Opinion
Civil Action 1:22-cv-00365
01-18-2024
DONOVON LEE, Plaintiff, v. L. FISCUS, DOC HEARING EXAMINER; CAPTAIN FRANK SALVAY, CO IV; LIEUTENANT M.V. SMITH, CO III; TROOPER JOHN BOARDMAN, and COURTNEY HAIR-LARUE, CHIEF DEPUTY ASSISTANT DISTRICT ATTORNEY CUMBERLAND COUNTY; Defendants.
Susan Paradise Baxter, United States District Judge
REPORT AND RECOMMENDATION RE: MOTION TO DISMISS FILED BY THE COMMONWEALTH DEFENDANTS (ECF NO. 28)
CYNTHIA REED EDDY, United States Magistrate Judge
I. Recommendation
Defendants Fiscus, Salvay, Smith, and Boardman (collectively, the “Commonwealth Defendants”) have moved to dismiss the Amended Complaint under Federal Rules of Civil Procedure 12(b)(6). (ECF No. 28). The motion has been referred to the undersigned for a Report and Recommendation pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), Federal Rule of Civil Procedure 72(b), and Local Rules 72.1.3 and 72.13. It is respectfully recommended that the motion to dismiss be granted and all claims against the Commonwealth Defendants be dismissed with prejudice. It is further recommended that leave to amend be denied as futile.
II. Report
A. Introduction
Plaintiff, Donovon Lee, a state prisoner in the custody of the Pennsylvania Department of Corrections (“DOC”), initiated this pro se civil rights action on December 22, 2022, by filing a Motion for Leave to proceed in forma pauperis (“IFP motion”). Attached to the IFP motion was a Complaint for Violation of Civil Rights, which was lodged pending disposition of the IFP motion. (ECF No. 1). The IFP Motion was granted on January 3, 2023 (ECF No. 4), and the Complaint was filed that day. (ECF No. 6).
Plaintiff's claims arise out of events that began on January 18, 2018, when the Pennsylvania State Police (“PSP”), Carlisle Station, received a letter from Plaintiff allegedly containing a toxic substance. After a police investigation, Plaintiff was placed in a psychiatric observation cell for seven days, issued and found guilty of a DOC institutional misconduct, and subsequently charged with multiple criminal offenses in the Court of Common Pleas of Cumberland County at Docket No. CP-21-CR-0000338-2020. At the conclusion of a jury trial in October 2022, the jury returned a verdict of “Not Guilty” on all charges. (ECF No. 26-5).
Plaintiff brings his claims under 42 U.S.C. § 1983 stating that Defendants' actions violated his constitutional rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments. Five individuals are named as defendants: Courtney Hair LaRue, a prosecutor from the Cumberland County District Attorney's office (“ADA Hair LaRue”); John Boardman, a Pennsylvania State Police Trooper; and three DOC prison officials: L. Fiscus, Frank Salvay, and L.V. Smith. All defendants are named in their individual and official capacities. Plaintiff claims he has suffered mental harm and asks the Court to grant him “Any/all relief the courts deem appropriate. Reimbursed for all the money I would have made had this not happened. The Misconduct Removed from my jail file. All Defendants held accountable for their actions. Any/all property taken and/or lost by the DOC and/or PSP to be replaced/returned.” Amended Complaint, at ¶ VI (quoted verbatim).
Once served, ADA Hair LaRue and the Commonwealth Defendants each moved to dismiss the Complaint. (ECF Nos. 14 and 18). Plaintiff, in response to the motions, filed an Amended Complaint, which remains his operative pleading. (ECF No. 24). All Defendants then each moved to dismiss the Amended Complaint. (ECF Nos. 26 and 28). Plaintiff filed an Omnibus Response (ECF No. 31). The Commonwealth Defendants' motion to dismiss is ripe for resolution.
This Report and Recommendation only addresses the motion to dismiss filed by the Commonwealth Defendants. The motion to dismiss filed by Defendant Courtney Hair LaRue is addressed in a separate Report and Recommendation.
B. Jurisdiction
The Court has federal question jurisdiction over the complaint as it asserts claims under 42 U.S.C. § 1983. See 28 U.S.C. § 1331. Venue is proper under 28 U.S.C. § 1391(b) as the Commonwealth Defendants Fiscus, Salvay, and Smith are residents within the territorial boundaries of the United States District Court for the Western District of Pennsylvania, 28 U.S.C. § 118(c), and all Defendants are residents of the Commonwealth of Pennsylvania.
Title 28 U.S.C. § 1391(b) provides that venue is proper “in any judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located.”
