Opinion
Civil Action 1:22-cv-00949
08-31-2023
KATIE F. LAPP, Plaintiff, v. DAVID ALAN COHEN, et al., Defendants.
RAMBO, J.
REPORT AND RECOMMENDATION
JOSEPH F. SAPORITO, JR. UNITED STATES MAGISTRATE JUDGE
The plaintiff, Katie F. Lapp, has filed a handwritten pro se amended complaint, asserting federal civil rights claims against eight defendants, all of whom are sued in both their personal and official capacities: (1) David Alan Cohen, her current or former husband and the father of their minor child, H.R.C.; (2) Trudy Mintz, Cohen's attorney in state-court child custody proceedings; (3) Brian Baker, an attorney and guardian ad litem appointed to represent H.R.C. in those same statecourt proceedings; (4) Joshua Stimeling, the sheriff of Juniata County, Pennsylvania; (5) Kyle L. Drick, a Pennsylvania state trooper; (6) D. Peter Johnson, an attorney and the district attorney of Union County, Pennsylvania; (7) Jennifer J. Bowers, a Pennsylvania state trooper; and (8) Ernest Ritter, the sheriff of Union County. For relief, Lapp seeks declaratory judgment, injunctive relief, and monetary damages. (Doc. 9.)
Lapp appears to subscribe to the specious “redemptionist” theory, common among individuals in the sovereign citizen, militia, and tax protestor movements. Adherents to this “redemptionist” theory believe
that a person has a split personality: a real person and a fictional person called the “strawman.” The “strawman” purportedly came into being when the United States went off the gold standard in 1993, and, instead, pledged the strawman of its citizens as collateral for the country's national debt. Redemptionists claim that government has power only over the strawman and not over the live person, who remains free.Monroe v. Beard, 536 F.3d 198, 203 n.2 (3d Cir. 2008). Other hallmarks include the characterization of laws of general applicability and court rulings as “contracts” between the government and the litigant, see, e.g., Roche v. Attorney Gen., 420 Fed. App'x 124, 125 & n.2 (3d Cir. 2011) (per curiam), and the use of a hyphen and/or colon to signify a plaintiff's “real” name, see United States v. Rigler, 885 F.Supp.2d 923, 930 n.4 (S.D. Iowa 2012); Audio Invs. v. Robertson, 203 F.Supp.2d 555, 565 n.2 (D.S.C. 2002). Here, the plaintiff refers to herself in the caption of her pleadings as “Katie-F; Lapp,” and she has signed her pleadings “Katie-F; Lapp, sui juris, all rights reserved UCC 1-308.” (Doc. 9.) The Court declines to participate in this sophomoric exercise, and we have docketed this case simply as having been brought by Katie F. Lapp, the plaintiff's real and legal name. The style or capitalization of her name in the caption is of no legal significance in any event, but merely identifies Lapp as the party bringing this action. See Jaeger v Dubuque Cty, 880 F.Supp. 640, 64344 (N.D. Iowa 1995).
At the time of filing, Lapp was incarcerated as a pretrial detainee at Northumberland County Jail, located in Northumberland County, Pennsylvania, but she has since been released from confinement. (See Doc. 33.) Lapp has been granted leave to proceed in forma pauperis in this action. (Doc. 29.)
Lapp has also filed three separate motions for preliminary injunctive relief. Her first motion seeks an order by this court vacating the state criminal judgment against her. (Doc. 17.) The second motion seeks an order by this court directing that she be acquitted of the state criminal charges and released from incarceration, and directing that custody of her child be returned to her. (Doc. 25; see also Doc. 28.) The third motion seeks an order restoring her custody over the child and directing that she be permitted twice-weekly video or telephone visits with the child while incarcerated. (Doc. 31; see also Doc. 32.)
I. Background
Lapp's claims arise out of a child custody dispute. At some point in recent years, full custody of H.R.C. was awarded to Lapp's ex-husband, Cohen, and Lapp appears to have lost visitation rights. She claims that this outcome in state family court proceedings is a violation of her constitutionally protected personal religious belief that it is God's will that she have full and exclusive custody of her child. Based on this loss in the state family court proceedings, she asserts that her ex-husband, Cohen, his lawyer, Mintz, and a court-appointed guardian ad litem, Baker, violated her federal civil rights.
