state can shoulder its burden of assuring access to the courts); Sanders v. Rockland Cnty. Corr. Facility, No. 94 Civ. 3691, 1995 WL 479445, at *2 (S.D.N.Y. Aug. 14, 1995) (“By the appointment of counsel, plaintiff was afforded meaningful access to the courts in his trial.”); Rodgers v. Thomas, No. 94-4692, 1995 WL 70548, at *2 (E.D. Pa. Feb. 17, 1995), aff'd, 65 F.3d 165 (3d Cir. 1995) (Table).
Therefore, it is recommended that Defendants' Motion to Dismiss Plaintiff's First Amendment denial of access to the courts claim be granted. Any attempt to amend would be futile.
6. Supervisory Liability of Howsie and Fitzgerald
Defendants argue that to the extent that Plaintiff alleges Howsie and Fitzgerald are liable in their supervisory capacities, Plaintiff is unable to make out a claim.
In a § 1983 civil rights action, where masters do not answer for the torts of their servants, a government official is only liable for his or her own misconduct. Iqbal, 556 U.S. at 677. However, “it is not enough for a plaintiff to argue that the constitutionally cognizable injury would not have occurred if the superior had done more than he or she did.” Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989).
The Third Circuit Court of Appeals has identified two (2) general ways in which a supervisor-defendant may be liable for unconstitutional acts undertaken by subordinates. First, “a supervisor may be personally liable under § 1983 if he or she participated in violating the plaintiff's rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced” in the subordinate's unconstitutional conduct. A.M. ex rel. J.M.K. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (citing Baker v. Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995)). Plaintiff alleges no facts to suggest that he is pursuing liability under this theory.
Second, liability may attach if a supervisor, “with deliberate indifference to the consequences, established and maintained a policy, practice or custom which directly caused [the] constitutional harm.” Id. at 586 (alteration in original) (quoting Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d Cir. 1989)). In Sample v. Diecks, the Third Circuit recognized that “‘supervision' entails, among other things, training, defining expected performance by promulgating rules or otherwise, monitoring adherence to performance standards, and responding to unacceptable performance whether through individualized discipline or further rulemaking.” 885 F.2d at 1116. Sample involved an Eighth Amendment claim against a supervisor for implementing deficient policies and being deliberately indifferent to the risk that the policies would result in the deprivation of a constitutional right. Id.; see also Beers-Capitol v. Whetzel, 256 F.3d 120, 133-34 (3d Cir. 2001) (discussing Sample). The Court developed a four-part test for determining whether an official may be held liable on a claim for failure to supervise. The plaintiff must identify a supervisory policy or practice that the supervisor failed to employ, and then prove that: (1) the policy or procedures in effect at the time of the alleged injury created an unreasonable risk of a constitutional violation; (2) the defendant-official was aware that the policy created an unreasonable risk; (3) the defendant was indifferent to that risk; and (4) the constitutional injury was caused by the failure to implement the supervisory practice or procedure. Sample, 885 F.2d at 1118; Brown v. Muhlenberg Twp., 269 F.3d 205 (3d Cir. 2001).
Here, Plaintiff alleges that the Public Defender's Office policy in Section 3(a)(v), set out below, created an “unreasonable risk” that led to the violation of Plaintiff's constitutional rights. He continues that Howsie and Fitzgerald were informed of this unreasonable risk by Plaintiff's correspondence to each of them dated January 27, 2020, and March 9, 2020, respectively, claiming that the destruction of his discovery file in the nolle prossed case impeded his ability to attack his conviction. ECF Nos. 43-1 at 9-12.
Plaintiff attaches the “Allegheny County Office of the Public Defender File Retention Policy” to his responsive brief at ECF No. 43-1. The Policy provides in relevant part as follows:
3) All files shall be maintained/retained/destroyed based upon the following schedule:
a) The following files will be stored for a minimum of 60 days and then destroyed:
i) Summary offense plea/convictions;
ii) Matters closed by the retention of private counsel at the Preliminary Hearing stage;
iii) Matters closed by the retention of private counsel at the Trial stage;
iv) Matters withdrawn in accordance with a Rule 586 Settlement;
v) matters withdrawn by the Commonwealth or dismissed by the magistrate;
vi) Matters resulting in a final disposition as a result of a pretrial motion;
vii) Matters resulting in a final disposition of not guilty of all charges;
viii) Matters involving a sentence of time served or no further penalty after a determination of guilt where no probation was imposed.
ix) Matters in which OPD has withdrawn due to a conflict of interest.
b) The following files will be stored for a minimum of one (1) year and then destroyed:
i) Any conviction for a crime where the sentence is one (1) year in length or less.
c) Files for cases involving Accelerated Rehabilitative Disposition will be destroyed upon completion of the program, or after five (5) years have passed since last being represented by the office.
d) All other files, with the exception of those described in section e will be scanned and preserved in electronic format following storage for a minimum of one (1) year. The physical files will then be destroyed.
e) All homicides resulting in the death penalty will be stored indefinitely.Allegheny County Office of the Public Defender File Retention Policy, ECF No. 43-1 at 2-3.
Here, the Public Defender document retention/destruction policy does not create an unreasonable risk of a constitutional violation. Retention/destruction procedures are based on the seriousness of the crime in issue and whether a criminal defendant would be expected to take an appeal in the future. The provision placed in issue by the Plaintiff is the destruction provision for those cases withdrawn by the Commonwealth or dismissed by the magistrate, provision 3.a. (v). Appeals would not be expected on these cases and therefore, this provision would not create an unreasonable risk of a constitution violation as there would be no anticipated future use for these documents. Nor has Plaintiff plausibly alleged that these Defendant officials would be aware that the policy provision in issue created an unreasonable risk of a constitutional violation. Plaintiff only alleges he notified them via his 2020 correspondence that he was unable to obtain his discovery file from his nolle prossed case and that the absence of these documents impeded his ability to substantiate grounds for his appeal “beyond repair.” He does not allege that any other clients of the Public Defender's Office sustained a constitutional injury as a result of the provision at 3.a. (v).
Therefore, Defendants Motion to Dismiss this claim should be granted. Any attempt to amend under these facts would be futile.
7. Equal Protection
Plaintiff also attempts to make out a class of one equal protection claim against Howsie and Caulfield alleging that other criminal defendants represented by the Public Defender's Office were given their entire discovery file. He also states that the destruction of his discovery file by Caulfield and Howsie pursuant to policy was intentional and that this failure denied his access to the courts to challenge his conviction.
Plaintiff attaches the declaration of Tashon Burke who states that his public defender from the Allegheny County Public Defender's Office gave him a complete copy of his discovery file during the pretrial stages of his case. See ECF No. 43-1.
The Equal Protection Clause provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. “‘This is not a command that all persons be treated alike but, rather, ‘a direction that all persons similarly situated should be treated alike.'” Artway v. Attorney General of State of N.J., 81 F.3d 1235, 1267 (3d Cir. 1996) (quoting City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 439 (1985)). Therefore, the “unlawful administration by state officers of a state statute or regulation, resulting in its unequal application to those who are entitled to be treated alike, can deny equal protection if intentional or purposeful discrimination caused the disparity in treatment.” Little v. Terhune, 200 F.Supp.2d 445, 450 (D.N.J. 2002).
To state an equal protection claim under a class of one theory, a plaintiff must show that “(1) the defendant treated him differently from others similarly situated; (2) the defendant did so intentionally, and (3) there was no rational basis for the difference in treatment.” Hill v. Borough of Kutztown, 455 F.3d 225, 239 (3d Cir. 2006).
Here, Plaintiff's class of one claim must fail as a matter of law because Caulfield and Howsie are not state actors. See discussion, supra, at II.C.3. Any attempt to amend would be futile.
8. Qualified immunity
Defendants also raise the affirmative defense of qualified immunity. “The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity operates to ensure that, before they are subjected to suit, government officials are put on notice that their conduct is unlawful. Hope v. Pelzer, 536 U.S. 730, 739 (2002).
In determining whether qualified immunity applies, the courts conduct a two-pronged inquiry. Pearson, 555 U.S. at 232; Spady v. Bethlehem Area Sch. Dist., 800 F.3d 633, 637 (3d Cir. 2015). First, the court must determine “whether the facts that the plaintiff has alleged . . . or shown . . . make out a violation of a constitutional right.” Pearson, 555 U.S. at 232 (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). “If the plaintiff fails to make out a constitutional violation, the qualified immunity inquiry is at an end; the officer is entitled to immunity.” Bennett v. Murphy, 274 F.3d 133, 136 (3d Cir. 2002). If, however, the plaintiff can establish a constitutional violation, then the court must proceed to the second prong and determine “‘whether the right at issue was ‘clearly established' at the time of defendant's alleged misconduct.'” Spady, 800 F.3d at 637 (quoting Pearson, 555 U.S. at 232). “The relevant dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier, 533 U.S. at 202. “This is an objective inquiry, to be decided by the court as a matter of law.” Doe v. Groody, 361 F.3d 232, 238 (3d Cir. 2004). In conducting this analysis, courts have the discretion to decide which of the two prongs should be addressed first based on the circumstances of a particular case. Pearson, 555 U.S. at 236.
Here, the Court need only consider the first prong, as the Plaintiff has failed to make out any constitutionally cognizable claim. Therefore, even if the individual Defendants could be considered to be state actors, they are protected by qualified immunity.
9. Monell liability
Plaintiff also attempts to make out a claim for municipal liability against Allegheny County, arguing that the file retention/destruction policy of the Public Defender's Office, set out above, supra at II.C.6., proximately caused the constitutional injuries of which he complains. Because Plaintiff is unable to make out an underlying constitutional claim, his municipal liability claim must fail as a matter of law. See Brown v. Dep't of Health Emergency Med. Servs. Training Inst., 318 F.3d 473, 482 (3d Cir. 2003) (citing Collins v. City of Harker Heights, 503 U.S. 115, 122 (1992) (emphasizing “the separate character of the inquiry into the question of municipal responsibility and the question whether a constitutional violation occurred.”)). Therefore, Plaintiff's municipal liability claim against Allegheny County should be dismissed with prejudice. Any attempt to amend would be futile.
10. Supplemental Jurisdiction
Plaintiff attempts to make out several state law claims. It is recommended, however, that the Court decline to exercise its supplemental jurisdiction should the Court adopt the recommendation to dismiss Plaintiff's Complaint. See 28 U.S.C. § 1367(c)(3); Borough of West Mifflin v. Lancaster, 45 F.3d 780 (3d Cir. 1995) (“[W]here the claim over which the district court has original jurisdiction is dismissed before trial, the district court must decline to decide the pendent state claims unless considerations of judicial economy, convenience, and fairness to the parties provide an affirmative justification for doing so.”)
In light of the above analysis, the court need not address the parties' arguments concerning the statute of limitations.
III. CONCLUSION
It is respectfully recommended that the Motion to Dismiss for Failure to State a Claim filed by Defendants Lisa V. Caulfield, Rich Fitzgerald, Elliott C. Howsie, the Allegheny County, and the Public Defender's Office (ECF No. 26) be granted.
In accordance with the Magistrate Judges Act, 28 U.S.C. §636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of service of a copy of this Report and Recommendation to file objections. Any party opposing the objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file timely objections will constitute a waiver of any appellate rights.