The factual background is drawn from the allegations of the Amended Complaint, publicly available documents pertaining to Plaintiff's underlying arrest, prosecution, and trial which are attached to Defendant Hair LaRue's Motion to Dismiss and have been adopted and incorporated by the Commonwealth Defendants in their motion to dismiss, and the factual allegations in the public record from Plaintiff's prior suit against the Commonwealth Defendants filed in this Court at Docket Number 2:18-cv-1297. Further, as Plaintiff is a prisoner appearing pro se, the Court will treat the additional factual allegations contained in his Response as though they were included in the complaint. Baker v. Younkin, 529 Fed.Appx. 114, 115 n.2 (3d Cir. 2013) (citing Lewis v. Att'y Gen. of U.S., 878 F.2d 714, 722 (3d Cir. 1989)).
Plaintiff raises several claims against the Commonwealth Defendants with respect to events which occurred at SCI-Fayette when a letter sent by Plaintiff was received in the Pennsylvania State Patrol Carlisle Station. It was believed that the letter was soaked with synthetic liquid K2.
Plaintiff was interviewed in a conference room at SCI-Fayette on January 18, 2018, by an FBI agent as well as Commonwealth Defendant Pennsylvania State Trooper John Boardman. Commonwealth Defendant Captain Frank Salvay was also present during the interview. At the conclusion of the interview, Commonwealth Defendant M.V. Smith had Plaintiff placed in a suicide smock and a “hard cell” where he remained for seven days, from January 18, 2018, until January 24, 2018. On January 29, 2018, Commonwealth Defendant Salvay issued Plaintiff a misconduct charging him with possession or use of a dangerous or controlled substance and unauthorized use of mail or telephone. (No. 2:18-cv-1297, ECF No. 85-4 at p. 1). On February 16, 2018, the Hearing Examiner, Commonwealth Defendant Fiscus, found probable cause to support the misconduct charges and found Plaintiff guilty of both misconduct charges, imposing a punishment of 180 days disciplinary custody effective January 18, 2018. (Id. at p. 2).
On December 16, 2019, Pennsylvania State Trooper John Boardman filed a Criminal Complaint with Affidavit of Probable Cause in the Court of Common Pleas of Cumberland County, Pennsylvania, stating, among other things, that Plaintiff, while incarcerated at SCI -Fayette, sent a letter marked “Legal Mail” to Trooper Masci with the PSP Carlisle and that soon after opening the letter, Trooper Masci began to suffer a reaction in which he felt tired and dizzy, and required medical attention. Several other PSP employees also required medical attention after reporting they were experiencing symptoms either after handling Plaintiff's mail or attending to Trooper Masci. See Police Criminal Complaint, Affidavit of Probable Cause. (ECF No. 26-1). The Criminal Complaint details the steps of the police investigation, which included investigative assistance by the FBI and the United States Postal Inspection Service. Id. The investigation included statements from Plaintiff's cellmate that Plaintiff had acquired paper laced with liquid K2 and Plaintiff had stated he was sending it to Trooper Masci. The Affidavit of Probable Cause states: “LEE admitted to sending the letter to Tpr. MASCI using paper that had liquid K2 on it. He acknowledged that he wrote the letter because he was frustrated and made a bad decision.” Id. at p. 4.
Based on the events set forth within the Affidavit of Probable Cause, the following criminal charges were filed against Plaintiff: five counts each of Weapons of Mass. Dest. - causing illness or injury; Weapons of Mass. Dest. - causing evacuation; Assault by Prisoner; and Simple Assault; nine counts of Aggravated Assault; seven counts of Recklessly Endangering Another Person; and one count each of Obstructing Administration of Law, Retaliation for Past Official Action; and Disorderly Conduct. See Criminal Docket MJ-09303-CR-404-2019 (ECF No. 26-2). On October 20, 2022, a jury returned a verdict of “Not Guilty” on all charges. (ECF No. 26-5).
Plaintiff alleges that each of the Commonwealth Defendants violated his constitutional rights. Specifically, he contends that:
(1) Hearing Examiner L. Fiscus violated his rights under the Eighth Amendment by finding him guilty of a misconduct without actual evidence, as the criminal proceedings had not concluded until October 2022; Amended Complaint, Statement of Claim, ¶ 1;
(2) Captain Frank Salvay violated his rights under the Sixth Amendment by issuing Plaintiff a misconduct, when Plaintiff was found not guilty of the accusations during his criminal trial; Id. ¶ 2;
(3) Lt. M. V. Smith violated his rights under the Eighth Amendment when he placed Plaintiff in a psychiatric observation cell in a smock as punishment for the allegations which led to his criminal charges; Id. ¶ 3; and
(4) Trooper John Boardman violated his rights under the Eighth Amendment by (i) filing criminal charges against him when “there was no substance found on the piece of paper Mr. Boardman claimed was laced” and (ii) refusing to return Plaintiff's personal property to him. Id. ¶ 4.
Because Plaintiff is proceeding pro se, his allegations, “however inartfully pleaded,” must be held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520-521 (1972). Moreover, under the liberal pleading rules, during the initial stages of litigation, a district court should construe all allegations in a complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997). 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, 2102 (10th Cir. 1996).
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1983). In order “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.' ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 556). “Conclusory allegations of liability are insufficient” to survive a motion to dismiss. Garrett v. Wexford Health, 938 F.3d 69, 92 (3d Cir. 2019) (quoting Iqbal, 556 U.S. at 678-79). To determine whether a complaint survives a motion to dismiss, a court identifies “the elements a plaintiff must plead to state a claim for relief,” disregards the allegations “that are no more than conclusions and thus not entitled to the assumption of truth,” and determines whether the remaining factual allegations “plausibly give rise to an entitlement to relief.” Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012). Thus, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). The factual and legal elements of a claim should be separated, with the court accepting all well-pleaded facts as true and disregarding all legal conclusions. Santiago v. Warminster Twp., 629 F.3d 121, 130-31 (3d Cir. 2010). Under this standard, civil complaints “must contain more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). A court in making this determination must ask “not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claim.” Twombly, 550 U.S. at 583 (quoting Scheuer v. Rhoads, 416 U.S. 232, 236 (1974) (internal quotations omitted)).
Under Rule 12(b)(6), the court must accept all well pleaded allegations as true and construe all reasonable inferences in favor of the nonmoving party. Doe v. Univ. of the Scis., 961 F.3d 203, 208 (3d Cir. 2020). A court may consider “the allegations contained in the complaint, exhibits attached to the complaint and matters of public record” as well as “undisputedly authentic document[s] that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document.” Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).
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 - whether or not 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). “However, we need not provide a plaintiff with leave to amend if amendment would be inequitable or futile.” Thompson v. Police Dep't of Philadelphia, 2011 WL 4835831, at *2 (E.D. Pa. Oct. 12, 2011) “Where a claim is frivolous, amendment is necessarily futile and, thus, leave to amend is not warranted. A claim is frivolous when it lacks an arguable basis in either law or in fact.” Id. (internal citation and quotation marks omitted).
In a Section 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).
In support of the Motion to Dismiss, the Commonwealth Defendants argue that (1) all claims asserted against the Commonwealth Defendants in their official capacities and for injunctive relief should be dismissed; (2) certain claims are barred by the doctrine of res judicata, and if not precluded by res judicata, are beyond the statute of limitations; (3) any claim related to deprivation of property should be dismissed; and (4) any claim for malicious prosecution should be dismissed. Plaintiff asks that the Court reject these arguments. Each of the Commonwealth Defendants' arguments will be addressed in turn.
1. Official Capacity Claims
The Commonwealth Defendants, all of whom are state employees, argue that dismissal of all claims asserted against them in their official capacity is warranted because Eleventh Amendment immunity bars such claims. Br. at 3. (ECF No. 29). Commonwealth Defendants Fiscus, Salvay, and Smith are employees of the Pennsylvania Department of Corrections and Commonwealth Defendant Boardman is an employee of the Commonwealth of Pennsylvania as a Pennsylvania State Trooper. Official capacity claims against the Commonwealth Defendants are indistinguishable from claims against the entity employing the officials. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985).
“[T]he Eleventh Amendment bars suits against a state and its agencies in federal court that seek monetary damages.” Id. And since suits against state officials acting in their official capacities are suits against the employing government agency, they are also barred by the Eleventh Amendment. Laskaris v. Thornburgh, 661 F.2d 23 (3d Cir. 1981) (Pennsylvania); Mt. Healthy City Bd. of Education v. Doyle, 429 U.S. 274 (1977) (state agencies); Edelman v. Jordan, 415 U.S. 651 (1974) (state employees acting in their official capacity). See also 42 Pa. Const. Stat. § 8521(b) (“Nothing contained in this subchapter [on actions against Commonwealth parties in civil actions and proceedings] shall be construed to waive the immunity of the Commonwealth from suit in Federal courts guaranteed by the Eleventh Amendment to the Constitution of the United States”).
Thus, to the extent Plaintiff seeks monetary damages against the Commonwealth Defendants in their official capacities, it is recommended these claims be dismissed with prejudice as they are barred under the Eleventh Amendment.
2. Request for Injunctive Relief
The law recognizes an exception to the Eleventh Amendment immunity for claims brought against state officials in their official capacities for prospective injunctive relief. This exception provides federal courts with authority to issue injunctions against state officers where there is evidence of ongoing violations of federal law and the injunction will afford a plaintiff prospective relief from the illegal state action. Ex parte Young, 209 U.S. 123, 159-60 (1908).
The events involving Commonwealth Defendants Fiscus, Salvay, and Smith occurred while Plaintiff was incarcerated at SCI-Fayette. These three Commonwealth Defendants are DOC employees working at SCI-Fayette. It is recommended that, to the extent Plaintiff is seeking injunctive relief against these three Commonwealth Defendants, such claims be dismissed with prejudice as moot because Plaintiff is no longer incarcerated at SCI-Fayette. Abdul-Akbar v. Watson, 4 F.3d 195, 206 (3d Cir. 1993) (stating that “[a]n inmate's transfer from the facility complained of generally moots the equitable and declaratory claims.”)
As to Commonwealth Defendant Boardman, there is no allegation in the Amended Complaint that Plaintiff would face any future actions by this Commonwealth Defendant. Thus, it is recommended that to the extent Plaintiff is seeking injunctive relief against Commonwealth Defendant Boardman, such claim be dismissed with prejudice.
3. Request for Declaratory Judgment
It also appears Plaintiff is seeking a declaratory judgment in the form of a declaration that all the Commonwealth Defendants violated his rights under the United States Constitution. Such a request is inappropriate because declaratory judgment is unavailable “solely to adjudicate past conduct” or to “proclaim that one party is liable to another.” Corliss v. O'Brien, 200 Fed.Appx. 80, 84 (3d Cir. 2006); see also Andela v. Administrative Off. of the U.S. Courts, 569 Fed.Appx. 80, 83 (3d Cir. 2014) (“Declaratory judgments are meant to define the legal rights and obligations of the parties in the anticipation of some future conduct.”). As Plaintiff essentially seeks a declaration that the past actions of the Commonwealth Defendants violated his rights in various respects, he is not entitled to declaratory relief. It is therefore, recommended, that Plaintiff's requests for declaratory relief be dismissed with prejudice.
Although res judicata is an affirmative defense, it can be raised on a motion to dismiss. Chilcott v. Erie Cty. Prison, 774 Fed.Appx. 99, 100 n.1 (3d Cir. 2019) (citing Adams v. Gould Inc., 739 F.2d 858, 80 n.14 (3d Cir. 1984)).
Plaintiff's claims here against Commonwealth Defendants Smith, Salvay, and Fiscus involve his conditions of confinement while he was incarcerated at SCI-Fayette and actions taken there by these three defendants. See Amended Complaint, at ¶¶ IV(1), (2), and (3). The claims arise from Plaintiff's placement in a Psychiatric Observation Cell and placed in a suicide smock by Commonwealth Defendant Smith on January 18, 2018; the issuance of an institutional misconduct by Commonwealth Defendant Salvay on January 29, 2018; and the later finding of guilt by Hearing Examiner Commonwealth Defendant Fiscus following a misconduct hearing on February 16, 2018.
The Commonwealth Defendants argue that because Plaintiff has presented these claims to this Court in a prior civil action, the claims must be dismissed based on the doctrine of res judicata. See Lee v. Janosko, et al, Civil Action No. 2:18-cv-1297 (W.D. Pa) (“prior suit”). Plaintiff states in response that,
the prior case (Lee v. Janosko, 2021) said case was dismissed without prejudice in the end due to the criminal proceedings in PA 2018-59958 which the Commonwealth does concede that there were criminal proceedings that did end October 20, 2022 in Mr. Lee's favor . . . As the entire case revolves around said criminal complaint the statue of limitations time started on 10/20/22 when the criminal proceedings ended which would mean the current instant case is not untimely and not barred by any doctrine since the previously identified case was dismissed without prejudice according to Federal Law the case may be refiled but does not have to be exactly the same.
Response, at ¶ 2 (quoted verbatim). Before turning to the merits, the undersigned notes that Plaintiff's argument is based on an incorrect statement. His prior suit in this Court was not dismissed without prejudice. Rather, summary judgment was granted in favor of the Commonwealth Defendants and judgment in their favor was entered. See Civil Action No. 2:18-cv-1297 (W.D. Pa), ECF Nos. 96, 97, and 98. Plaintiff's timely appeal to the Court of Appeals was dismissed for failure to pay the filing fee for the notice of appeal. (ECF No. 104). The undersigned now proceeds to address the Commonwealth Defendants' argument that the claims against Commonwealth Defendants Fiscus, Smith, and Salvay are barred by the doctrine of res judicata.
The doctrine of res judicata provides that a final judgment rendered by a court of competent jurisdiction, on the merits, “is conclusive as to the rights of the parties and their privies, and as to them constitutes an absolute bar to a subsequent action involving the same cause of action.” In re Weisbrod & Hess Corp., 129 F.2d 114, 116 (3d Cir. 1942). As explained by the United States Court of Appeals for the Third Circuit, the federal law of res judicata or claim preclusion involves a three-pronged test, and bars a second suit where “there has been (1) a final judgment on the merits in a prior suit involving (2) the same parties or their privies and (3) a subsequent suit based on the same cause of action.” Lubrizol Corp v. Exxon Corp., 929 F.2d 960, 963 (3d Cir. 1991). Res judicata protects defendants from “‘repetitious suits involving the same cause of action' once ‘a court of competent jurisdiction has entered a final judgment on the merits'” by precluding any further suit. Beasley v. Howard, 14 F.4th 226, 231 (3d Cir. 2021) (quoting United States v. Tohono O'Odham Nation, 563 U.S. 307, 315 (2011)). It “applies not only to claims actually litigated, but also to claims which could have been litigated during the first proceeding if they were part of the same cause of action.” Manu v. Nat'l City Bank of In., 471 Fed.Appx. 101, 105 (3d Cir. 2012) (quoting Balent v. City of Wilkes-Barre, 669 A.2d 309, 313 (Pa. 1995)). In this case, all three prongs of the Lubrizol test are met.
The first prong of the Lubrizol test is met. Plaintiff filed the prior suit in this Court on September 2018. Named as defendants were, among others, Lt. M.V. Smith, Captain F. Salvay, and L. Fiscus. By Memorandum Opinion and Order entered on March 3, 2021, the Court granted the motion for summary judgment filed by the Commonwealth Defendants, including Defendants Salvay, Fiscus, and Smith. See ECF No. Case No. 2:18-cv-1297, ECF Nos. 96 and 97; Lee v. Janosko, No. 2:18-cv-1297, 2021 WL 877761 (W.D.Pa.), appeal dismissed, 2021 WL 4298242 (3d Cir. 2021). Judgment in favor of the Commonwealth Defendants was entered that same day. (ECF No. 98).
The second prong of the Lubrizol test also is met. Donovon Lee was the plaintiff in the prior suit and Commonwealth Defendants Smith, Salvay, and Fiscus were named defendants in the prior suit.
Last, the third prong of the Lubrizol test is met as well. Our Court of Appeals has explained this prong as follows:
In Athlone, we noted that the term “ ‘cause of action' cannot be precisely defined, nor can a simple test be cited for use in determining what constitutes a cause of action for res judicata purposes.” Id. (quoting Donegal Steel Foundry Co. v. Accurate Prods. Co., 516 F.2d 583, 588 n. 10 (3d Cir. 1975)). Rather, we look toward the “essential similarity of the underlying events giving rise to the various legal claims.” Davis v. United States Steel Supply, 688 F.2d 166, 171 (3d Cir. 1982) (en banc), cert. denied, 460 U.S. 1014 (1983) . . . This principle is “in keeping with ‘[t]he present trend . . . in the direction of requiring that a plaintiff present in one suit all the claims for relief that he may have arising out of the same transaction or occurrence.' ” [United States v.] Athlone, 746 F.2d [977] 984 [(3d Cir. 1984)] (quoting 1B J. Moore & J. Wicker, Moore's Federal Practice ¶ 0.410[1], at 359 (2d ed.1983)).
In conducting this inquiry, we focus upon “whether the acts complained of were the same, whether the material facts alleged in each suit were the same, and whether the witnesses and documentation required to prove such allegations were the same.” Athlone, 746 F.2d at 984. A mere difference in the theory of recovery is not dispositive. Id. Thus, the fact that Lubrizol relies on a new theory of “reformation” will not prevent preclusion. In both suits the acts complained of, the material facts
alleged, and the witnesses and documentation required to prove the allegations are all the same.Lubrizol Corp. v. Exxon Corp., 929 F.2d at 963. It is, therefore, necessary to review the underlying events and allegations of the prior suit to determine whether this case is based on the same cause of action.
In the prior suit, Plaintiff alleged that Commonwealth Defendant M.V. Smith,
did knowingly and willingly have Mr. Lee placed in a suicide smock and a “hard cell” for seven days (from 1/18/18 - 1/24/81) without justifiable cause due to the fact that Mr. Lee had never been suicidal in action, thought, or word. The smock was used as a punishment and retaliation for PA2018-59958....All violations of the 8th amendment cruel and unusual punishment.
Case No. 2: 18-cv-1297, Amended Complaint, 3/11/2019, ¶ 3 (quoted verbatim) (ECF No. 41). In the instant case, in strikingly similar language, Plaintiff alleges that Commonwealth Defendant M.V. Smith,
The Court analyzed the claim under the Eighth Amendment and entered judgment in favor of Commonwealth Defendant Smith.
did knowingly and willingly on or about 1/18/2018 . . . place Mr. Lee in a PA DOC “POC” (Psychiatric Observation Cell) AKA a Hard Cell in a smock as a punishment for the allegations in CP-21-CR-0000338-2020 Cumberland County violating Mr. Lee's 8th Amendment right.
Amended Complaint, Stmt of Claim, ¶ 3 (quoted verbatim).
In the prior suit, Plaintiff alleged that Commonwealth Defendant Captain Salvay,
wrote Misconduct # CO92857 accusing Mr. Lee of admitting to sending a letter laced with liquid K-2 to a State Trooper at the Carlisle Barracks while PA2018-59958 was still under investigation and there was no outcome to the investigation at the time. All a violation of Mr. Lee's 6th amendment of due process.
Case No. 2: 18-cv-1297, Amended Complaint, 3/11/2019, ¶ 4 (quoted verbatim) (ECF No. 41). And that Hearing Examiner L. Fiscus on 2/16/2018,
did knowingly and willingly find Mr. Lee guilty of Misconduct # CO92857 without the Police incident # PA 2018-59958 investigation being completed which the
misconduct was for. This is a violation of Mr. Lee's 6th amendment right of Due Process. Also L. Fiscus did sentence Mr. Lee to 180 days on D.C. (Disciplinary Custody) status for the Misconduct even without proof that a crime actually occurred. This is a violation of Mr. Lee's 8th Amendment right to be free of cruel and unusual punishment.Case No. 2: 18-cv-1297, Amended Complaint, 3/11/2019, ¶ 5 (quoted verbatim) (ECF No. 41). In the instant case, again in strikingly similar language, Plaintiff alleges that Commonwealth Defendant Salvay,
did knowingly and willingly on or about 1/19/2018 around 1535 hours at SCI Fayette write Mr. Lee a Misconduct in conjunction to CP-21-CR-0000338-2020 Cumberland County in which on or about 10/20/2022 Mr. Lee was found Not Guilty of the accusations violating Mr. Lee's 6th amendment right.Case No. 1:22-cv-00365, Amended Complaint, Stmt of Claim, ¶ 2 (quoted verbatim), and that Commonwealth Defendant Fiscus, on or about 2/16/2018,
did knowingly and willingly find Mr. Lee guilty of a misconduct without actual evidence due to CP-21-CR-0000338-2020 not being concluded until on or about 10/20/2022 where Mr. Lee was found Not Guilty of the criminal actions the DOC and PSP accused him of violating Mr. Lee's 8th amendment right.Case No. 1:22-cv-00365, Amended Complaint, Stmt of Claim, ¶ 1 (quoted verbatim).
The Court analyzed both claims under the Sixth Amendment's due process clause and concluded internal disciplinary procedures within the DOC cannot give rise to a Sixth Amendment claim and entered judgment in favor of Commonwealth Defendants Salvay and Fiscus.
After comparing the two suits, the undersigned finds that the claims in this suit against Commonwealth Defendants Smith, Salvay, and Fiscus are based on the same causes of action as those in Plaintiff's prior suit: (1) the acts complained of and the demand for relief are the same; (2) the theory of recovery is the same; (3) the witnesses and documents necessary at trial are the same, and (4) the material facts alleged are the same. See Athlone, 746 F.2d at 984.
For these reasons, it is recommended that the claims against Commonwealth Defendants Smith, Salvay, and Fiscus be dismissed with prejudice for failure to state a claim as the claims against them have already been resolved through prior litigation and are therefore barred by the doctrine of res judicata. Amendment would be futile.
5. Statute of Limitations
Alternatively, Commonwealth Defendants Smith, Salvay, and Fiscus argue that to the extent the claims against them were not included in Plaintiff's prior civil action and are not foreclosed by the doctrine of res judicata, the claims should be dismissed as barred by the applicable statute of limitations. According to the Commonwealth Defendants, the allegations in the Amended Complaint against Commonwealth Defendants Smith, Salvay, and Fiscus arise from their actions which occurred in January and February 2018. Plaintiff responds that the statute of limitations did not commence until October 20, 2022, when the criminal proceedings against him concluded.
Because Section 1983 has no statute of limitations of its own, it has been established that Section 1983 claims borrow Pennsylvania's applicable personal injury two-year statute of limitations. Lake v. Arnold, 232 F.3d 360 (3d Cir. 2000). A claim accrues “when the plaintiff knew or should have known of the injury upon which [his] action is based.” Kach, 589 F.3d at 634 (internal quotation marks omitted). Giving Plaintiff the benefit of the prisoner mail box rule, this lawsuit was initiated on December 13, 2022. (ECF No. 6 at p. 14).
The undersigned finds that the events giving rise to the claims in this suit against Commonwealth Defendants Smith, Salvay, and Fiscus occurred in January and February 2018 and, as such, the claims are time barred by the applicable two-year statute of limitations. Therefore, it is recommended, in the alternative, that the claims against Commonwealth Defendants Smith, Salvay, and Fiscus be dismissed with prejudice for failure to state a claim as these claims are barred by the applicable two-year statute of limitations. Amendment would be futile.
Although not identified in the Amended Complaint, Plaintiff has enumerated in his Response the personal property which he alleges was seized and has not been returned to him. See Response at ¶ 5. (ECF No. 31).
Plaintiff also alleges that Commonwealth Defendant Boardman violated his Fifth, Eighth, and Fourteenth Amendments rights by refusing to return his property after the conclusion of his criminal case.
First, the undersigned notes that Plaintiff cannot pursue this deprivation claim under the Fifth Amendment. “[T]he due process clause under the Fifth Amendment only protects against federal governmental action and does not limit the actions of state officials.” Caldwell v. Beard, 324 Fed.Appx. 186, 189 (3d Cir. 2009) (citing Riley v. Camp, 130 F.3d 958, 972 n.19 (11th Cir. 1997)). In other words, a due process claim under the Fifth Amendment only applies to federal officials. See Bergdoll v. City of York, 515 Fed.Appx. 165, 170 (3d Cir. 2013) (citing Nguyen v. U.S. Catholic Conf., 719 F.2d 52, 54 (3d Cir. 1983)). As alleged in the Amended Complaint, Commonwealth Defendant Boardman is a State Trooper employed by the Commonwealth of Pennsylvania, and consequently, he is a state actor or official. Because he is not a federal actor, the Fifth Amendment's Due Process Clause is inapplicable to him.
Further, to the extent that Plaintiff is alleging that the deprivation or destruction of his personal property amounts to cruel and unusual punishment under the Eighth Amendment, the Court of Appeals for the Third Circuit has stated, “that the loss of property is not sufficiently serious to give rise to an Eighth Amendment claim.” Rancourt Little Mountain Woodell v. Wetzel, 2022 WL 17424287, *3 (3d Cir. 2002) (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994). Courts within the Third Circuit generally address such claims under the Due Process Clause of the Fourteenth Amendment.
But in this case, Plaintiff is foreclosed from pursuing any due process claim in this Court based on allegations of negligent or intentional deprivation of his property. The Supreme Court of the United States has held that neither negligent nor intentional deprivations of property violate the Due Process Clause if there is a meaningful post-deprivation remedy for the loss. Hudson v. Palmer, 468 U.S. 517, 533 (1984); Parratt v. Taylor, 451 U.S. 527, 530 (1981). Pennsylvania provides a meaning post-deprivation process to request the return of property seized by law enforcement through its Rules of Criminal Procedure. See Pa.R.Crim.P. 588(A). And the Court of Appeals for the Third Circuit has held that no cognizable due process claim exists because Rule 588(A) “provides a process to challenge the seizure of property and a protocol to request its return.” McKenna v. Portman, 528 Fed.Appx. 221, 224 (3d Cir. 2013).
Pa.R.Crim.P. 588(A) provides: “A person aggrieved by a search and seizure, whether or not executed pursuant to a warrant, may move for the return of the property on the ground that he or she is entitled to lawful possession thereof. Such motion shall be filed in the court of common pleas for the judicial district in which the property was seized.”
Here, Plaintiff claims that he “did attempt to have the Cumberland County Public Defenders' Office and/or the attorneys who represented Mr. Lee (Bradon Toomey and Maya Schacker both of the Cumberland County Public Defender's Office), go through the courts to get Mr. Lee's property returned yet said Attorneys seem to have failed to do so.... ” Response at p. 3 (ECF No. 31). It is unclear from the allegations of the Amended Complaint whether Plaintiff has pursued his available remedies through Pennsylvania Rule of Criminal Procedure 588(A). In any event, Plaintiff's allegations about the seizure and retention of his property fail to state a claim under the Due Process Clause of the Fourteenth Amendment as Pennsylvania has a meaningful post-deprivation remedy for the loss. Accordingly, it is recommended this claim be dismissed with prejudice for failure to state a claim and any amendment would be futile.
5. Malicious Prosecution
In the Amended Complaint, Plaintiff alleges,
John Boardman did knowingly and willingly on or about 2/4/2020 file charges against Mr. Lee in CP-21-CR-0000338-2020 even after he was informed by Federal labs and PA PSP Labs that there was no substance found on the piece of paper Mr. Boardman claimed was laced which led to the actions of M.V. Smith, Frank Salvay, L. Fiscus, and Courtney Hair-LaRue.
Amended Complaint, Statement of Claims, ¶ IV(4). Although not clear, it appears that Plaintiff is asserting a malicious prosecution claim against Commonwealth Defendant Boardman contending that he filed criminal charges against Plaintiff when he should not have.
In order to prevail on a Section 1983 malicious prosecution claim, a plaintiff must establish that: (1) the defendant initiated criminal proceedings; (2) the criminal proceeding ended in the plaintiff's favor; (3) the proceeding was initiated without probable cause; (4) the defendant acted maliciously or for a purpose other than bringing the plaintiff to justice; and (5) the plaintiff suffered a deprivation of liberty consistent with the concept of a seizure as a consequence of a legal proceedings. Estate of Smith v. Marasco, 318 F.3d 497, 521 (3d Cir. 2003). A malicious prosecution claim fails as a matter of law if a plaintiff has “not proferred evidence sufficient to create a triable issue of fact of as to all five prongs.” Domenech v. City of Philadelphia, 2009 WL 1109316, * 9 (E.D.Pa. 2009), aff'd, 373 Fed.Appx. 254 (3d Cir. 2010). The Commonwealth Defendants concede that Plaintiff can establish the first and second prongs. But they argue that Plaintiff cannot establish the third and critical prong - the lack of probable cause for the initiation of the criminal proceedings against him. “Probable cause is a complete defense to false-arrest and malicious prosecution claims.” Langford v. Gloucester Twp. Police Dep't, 787 Fed.Appx. 120, 122 (3d Cir. 2019).
The Affidavit of Probable Cause states that Plaintiff admitted to sending the letter, Plaintiff's cellmate told officers that Plaintiff knew the letter was contaminated and intentionally sent it, and there was physical evidence connecting Plaintiff to the letter.
Because the Commonwealth Defendants have adopted and incorporated the arguments made on behalf of Defendant Hair LaRue in her motion to dismiss, the undersigned has reviewed the publicly available documents attached to Defendant Hair LaRue's motion (ECF No. 26).
The criminal charges first were tested in a preliminary hearing before Magisterial District Judge Susan K. Day. Commonwealth Defendant Boardman testified that forensic testing had been done on the letter sent by Plaintiff, and the results showed there was no substance on it. He further testified that,
[t]he problem that they [PSP lab] state with, uh, synthetic liquid K-2 is that synthetics, the formula is constantly changing and if they don't have an example of that, then they cannot determine what that is and they don't even find it in many cases.
Transcript, Preliminary Hearing, 01/29/2020, at p. 9 (ECF No. 26-3, at p. 14). The magisterial district judge held the charges for court. Id. at p. 14 (ECF No. 26-3 at 19). See Zimmerman v. Corbett, Civ. No. 13-02788, 2015 WL 539783, at *5 (M.D. Pa. Feb. 10, 2015) (although a prior probable cause determination at a preliminary hearing may be very strong evidence in favor of a finding of probable cause, it need not be determinative at the motion to dismiss stage); Kline v. Hall, Civ. No. 12-1727, 2013 WL 1775061, at *5 (M.D. Pa. Apr. 25, 2013) (“[A] finding of probable cause at a preliminary hearing is only ‘weighty evidence' that there was probable cause; it is not conclusive.”)(citations omitted).
The criminal charges were again tested in the Court of Common Pleas when the trial court denied Plaintiff's Petition for Writ of Habeas Corpus. That court also found that probable cause existed. (ECF No. 26-4).
The undersigned finds that based on the objective facts known to Trooper Boardman, as stated in the Affidavit of Probable Cause, and Trooper Boardman's testimony adduced during the Preliminary Hearing, there was probable cause to support the criminal charges filed against Plaintiff. Thus, to the extent that Plaintiff is attempting to assert a claim for malicious prosecution against Commonwealth Defendant Boardman, it is recommended that such claim be dismissed as probable cause defeats the claim.
Moreover, even if probable cause were lacking, the undersigned agrees with Commonwealth Defendant Boardman that Plaintiff cannot meet the fifth requirement of a malicious prosecution claim as he cannot show a loss of liberty beyond simply showing an unlawful arrest. Because the claim requires a deprivation of liberty consistent with the notion of “seizure,” “[a] prisoner who is in custody when a criminal action is commenced against him cannot bring a malicious prosecution claim because the filing of criminal charges does not deprive him of liberty.” Gray v. Wittman, No. 1:19-cv-000125, 2020 WL 2104739, *4 (W.D.Pa 2020) (citing Jacobs v. City of Pittsburgh, No. 08-460, 2011 WL 1584869, at *4 (W.D.Pa. Feb. 18, 2011)). Here, because Plaintiff was incarcerated and committed to the custody of the DOC for unrelated charges at the time of Commonwealth Defendant Boardman's conduct, Plaintiff fails to state a deprivation of liberty sufficient to support a Section 1983 claim for malicious prosecution.
For all these reasons, it is recommended that Plaintiff's claim for malicious prosecution against Commonwealth Defendant Boardman be dismissed with prejudice for failure to state a claim and any amendment would be futile.
Because the undersigned finds that Plaintiff cannot meet two of the required five prongs to establish a malicious prosecution claim, it is not necessary to address Defendant's final argument that Plaintiff is also not able to show that Defendant Boardman acted with “malice.”
III. Conclusion
For the reasons stated above, it is recommended that the Motion to Dismiss filed by the Commonwealth Defendants be granted for failure to state a claim and all claims against them be dismissed with prejudice. It is further recommended that leave to amend be denied as futile.
Any party is permitted to file written specific Objections to this Report and Recommendation to the assigned United States District Judge. In accordance with 28 U.S.C. § 636(b)(1), Fed.R.Civ.P. 6(d) and 72(b)(2), and LCvR 72.D.2, Plaintiff, because he is a non-electronically registered party, must file written objections, if any, to this Report and Recommendation by February 5, 2024. The Commonwealth Defendants, because they are electronically registered parties, must file objections, if any, by February 2, 2024. The parties are cautioned that failure to file Objections within this timeframe “will waive the right to appeal.” Brightwell v. Lehman, 637 F.3d 187, 194 n.7 (3d Cir. 2011)(quoting Siers v. Morrash, 700 F.2d 113, 116 (3d Cir. 1983). See also EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir. 2017) (describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error).