Lapp alleges that the family court proceedings commenced in September 2019. It is not clear from the pleadings when Cohen was awarded custody and Lapp was denied visitation rights.
The other defendants are alleged to have violated her constitutional rights in various encounters that stemmed from this state court custody determination. On August 7, 2020, Sheriff Stimeling was apparently called upon to enforce the state court's custody order, leading to an encounter in which he removed the child from Lapp's physical custody, and charged Lapp with the summary offense of disorderly conduct by creating a hazardous or physically offensive condition. Ultimately, Lapp pleaded guilty on September 2, 2020. See Commonwealth v. Lapp, Docket No. MJ-41301-NT-0000160-2020 (Juniata Cnty. (Pa.) Magis. Dist Ct.).
Later, in November 2021, Lapp sent a letter by registered mail to Sheriff Stimeling and Sheriff Ritter, forwarding an “affidavit” she had composed that purported to “lay claim” to her “property,” H.R.C. In forwarding this document to the two sheriffs, she claims to have notified them that it was their constitutional duty to retrieve H.R.C. from Cohen and return the child to her.
On November 30, 2021, Lapp went to her child's school with the intent to “exercise her religious belief” and take physical custody of her daughter, but the school was not in session that day. Apparently aware of this attempt, Cohen reported it to a Pennsylvania state trooper, Drick. On December 3 or 4, 2021, after consulting with the county district attorney, Johnson, Drick prepared a no-trespass letter addressed to Lapp, advising her that she was no longer allowed to be on the property of the school attended by H.R.C., and warning her that criminal charges for interference with the custody of children were under consideration by the district attorney. Lapp, however, alleges that she did not receive a copy of the letter until April 5, 2022.
On December 4, 2021, Drick filed a criminal complaint charging Lapp with the felony offenses of attempted interference with custody of a child and tampering with public records or information. Drick also requested that a warrant be issued for Lapp's arrest, allegedly without probable cause.
On December 6, 2021, Lapp made a second attempt to take physical custody of H.R.C. While she waited in her car for the school to dismiss its students at the end of the day, another Pennsylvania state trooper, Bowers, arrested Lapp.
On February 24, 2022, Lapp mailed a letter to the Union County district attorney, Ritter, requesting that she be released from her allegedly unconstitutional confinement.
On June 6, 2022, following a jury trial, Lapp was convicted on one count of criminal attempt to interfere with custody of a child and two counts of tampering with public records or information. On August 15, 2022, Lapp was sentenced to serve a term of 11 to 23 months in prison, as well as five years on probation. See Commonwealth v. Lapp, Docket No. CP-60-CR-0000356-2021 (Union Cnty. (Pa.) C.C.P.). Lapp filed a direct appeal to the Superior Court of Pennsylvania, which remains pending before that court. See Commonwealth v. Lapp, Docket No. 1304 MDA 2022 (Pa. Super. Ct.).
On or before July 5, 2023, Lapp was released from custody.
II. Legal Standards
A. Lack of Subject Matter Jurisdiction
The plaintiff bears the burden of establishing the existence of subject matter jurisdiction when challenged under Rule 12(b)(1). See Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991); see also Shawe v. Pincus, 265 F.Supp.3d 480, 484 (D. Del. 2017) (“A motion to dismiss pursuant to the Rooker-Feldman doctrine is a challenge to the court's subject matter jurisdiction.”). A defendant may challenge the existence of subject matter jurisdiction in one of two fashions: it may attack the complaint on its face or it may attack the existence of subject matter jurisdiction in fact, relying on evidence beyond the pleadings. See Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000); Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). Where a defendant attacks a complaint as deficient on its face, “the court must consider the allegations of the complaint as true.” Mortensen, 549 F.2d at 891. “In deciding a Rule 12(b)(1) facial attack, the court may only consider the allegations contained in the complaint and the exhibits attached to the complaint; matters of public record such as court records, letter decisions of government agencies and published reports of administrative bodies; and ‘undisputably authentic' documents which the plaintiff has identified as a basis of his claims and which the defendant has attached as exhibits to his motion to dismiss.” Medici v. Pocono Mountain Sch. Dist., No. 09-CV-2344, 2010 WL 1006917, at *2 (M.D. Pa. Mar. 16, 2010). However, when a motion to dismiss attacks the existence of subject matter jurisdiction in fact, “no presumptive truthfulness attaches to plaintiff's allegations,” and “the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” Mortensen, 549 F.2d at 891. This case falls into the latter category. See Shawe, 265 F.Supp.3d at 484 (“An attack to subject matter jurisdiction based on the Rooker-Feldman doctrine is a factual attack.”); accord Walthour v. Child & Youth Servs., 728 F.Supp.2d 628, 635 (E.D. Pa. 2010). Moreover, it is appropriate for a district court to consider sua sponte dismissal under Rooker-Feldman. See In re. Madera, 388 B.R. 586, 596 (E.D. Pa. 2008) (“Because the doctrine divests the court of subject matter jurisdiction, it may be raised at any time by either party or by the court sua sponte.”); see also Garry v. Geils, 82 F.3d 1362, 1364 (7th Cir. 1996) (“Since the Rooker-Feldman doctrine is about whether inferior federal courts have the authority (i.e., subject matter jurisdiction) to hear a given case, it can be raised . . . sua sponte by the court.”).
B. Failure to State a Claim Upon Which Relief Can Be Granted
Under 28 U.S.C. § 1915A, the court is obligated to screen a civil complaint in which a prisoner is seeking redress from a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a); James v. Pa. Dep't of Corr., 230 Fed. App'x 195, 197 (3d Cir. 2007). The court must dismiss the complaint if it “fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915A(b)(1). The court has a similar obligation with respect to actions brought in forma pauperis. See 28 U.S.C. § 1915(e)(2)(B)(ii). See generally Banks v. Cty. of Allegheny, 568 F.Supp.2d 579, 587-89 (W.D. Pa. 2008) (summarizing prisoner litigation screening procedures and standards).
The legal standard for dismissing a complaint for failure to state a claim under § 1915A(b)(1) or § 1915(e)(2)(B)(ii) is the same as that for dismissing a complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Brodzki v. Tribune Co., 481 Fed. App'x 705, 706 (3d Cir. 2012) (per curiam); Mitchell v. Dodrill, 696 F.Supp.2d 454, 471 (M.D. Pa. 2010); Banks, 568 F.Supp.2d at 588. “Under Rule 12(b)(6), a motion to dismiss may be granted only if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court finds the plaintiff's claims lack facial plausibility.” Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing Bell Atlantic Corp. v Twombly, 550 U.S. 544, 555-56 (2007)). In deciding the motion, the court may consider the facts alleged on the face of the complaint, as well as “documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). Although the court must accept the fact allegations in the complaint as true, it is not compelled to accept “unsupported conclusions and unwarranted inferences, or a legal conclusion couched as a factual allegation.” Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (quoting Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007)). Nor is it required to credit factual allegations contradicted by indisputably authentic documents on which the complaint relies or matters of public record of which we may take judicial notice. In re Washington Mut. Inc., 741 Fed. App'x 88, 91 n.3 (3d Cir. Sept. 25, 2018); Sourovelis v. City of Philadelphia, 246 F.Supp.3d 1058, 1075 (E.D. Pa. 2017); Banks, 568 F.Supp.2d at 588-89.
III. Discussion
Lapp has brought this federal civil rights action under 42 U.S.C. § 1983. Section 1983 provides in pertinent part:
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 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. Section 1983 does not create substantive rights, but instead provides remedies for rights established elsewhere. City of Oklahoma v. Tuttle, 471 U.S. 808, 816 (1985). To establish a § 1983 claim, the plaintiff must establish that the defendant, acting under color of state law, deprived the plaintiff of a right secured by the United States Constitution. Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995). To avoid dismissal for failure to state a claim, a civil rights complaint must state the conduct, time, place, and persons responsible for the alleged civil rights violations. Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005).
A. Incarceration-Related Claims for Injunctive Relief
In her amended complaint and her first two motions for preliminary injunctive relief, Lapp has requested injunctive relief that would expressly or implicitly include her release from incarceration. In her third motion for injunctive relief, Lapp has requested an order directing that she be permitted twice-weekly video or telephone visits with her child while incarcerated. But because she has been released from incarceration while this action has been pending, these particular claims for injunctive relief are now moot. See Cobb v. Yost, 342 Fed. App'x 858, 859 (3d Cir. 2009) (per curiam); see also Sutton v. Rasheed, 323 F.3d 236, 248 (3d Cir. 2003) (per curiam); Abdul-Akbar v Watson, 4 F.3d 195, 206-07 (3d Cir. 1993). Accordingly, we recommend that her § 1983 claims for injunctive relief and her motions for preliminary injunctive relief be dismissed as moot to the extent they seek release from incarceration or modification of her conditions of confinement, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure.
This court would lack subject matter jurisdiction to grant such relief in an § 1983 action in any event. See generally Preiser v. Rodriguez, 411 U.S. 475, 500 (1973).
B. Child Custody-Related Claims for Injunctive Relief
In her amended complaint and two of her motions for preliminary injunctive relief, Lapp has requested an order by this federal district court directing that she be granted full and exclusive custody of her child, H.R.C. But such relief is barred by the Rooker-Feldman doctrine.
Rooker-Feldman “is a narrow doctrine, confined to ‘cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.'” Lance v. Dennis, 546 U.S. 459, 464 (2006) (per curiam) (quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005)). “[T]here are four requirements that must be met for the Rooker-Feldman doctrine to apply: (1) the federal plaintiff lost in state court; (2) the plaintiff ‘complain[s] of injuries caused by [the] state-court judgments'; (3) those judgments were rendered before the federal suit was filed; and (4) the plaintiff is inviting the district court to review and reject the state judgments.” Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 166 (3d Cir. 2010) (alterations in original) (quoting Exxon Mobil, 544 U.S. at 284).
Based on the facts alleged in the amended complaint, it is clear that all four requirements have been met here. These claims for injunctive relief concern an injury caused by a previous state-court judgment that granted legal and physical custody of the child, H.R.C., to Cohen, and that restrained Lapp from visitation or contact with the child. Granting the requested relief would require this court to reject that state-court judgment with respect to child custody, which falls squarely within the scope of the Rooker-Feldman doctrine. See Lane v. New Jersey, 753 Fed. App'x 129, 131 (3d Cir. 2018) (per curiam) (citing Great W. Mining & Mineral Co., 615 F.3d at 166).
We note that other courts have also found that federal courts also lack subject matter jurisdiction over claims for this particular form of injunctive relief under the domestic relations exception to federal jurisdiction, which “divests the federal courts of power to issue divorce, alimony, and child custody decrees.” Ankenbrandt v. Richards, 504 U.S. 689, 702 (1992); see also Stumpf v Maywalt, 605 F.Supp.3d 511, 518-19 (W.D.N.Y. 2022) (§ 1983 claims aimed at changing the results of state custody proceedings barred by the domestic relations exception). But the Third Circuit has previously held that the domestic relations exception is limited to diversity jurisdiction only, and it does not apply to § 1983 claims. See Flood v. Braaten, 727 F.2d 303, 308 (3d Cir. 1984); see also McLaughlin v. Pernsley, 876 F.2d 308, 312-13 (3d Cir. 1989) (recognizing circuit split, but noting that Flood remained binding circuit precedent); Wattie-Bey v. Attorney Gen.'s Office, 424 Fed. App'x 95, 96 n.1 (3d Cir. 2011) (per curiam) (citing Flood and McLaughlin).
Accordingly, we recommend that Lapp's custody-related § 1983 claims for injunctive relief and her motions for preliminary injunctive relief be dismissed for lack of subject matter jurisdiction to the extent they seek an order by this court rejecting a previous state-court judgment and directing that Lapp be awarded custody of the child, H.R.C., pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure.
C. Claims Against Private Individuals
The plaintiff has asserted § 1983 claims against defendant Cohen, her ex-husband, and defendant Mintz, the lawyer who represented him in child custody proceedings. But Cohen and Mintz are not state actors, and thus § 1983 affords no cause of action against them.
The “under color of state law” element of § 1983 excludes from its reach “merely private conduct, no matter how discriminatory or wrongful.” Blum v. Yaretsky, 457 U.S. 991, 1002 (1982). It is beyond cavil that Cohen and Mintz are private individuals, not arms of the state. Under limited circumstances, a private individual may be liable under § 1983 if his or her conduct is so closely related to governmental conduct that it can be fairly viewed as conduct of the state itself. See Mark, 51 F.3d at 1142-43 (detailing the various tests used to analyze whether private conduct may be treated as state action).
But none of the conduct alleged by Lapp can be fairly viewed as state action. She has failed to allege facts to plausibly demonstrate that Cohen or Mintz “acted with the help of or in concert with state officials.” Id. at 1142. The mere fact that Cohen and Mintz may have prevailed against Lapp in state court child custody proceedings does not convert them into state actors or make their litigation activities improper state action. See Heffley v. Steele, 826 Fed. App'x 227, 231 (3d Cir. 2020) (per curiam) (affirming dismissal of § 1983 claims against plaintiff's wife and lawyers who represented her in child custody proceedings); see also Wallace v. Fed. Emps., 325 Fed. App'x 96, 102 (3d Cir. 2009) (per curiam) (“[L]itigation does not transform a private actor into an entity acting under color of state or federal law, and conclusory allegations of conspiracy do not suffice.”) (internal quotation marks omitted); Clapp v. LeBoeuf, Lamb, Leiby & MacRae, 862 F.Supp. 1050, 1059 (S.D.N.Y. 1994). Similarly, merely reporting a potential crime to police does not convert a private individual into a state actor. See Boyer v. Mohring, 994 F.Supp.2d 649, 658 (E.D. Pa. 2014) (“A private entity who reports a plaintiff to police is not considered a state actor.”); see also Ginsberg v. Healey Car & Truck Leasing, Inc., 189 F.3d 268, 272 (2d Cir. 1999); Stewart v. Victoria's Secret Stores, LLC, 851 F.Supp.2d 442, 446 (E.D.N.Y. 2012).
Accordingly, we recommend that the plaintiff's § 1983 claims against Cohen and Mintz be dismissed for failure to state a claim upon which relief can be granted, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
D. Quasi-Judicial Immunity
The plaintiff has asserted § 1983 claims against defendant Baker, a guardian ad litem appointed by a state court to represent the interests of her child, H.R.C., in state-court child custody proceedings, and she has asserted § 1983 claims against Stimeling, a county sheriff who removed H.R.C. from Lapp's custody pursuant to a state-court child custody order. But in doing so, Baker and Stimeling acted as arms of the state court, and thus they are entitled to absolute immunity from suit under the doctrine of quasi-judicial immunity. See Heffley, 826 Fed. App'x at 231 (finding that guardian ad litem was immune from suit); Villarreal v. New Jersey, 803 Fed. App'x 583, 588 (3d Cir. 2020) (per curiam) (“Law enforcement officials executing a facially valid court order are protected by absolute quasi-judicial immunity.”) (brackets omitted); Gardner ex rel. Gardner v. Parson, 874 F.2d 131, 146 (3d Cir. 1989) (stating that a guardian ad litem “should be absolutely immune when acting as an integral part of the judicial process”) (brackets and internal quotation marks omitted). See generally Briscoe v. LaHue, 460 U.S. 325, 335 (1983) (recognizing that “the common law provided absolute immunity from subsequent damages liability for all persons-governmental or otherwise-who were integral parts of the judicial process,” which continues to apply under § 1983).
Accordingly, we recommend that Lapp's § 1983 claims against Baker and her § 1983 claims against Stimeling based on his retrieval of the child, H.R.C., from Lapp's physical custody pursuant to a state-court child custody order be dismissed for failure to state a claim upon which relief can be granted, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(1).
E. Failure to Investigate Others
The plaintiff appears to assert § 1983 claims against defendant Stimeling, the Juniata County sheriff, and defendant Ritter, the Union County sheriff, based on their failure to investigate Cohen for unlawfully keeping custody H.R.C., and their failure to retrieve H.R.C. from Cohen and return physical custody of the child to Lapp. The plaintiff alleges that she sent a letter to both county sheriffs on November 18, 2021, notifying them that they had a purported constitutional duty to retrieve H.R.C. from Cohen and return her to Lapp's custody. But it is well established that “there is no constitutional right to the investigation or prosecution of another.” Sanders v. Downs, 420 Fed. App'x 175, 180 (3d Cir. 2011) (per curiam); see also Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (“[A] private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.”); United States v. Wegeler, 941 F.3d 665, 668 (3d Cir. 2019) (quoting Linda R.S.); In re Kaminski, 960 F.2d 1062, 1064-65 (D.C. Cir. 1992) (a private party has no right to compel the investigation of another person) (citing Linda R.S.). Accordingly, we recommend that Lapp's § 1983 claims against Stimeling and Ritter for their failure to investigate Cohen or to retrieve the child, H.R.C., from Cohen and return her to Lapp's custody be dismissed for failure to state a claim upon which relief can be granted, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(1).
F. Claims Against District Attorney
The plaintiff has asserted § 1983 claims against defendant Johnson, the county district attorney who allegedly approved prosecution of the state criminal charges against her.
The amended complaint does not suggest that Johnson personally prosecuted the case, and publicly available state court records indicate that the Commonwealth was represented by a non-party assistant district attorney in her criminal case.
The plaintiff's claim against Johnson is based solely on his conduct as an advocate in the judicial phase of the criminal process-that is, initiating a prosecution and presenting the state's case-and thus the plaintiff's § 1983 claim is barred by the doctrine of absolute prosecutorial immunity. See Imbler v Pachtman, 424 U.S. 409, 430-31 (1976); Walker v. City of Philadelphia, 436 Fed. App'x 61, 62 (3d Cir. 2011) (per curiam); see also Van de Kamp v. Goldstein, 555 U.S. 335, 345 (2009) (supervisory prosecutors also receive absolute immunity for conduct implicating their advocacy function); Kulwicki v. Dawson, 969 F.2d 1454, 1465 (3d Cir. 1992) (noting that this absolute immunity “extends to ‘the preparation necessary to present a case,' and this includes the ‘obtaining, reviewing, and evaluation of evidence'”).
Accordingly, we recommend that the plaintiff's § 1983 claims against Johnson be dismissed for failure to state a claim upon which relief can be granted, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(1).
G. Fourth Amendment Claims Against Police Officers
The plaintiff has asserted a § 1983 malicious prosecution claim against defendant Drick, the Pennsylvania state trooper who initiated the criminal charges against her, and a § 1983 false arrest claim against defendant Bowers, the Pennsylvania state trooper who arrested her two days later. But these claims are barred by the favorable termination rule articulated by the Supreme Court of the United States in Heck v. Humphrey, 512 U.S. 477 (1994).
In Heck, the Supreme Court held that, where judgment in favor of a plaintiff in a § 1983 action for damages would necessarily imply the invalidity of the plaintiff's criminal conviction or sentence, the plaintiff must first demonstrate that “the criminal proceedings have terminated in the plaintiff's favor.” Id. at 489. “[I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus [under] 28 U.S.C. § 2254.” Id. at 486-87 (footnote omitted). In Wilkinson v. Dotson, 544 U.S. 74 (2005), the Supreme Court reaffirmed the favorable termination rule and broadened it to encompass equitable remedies as well, holding that “a state prisoner's § 1983 action is barred (absent prior invalidation)-no matter what the relief sought (damages or equitable relief), no matter the target of the prisoner's suit (state conduct leading to conviction or internal prison proceedings)-if success in that action would necessarily demonstrate the invalidity of confinement or its duration.” Wilkinson, 544 U.S. at 81-82.
Here, Lapp's malicious prosecution claims is clearly barred by Heck because favorable termination is a necessary element of the claim itself. See Massey v. Pfeifer, 804 Fed. App'x 113, 115 (3d Cir. 2020) (per curiam); Olick v. Pennsylvania, 739 Fed. App'x 722, 725-26 (3d Cir. 2018) (per curiam); see also Heck, 512 U.S. at 484 (“One element that must be alleged and proved in a malicious prosecution action is termination of the prior criminal proceeding in favor of the accused.”). Lapp has taken a direct appeal from her judgment of conviction and sentence, but that appeal remains pending before the Superior Court of Pennsylvania.
Although “Heck does not automatically bar [Lapp's] claims of false arrest[,] . . . there are circumstances in which Heck may bar such claims.” Olick, 739 Fed. App'x at 726; see also Montgomery v. De Simone, 159 F.3d 120, 126 n.5 (3d Cir. 1998) (recognizing that, “[b]ecause a conviction and sentence may be upheld even in the absence of probable cause for the initial stop and arrest,” claims of false arrest do not necessarily implicate the validity of a conviction or sentence). Here, Lapp's arrest was based on the very same conduct for which she was ultimately convicted- attempted interference with custody of a child-and thus success on her false arrest claim in this case would necessarily imply the invalidity of her state court conviction. See Olick, 739 Fed. App'x at 726 (“If we were to accept Olick's contentions, and he were to prevail on his false arrest and false imprisonment claims, it would therefore necessarily imply the invalidity of the state court fact finding and, under the circumstances of this case, his harassment conviction.”); Fields v. City of Pittsburgh, 714 Fed. App'x 137, 140-41 (3d Cir. 2017) (“Fields' success on his false arrest claim depends on a finding that the officers lacked probable cause to arrest him, which would directly impugn the validity of his resulting guilty plea.”) (internal quotation marks and brackets omitted); Yoast v. Pottstown Borough, 437 F.Supp.3d 403, 426 n.80 (E.D. Pa. 2020) (“Because Yoast's imprisonment was based on the same conduct that he was convicted for, if his imprisonment was not lawful then conviction was not either valid.”).
See generally 18 Pa. Cons. Stat. Ann. § 2904(a) (“A person commits an offense if he knowingly or recklessly takes or entices any child under the age of 18 years from the custody of its parent, guardian or other lawful custodian, when he has no privilege to do so.”); § 901(a) (“A person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime.”).
Even if the Heck doctrine did not bar Lapp's § 1983 false arrest claim, Bowers would be entitled to dismissal on the facts alleged in the complaint. A § 1983 false arrest claim requires a plaintiff to plead or prove that the arrest occurred without the existence of probable cause. See Murphy v. Bendig, 232 Fed. App'x 150, 153 (3d Cir. 2007) (per curiam); Sheedy v. City of Philadelphia, 184 Fed. App'x 282, 284 (3d Cir. 2006) (per curiam). “Probable cause exists where 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.” United States v. Cruz, 910 F.2d 1072, 1076 (3d Cir. 1990); see also Andrews v. Scuilli, 853 F.3d 690, 697 (3d Cir. 2017) (recognizing that the very same probable cause analysis applies whether considering false arrest or malicious prosecution claims). “Courts determine the existence of probable cause by using an objective standard.” Wychunas v. O'Toole, 252 F.Supp.2d 135, 142 (M.D. Pa. 2003). “Thus, a police officer will be liable for civil damages for an arrest if ‘no reasonably competent officer' would conclude that probable cause existed.” Id.
The amended complaint alleges that Drick requested the issuance of an arrest warrant on December 4, 2021. Two days later, on December 6, 2021, Bowers allegedly encountered Lapp at her daughter's school and arrested her pursuant to that outstanding warrant. A facially valid warrant establishes probable cause for an arrest and indicates that the arrest was objectively reasonable. See Messerschmidt v. Millender, 565 U.S. 535, 546 (2012) (“Where the alleged Fourth Amendment violation involves a search or seizure pursuant to a warrant, the fact that a neutral magistrate has issued a warrant is the clearest indication that the officers acted in an objectively reasonable manner or, as we have sometimes put it, in ‘objective good faith.'”); Young v. City of Hackensack, 178 Fed. App'x 169, 171-72 (3d Cir. 2006) (per curiam) (affirming district court finding that defendant officers had probable cause to arrest plaintiff based on a facially valid warrant); White v. Andrusiak, Civil Action No. 14-7045, 2015 WL 4999492, at *6 (E.D. Pa. Aug. 19, 2015) (finding arresting officer's reliance on a facially valid arrest warrant was not improper as a matter of law). Moreover, the plaintiff alleges no facts to suggest that Bowers was aware of any false statements by Drick or omissions that created a falsehood in his application for a warrant, see Sebastian v. Vorhees Twp., Civil Action No. 08-6097 (JEI/KMW), 2011 WL 540301, at *6 (D.N.J. Feb. 8, 2011), or any other circumstances that would make it “obvious that no reasonably competent officer would have concluded that a warrant should issue.” See Messerschmidt, 565 U.S. at 547 (quoting Malley v. Briggs, 475 U.S. 341 (1986)); White, 2015 WL 4999492, at *6 (citing Messerschmidt). See generally Wilson v. Russo, 212 F.3d 781, 786-87 (3d Cir. 2000) (“[A] plaintiff may succeed in a § 1983 action for false arrest made pursuant to a warrant if the plaintiff shows . . .: (1) that the police officer ‘knowingly and deliberately, or with a reckless disregard for the truth, made false statements or omissions that create a falsehood in applying for a warrant;' and (2) that ‘such statements or omissions are material, or necessary, to the finding of probable cause.'”).
We note that the plaintiff does allege that Bowers made false statements in a subsequent report, dated December 11, 2021. The plaintiff alleges that the officer's report stated that Lapp received a no-trespass notice on December 4, 2021, but Lapp did not actually receive that notice until April 5, 2022. But any information regarding the no-trespass notice prepared by Drick on December 4, 2021, is entirely immaterial to the criminal offenses for which Lapp was actually charged and convicted, which did not include criminal trespass. See supra note 6.
Finally, the plaintiff has failed to allege any facts whatsoever to support a reasonable inference that the arrest warrant was invalid or improper. As our sister court has explained:
The issuance by a neutral and detached magistrate of an arrest warrant as to all of the charges against plaintiff in the complaint is sufficient to defeat any false arrest (and malicious prosecution) claim. The further judicial finding at the preliminary hearing that probable cause existed as to all of the charges is sufficient to defeat any false arrest (and malicious prosecution) claim. The jury verdict of guilt on the [interference with custody of a child and tampering with public records or information] charges is sufficient to defeat any false arrest (and malicious prosecution) claim.Shelley v. Wilson, Civ. No. 04-02, 2008 WL 5244922, at *3 (W.D. Pa. Dec. 15, 2008).
Accordingly, we recommend that the plaintiff's § 1983 malicious prosecution claim against Drick and her § 1983 false arrest claim against Bowers be dismissed for failure to state a claim upon which relief can be granted, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(1).
H. Leave to Amend
The Third Circuit has instructed that if a civil rights complaint is vulnerable to dismissal for failure to state a claim, the district court must permit a curative amendment, unless an amendment would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). This instruction applies equally to pro se plaintiffs and those represented by counsel. Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004). In this case, based on the facts alleged in the amended complaint and state court records of which we may properly take judicial notice, it is clear that any amendment would be futile. Therefore, we recommend that the plaintiff's claims be dismissed without leave to amend.
IV. Recommendation
For the foregoing reasons, it is recommended that:
1. The plaintiff's § 1983 claims for injunctive relief be DISMISSED as moot to the extent they seek release from incarceration or modification of her conditions of confinement, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure;
2. The plaintiff's § 1983 claims for injunctive relief be DISMISSED for lack of subject matter jurisdiction to the extent they seek an order by this court rejecting a previous state-court judgment and directing that Lapp be awarded custody of the child, H.R.C., pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure;
3. The plaintiff's § 1983 claims against David Allen Cohen and Trudy Mintz be DISMISSED for failure to state a claim upon which relief can be granted, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii);
4. The plaintiff's § 1983 claims against Brian Baker, Joshua Stimeling, Kyle L. Drick, D. Peter Johnson, Jennifer Bowers, and Ernest Ritter be DISMISSED for failure to state a claim upon which relief can be granted, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(1);
5. The plaintiff's motions for preliminary injunctive relief (Doc. 17; Doc. 25; Doc. 31) be DISMISSED as moot; and
6. The clerk be directed to mark this case as CLOSED.
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated August 3i, 2023. Any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
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)(i)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (i4) 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.
Failure to file timely objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights.