Opinion
Civil Action 4:22-CV-00166
10-18-2022
JOSEPH LODUCA, Plaintiff, v. JOEL ZIMMERMAN, et al., Defendants
MARIANI, D.J.
REPORT AND RECOMMENDATION
William I. Arbuckle U.S. Magistrate Judge
I. INTRODUCTION
Joseph LoDuca (“Plaintiff”) pled nolo contendere in Snyder County, Pennsylvania to charges of possession of a controlled substance, terroristic threats (involving domestic violence), and simple assault. He was given a county jail sentence with credit for time served that allowed him to be paroled ten days after his plea. Eight months later he violated his parole. The judge revoked his earlier sentence and resentenced Plaintiff, this time giving him one to two years in state prison. Plaintiff is currently serving this sentence at SCI Mercer along with an unrelated felony drug conviction from Dauphin County. His Snyder County convictions are still on appeal in state court.
The standards for dismissal for failing to state a claim under 28 U.S.C. § 1915(e) are the same as under a 12(b)(6) motion, the court may consider matters of which it may take judicial notice under 28 U.S.C. §§ 1915(e) and 1915A and under 42 U.S.C. § 1997e(c).” Banks v. Cty. of Allegheny, 568 F.Supp.2d 579, 588 (W.D. Pa. 2008) (citing Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1385 n. 2 (3d Cir. 1994)). Therefore, I will take judicial notice of the State court criminal dockets associated with Plaintiff's civil case.
Pa State Court Docket CP-55-CR-0000309-2019, last accessed October 16, 2022.
Pa State Court Docket CP-55-CR-0000308-2019, last accessed October 16, 2022.
Pa Inmate Lookup, http://inmatelocator.cor.pa.gov/#/Result (last accessed October 16, 2022). Dauphin County Docket:
https://ujsportal.pacourts.us/Report/CpDocketSheet?docketNumber=CP-22-CR- 0001345-2021&dnh=JdYvRjJ5R1%2B%2FPY LqF4jK% 2BA%3 D%3D (last accessed October 17, 2022).
Superior Court Docket at:
https://ujsportal.pacourts.us/Report/PacDocketSheet?docketNumber=1552%20MD A%202021&dnh=%2B1UxtGC %2FMUJy2c F79 PWDtg% 3D%3D (last accessed October 17, 2022).
Believing that he is the victim in these events Mr. Loduca now attempts to sue those involved in prosecuting him, accusing them of RICO violations. As Defendants, Plaintiff names:
1. Trooper Joel Zimmerman;
2. District Attorney Michael Piecuch;
3. President Judge Hudock;
4. Senior Judge Sholley;
5. Probation Officer Colin Devanney; and
6. Clerk of Court Stephanie Wolf.
Plaintiff alleges that he has “been injured by a pattern of racketeering engaged in by the above captioned Defendants” for actions surrounding his arrest, criminal prosecution, sentencing, and resentencing. (Doc. 1).
Plaintiff has been granted leave to proceed in forma pauperis. (Doc. 21). Because he is proceeding in forma pauperis, Plaintiff is subject to the screening provisions in 28 U.S.C. § 1915(e).
After reviewing Plaintiff's Complaint, (Doc. 1), I conclude that it fails to state a claim upon which relief may be granted and is frivolous. Accordingly, for the reasons explained in this Report, it will be RECOMMENDED that:
(1) Plaintiff's Complaint (Doc. 1) be DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii) without leave to amend, and without prejudice to:
(a) Plaintiff refiling his Federal RICO claim in the event his conviction is overturned; and
(b) Plaintiff filing any state law claims in state court.
(2) The Clerk of Court be DIRECTED to close this case.
II. LEGAL STANDARD
The screening procedures set forth in the statute apply to in forma pauperis complaints filed by prisoners and non-prisoners alike. Under this statute, the Court is required to dismiss any action that is frivolous or malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief against a defendant who is immune from such relief. There is no constitutional right to the expenditure of public funds and the valuable time of federal courts to prosecute an action which is totally without merit.
See Atamian v. Burns, 236 Fed.Appx. 753, 755 (3d Cir. 2007).
See Collins v. Cundy, 603 F.2d 825, 828 (10th Cir. 1979).
This court has a statutory obligation to conduct a preliminary review of pro se complaints brought by litigants given leave to proceed in forma pauperis. Specifically, the Court is obliged to review the complaint in accordance with 28 U.S.C § 1915(e)(2), which provides, in pertinent part:
(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that:
(B) the action or appeal -
(i) is frivolous or malicious
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief.
In performing this mandatory screening function, the Court applies the same standard that is used to evaluate motions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, which provides that a complaint should be dismissed for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6).
A complaint filed by a pro se litigant is to be liberally construed and ‘”however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'” Nevertheless, “pro se litigants still must allege sufficient facts in their complaints to support a claim.” Thus, a well-pleaded complaint must contain more than mere legal labels and conclusions. Even a pro se complaint must recite factual allegations that are enough to raise the Plaintiff's claimed right to relief beyond the level of mere speculation. It must set forth in a “short and plain” statement of a cause of action.
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
Mala v. Crown Bray Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013).
III. BACKGROUND AND PROCEDURAL HISTORY
This pro se, in forma pauperis action began on February 1, 2022 when Plaintiff lodged this Complaint alleging injuries resulting from the violation of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968 . (“RICO) (Doc. 1). As Defendants, Plaintiff names:
1. Trooper Joel Zimmerman (“Defendant Zimmerman”);
2. District Attorney Michael Piecuch (“Defendant Piecuch”);
3. President Judge Hudock (“Defendant President Judge Hudock”);
4. Senior Judge Sholley (“Defendant Judge Sholley”);
5. Probation Officer Colin Devanney (“Defendant Devanney”); and
6. Clerk of Court Stephanie Wolf (“Defendant Wolf”).
Plaintiff states that his Complaint “incorporate[s] [ ] prior filing in U.S. District Court case 4:21-CV-00426-WIA, which Plaintiff asked to withdraw and Judge removed from docket without prejudice.” (Doc. 1, p. 4). To the extent that Plaintiff wanted to incorporate any facts or claims from that Complaint into this Complaint, he would have needed to write them in this Complaint. This is so because Plaintiff's Complaint must comply with Federal Rule of Civil Procedure 8, the general idea of which is “to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.”” This allows the defendant to “respond on the merits.” Defendants should not be required to investigate other cases in order to figure out what the claims are against them and what facts Plaintiff is attempting to use to bring those claims.
LoDuca v. Zimmerman, et al, 4:21-cv-00426-WIA. In that case Mr. LoDuca named as defendants a police officer, the Clerk of Court, the District Attorney, and a probation officer, all from Snyder County, alleging a conspiracy to violate his civil rights. The conduct of the defendants described in the complaint mirror those in the criminal cases complained of in the instant case. In screening that case (Doc. 7) I noted that Mr. LoDuca appeared to be trying to file criminal charges against these individuals, a course of action he could not successfully pursue in this court. After receiving the screening order Mr. LoDuca moved to voluntarily dismiss the case without prejudice (Doc. 8). That request was granted (Doc. 9) and the case was closed.
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
Garrett v. Wexford Health, 938 F.3d 69, 94 (3d Cir. 2019).
Tillio v. Spiess, 44 Fed.Appx. 109, 110 (3d Cr. 2011); Binsack v. Lackawanna County Prison, 438 Fed.Appx. 158, 160 (3d Cir. 2011).
In the instant case Plaintiff alleges that on June 8, 2019, Defendant Zimmerman entered his home, began searching it without a warrant, and forced Plaintiff to lie on the ground at gunpoint. (Doc. 1, p. 4.) Three weeks later Defendant Zimmerman was then threatening Plaintiff not to go home and Plaintiff was forced to give an alternate address when mailing his Complaint. Id. It is unclear to the Court what complaint this is referring to or why it is relevant.
On July 9, 2019, Defendant Zimmerman returned to Plaintiff's home and arrested Plaintiff. Id. Plaintiff alleges he was injured during the arrest. Id. Defendant Zimmerman then allegedly searched Plaintiff's friend's car “without permission,” taking the keys from Plaintiff's kitchen cabinet and driving the car into Plaintiff's garage, again all “without permission ” Id. How this search of a friend's car harmed Plaintiff is not disclosed.
At his arraignment, according to this Complaint, Defendant Zimmerman ground the handcuffs into Plaintiff's wrists and lied to Judge Reed about his “ties to the community and the severity of the alleged crimes.” (Doc. 1, p.5). Plaintiff alleges Defendant Zimmerman also lied “to reporter of Daily Item, to slander, defame and influence a jury pool.” Id.
While he was incarcerated, “Plaintiff requested a PFA modification multiple times” so that he could have “access to his personal finances, to post bail and hire an attorney.” (Doc. 1, ¶ 2). Plaintiff alleges Defendant Judge Sholley denied him “these constitutional rights.” Id. Plaintiff does not explain how the existence of a PFA would limit his financial access.
Plaintiff next alleges that one of the victims of his alleged crimes was interviewed by Defendant Piecuch and told the officer to “drop the charges” against Plaintiff. (Doc. 1, ¶ 3). Defendant Piecuch then allegedly concealed material evidence and told the victim that he would “drop[] the hammer on Plaintiff first chance he gets.” Id. Plaintiff believes this “amounts to false imprisonment by malicious-selective prosecution.” Id. Plaintiff does not explain what “material evidence” was concealed, who concealed it, or who it was concealed from.
On January 13, 2020, Plaintiff admits he took a plea agreement and Defendant President Judge Hudock accepted it. (Doc. 1, ¶ 4). Plaintiff states this is reflected on the docket and plea colloquy. Id. Plaintiff alleges that on January 22, 2020, Defendant President Judge Hudock amended the plea agreement “to include a statutorily unauthorized sentence. An illegal sentence.” Id.
Next, around July 15, 2020, Defendant Devanney lied to “Judge” (Plaintiff does not identify which Judge) when Devanney applied for a bench warrant. (Doc. 1, ¶ 5). Plaintiff alleges this was brought to the attention of Defendant Piecuch “including statements made by other inmates and correctional officers to (probably about) Devanney lying.” Id.
On August 18, 2020, Plaintiff was in the custody of the “Snyder County Warden and Deputy Warden for bench warrant of absconding.” Id. Plaintiff made multiple requests “verbally and [by] request slips to my liberty interest being violated.” Id. Warden Cooper and Deputy Warden Frampton used “a subterfuge that probation violators have no liberty interest.” Id.
Plaintiff alleges that, despite “knowing the provisions for county parole violator in Title 61” Defendant Judge Sholley ignored these provisions and “resentenced Plaintiff to a state sentence” on September 11, 2020. (Doc. 1, ¶ 6).
The Court dockets cited earlier confirm that LoDuca was resentenced and sent to state prison on this date.
Plaintiff “filed with the clerk” on October 26, 2020, “advising the court of the illegal sentence” and never received an answer. (Doc. 1, ¶ 7). At some time during December of 2020 Plaintiff filed a notice of appeal and in February 2021, Defendant Hudock issued his opinion, allegedly wrongly stating that Plaintiff “didn't submit a concise statement of matters ....” (Doc. 1, ¶ 8).
On September 1, 2021, Plaintiff filed a “motion for time credit.” (Doc. 1, ¶ 9). On November 15, 2021, Plaintiff alleges Defendant Hudock ignored “provisions on granting credit for time previously served as outlined in Title 42 section 9760, 1, 2.” Id. at ¶ 10. Defendant Piecuch apparently “calling this double time on the record in concert with Judge Hudock is a continued culture of official oppression.” Id. Defendant Hudock denied Plaintiff's motion that day. Id.
On November 29, 2021, Defendant Wolf ignored Plaintiff's civil complaint. (Doc. 1, ¶ 11). The “first time” Defendant Wolf allegedly “stamped and filed, then crossed out and sent back to me,” telling Plaintiff that he had not “follow[ed] the rules of civil procedure.” Id. On December 10, 2021, Plaintiff had “the exact same civil complaint docketed” in a different court, “the Commonwealth Court in Harrisburg, PA.” (Doc. 1, ¶ 12). That court apparently “physically transferred” Plaintiff's case to “Snyder County and by order told Snyder County to take appropriate action.” (Doc. 1, ¶ 13). Plaintiff states that “as of the filing of this Complaint no action has been taken by Snyder County Judicial Authorities. (Jan. 25, 2022).” (Doc. 1, ¶ 14).
Plaintiff's Complaint then has a page headed “Authorities” and spends the next five pages citing case law and statutes apparently trying to generally make out the elements of a RICO claim.
Plaintiff states that his injuries are his “reputational value and monthly monetary income.” (Doc. 1, p. 9). As relief, Plaintiff requests damages: “a) In the amount of $1 million U.S. Dollars (Jointly); b) Whatever else this Court deems appropriate, proper and equitable.” Id. at p. 13. Plaintiff also asks the Court to “further fashion appropriate remedies against the Defendants as are available from the Racketeer Influenced Corrupt Organizations Act, 28 U.S.C. 1963 et. seq and any other appropriate statutory, common law, or inherent authority.” Id. at p. 14.
IV. ANALYSIS
A. Introduction
When a RICO claim is not properly pleaded, and it also implicates Heck, the court need not describe the substantive defects. Plaintiff's RICO claim is Heck barred. Additionally, Plaintiff fails to properly plead any pendant state law claims.
Swan v. Barbadoro, 520 F.3d 24, 26 (1st Cir. 2008).
B. Plaintiff's RICO Claim Is HECK Barred
Plaintiff is barred from bringing the RICO claim he attempts to plead. In Heck v. Humphrey, the Supreme Court held that:
in order to recover damages . . . 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 [a] determination, or called into question by a federal court's issuance of a writ of habeas corpus . . . . Thus, when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.512 U.S. 477, 486-87 (1994). In Wilkinson v. Dotson, the Supreme Court reaffirmed this 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.”
544 U.S. 74, 81-82 (2005) (emphasis in original).
Plaintiff does not make any references or claims to § 1983 in his Complaint, and only makes a claim against Defendants under RICO. (Doc. 1). However, “[t]he rationale of Heck applies to RICO and conspiracy claims.”Moreover, “Heck's bar cannot be circumvented by substituting a supposed RICO action for . . . [42 U.S.C. § 1983] claims ineffectually designed for the same purpose.”
Franco v. City & Cty. of San Francisco, No. C 10-04768 WHA, 2012 WL 3010953, at *3 (N.D. Cal. July 23, 2012); see also Gardner v. City of Philadelphia, Civ. A. No. 20-CV-4865, 2020 WL 6870714, at *3 (E.D. Pa. Nov. 23, 2020), motion for relieffrom judgment denied, Civ. A. No. CV 20-4865, 2021 WL 3885139 (E.D. Pa. Aug. 30, 2021).
Swan, 520 F.3d at 26; see Gardner, 2020 WL 6871714 at *3.
The Heck bar applies to a RICO action and “[a] state prisoner's section 1983 action is barred, no matter the relief sought, if success in that action would necessarily demonstrate the invalidity of his conviction.” It follows that a state prisoner's RICO action would likewise be barred. As such it does not matter that Plaintiff is not attempting to directly challenge his conviction through his RICO claim. His RICO claim is still barred because if he were successful, it would “necessarily imply the invalidity of his conviction and sentence.”
Perez v. Georgelis, 351 Fed.Appx. 788, 790 (3d Cir. 2009) (citing Wilkinson, 351 Fed.Appx. at 81-82).
Heck, 512 U.S. at 486-87; see also Gardner, 2020 WL 6871714 at *3.
Here, Plaintiff's RICO claims revolve around his arrest, the charges apparently brought from that arrest, the criminal proceedings, his conviction, his sentencing, and his post-sentencing attempts to file a state civil complaint. (Doc. 1). In his attempt to prove his RICO claim, Plaintiff alleges there was an illegal search of his home and his friend's car, that Defendant Owens lied to Judge Reed, that he was denied constitutional rights, that material evidence was concealed by Defendant Piecuch, that he was given an illegal sentence, that his “liberty interest” was being violated, that he was illegally resentenced and denied credit for time served and that his attempt to bring a civil complaint was ignored, all of which were apparently a RICO conspiracy by the Defendants against Plaintiff. Id. at p. 4-8.
Plaintiff apparently attempts to bring a claim under 18 U.S.C § 1964(d), which provides “it shall be unlawful for any person to conspire to violate any of the provisions (a), (b), or (c) of this section.” In the “authorities” section of his Complaint where Plaintiff seemingly attempts to lay out the elements of a RICO claim Plaintiff details “all that is necessary for a RICO conspiracy . . .” (Doc. 1, p.9) and has a section titled “Conspiracy.” (Doc. 1, p. 13).
If Plaintiff could successfully use these allegations to establish that the Defendants acted illegally and violated the RICO statute through a conspiracy it would “imply the invalidity of his conviction[,] [] sentence,” and resentencing. Thus, Plaintiff is not able to pursue this claim unless he can “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 [a] determination, or called into question by a federal court's issuance of a writ of habeas corpus . . . .” Plaintiff's claim is therefore subject to dismissal. Id.
Heck, 512 U.S. at 486-87.
Id.
Plaintiff offers no evidence that his conviction has been invalidated.
C. Plaintiff Fails to State Any State Law Claims
In his Complaint Plaintiff states that “having both Federal RICO claim and related state law claims that arise from a common nucleus of operative fact confers pendent jurisdiction upon the federal court.” (Doc. 1, p. 3). However, the Court cannot find the state law claims Plaintiff refers to.
Plaintiff states that “this case arises pursuant to 18 U.S.C. 1961 et seq. [sic]” but never mentions what if any state law claims he is trying to prosecute or where they arise. Plaintiff alleges that “[Defendant] Zimmerman lied to reporter of Daily Item, to slander, defame and influence a jury pool.” (Doc. 1, p. 5). It is unclear to the Court whether this is Plaintiff's attempt to bring a state defamation claim against Defendant Zimmerman. Plaintiff is silent on this issue for the rest of his Complaint and does not begin to adequately plead a defamation claim with this one sentence conclusion. Plaintiff also alleges at one point that Defendant Piecuch's actions “amount[] to false imprisonment by malicious-selective prosecution.” Id. But again, it is not clear to the Court whether Plaintiff is attempting to assert a state law claim. He does not mention anything about the DA's actions amounting to malicious or selective prosecution again. As with the defamation claim, Plaintiff does not begin to adequately plead a malicious prosecution claim with this one sentence conclusion. Plaintiff also cites to the Pennsylvania Criminal Code “18 Pa.C.S. §5301 - abuse of office,” but Plaintiff cannot bring criminal charges in this Court. (Doc. 1, ¶ 10).
See Mikhail v. Kahn, 991 F.Supp.2d 596, 636-39 (E.D. Pa. 2014), aff'd, 572 Fed.Appx. 68 (3d Cir. 2014).
D. Any Amendment Would Be Futile
If a complaint is subject to dismissal for failure to state a claim, “a district court must permit a curative amendment unless such an amendment would be inequitable or futile.” Dismissals of frivolous claims, however, do not require leave to amend.
Phillips v. County of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008).
Grayson v. Mayview State Hosp., 293 F.3d 103, 112-13 (3d Cir. 2002).
“[A] complaint . . . is frivolous where it lacks an arguable basis either in law or in fact.” Here, Plaintiff's claim is Heck barred. It also appears that many of the putative Defendants would be entitled to immunity. Plaintiff does not allege and it appears cannot allege that his conviction has been favorably terminated. Therefore Plaintiff's RICO claim is without an arguable basis in law.
Neitzke v. Williams, 490 U.S. 319, 325 (1989); see Ransome v. Anhalt, No. 20-2609, 2022 WL 964003, at *1 (3d Cir. Mar. 20, 2022).
While Plaintiff could, theoretically, try to amend his Complaint to plead state law claims, this Court would not exercise supplemental jurisdiction over any such claims. “District courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if -- . . . (3) the district court has dismissed all claims over which it has original jurisdiction ....” 28 U.S.C. §1367(c)(3). This Court would have original jurisdiction over a Federal RICO claim, but it is recommended that the RICO claim be dismissed. With that dismissal this Court can and should decline to exercise supplemental jurisdiction over any of his state law claims.
V. RECCOMENDATION
After reviewing Plaintiff's pleading, the Court finds that he has not alleged a legal claim upon which relief can be granted, the claims are frivolous, and granting leave to amend would be futile. Accordingly, it is RECOMMENDED that:
(1) Plaintiff's Complaint (Doc. 1) be DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B) as frivolous and failing to state a claim, and without prejudice to:
(a) Plaintiff refiling his Federal RICO claim in the event his conviction is overturned; and
(b) Plaintiff filing any state law claims in state court.
(2) The Clerk of Court be DIRECTED to close this case.
NOTICE OF LOCAL RULE 72.3
NOTICE IS HEREBY GIVEN that 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)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions.