Opinion
Case No. 18-cv-139 (Erie)
07-26-2019
MICHAEL A. LUNA, Plaintiff v. PTLM. ALLISON #442, PTLM. EDMONDS #431, PTLA. FATICA #461, and PTLM. EICHER #414
RICHARD A. LANZILLO UNITED STATES MAGISTRATE JUDGE
SUSAN PARADISE BAXTER UNITED STATES DISTRICT JUDGE REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION TO DISMSIS
[ECF NO. 27] I. Recommendation
It is respectfully recommended that Defendants' motion to dismiss Plaintiff's Complaint pursuant to Fed. R. Civ. Pro. 12(b)(6) [ECF No. 27], be GRANTED. II. Report
A. Introduction
On May 24, 2018, Plaintiff Michael Luna ("Luna"), a pro se litigant currently incarcerated at the State Correctional Institution at Mercer ("SCI Mercer"), commenced this action against City of Erie Police Officers Allison, Edmonds, Fatica, and Eicher for civil rights violation under 42 U.S.C. §1983. ECF No. 12. Presently pending before the Court is Defendants' motion to dismiss Luna's Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. ECF No. 27.
Luna did not provide a response in opposition to the Defendant's motion to dismiss. On April 2, 2019, the Court ordered that he show cause as to why he did not file a response. Luna did not provide a response to the show cause order. ECF No. 31.
B. Procedural History
On May 16, 2018, Luna filed his initial complaint along with a motion for leave to proceed in forma pauperis. ECF No. 1. The Court determined that Luna did not plead enough facts regarding the actions of each Defendant and ordered him to file an amended complaint. ECF No. 3. On May 27, 2018, Luna filed an Amended Complaint. Based on this complaint, the Court granted Luna in forma pauperis ("IFP") status. Upon granting IFP status, the Clerk of Court combined both filings (ECF No. 1-1 and ECF No. 7) and docketed them as a single pleading with one attachment. ECF No. 12. That is the operative pleading for purposes of the Defendants' Motion to Dismiss.
C. The Complaint
Luna's Complaint is extremely sparse in terms of the facts underlying his alleged claims. Both the Complaint and accompanying attachment are short on detail, making it difficult to form a complete picture of what Luna claims happened to him on August 6, 2017, which Defendants took what action or actions against him (and when they did so), and exactly what led Luna to file this action. The following facts, which the Court assumes to be true for purposes of resolving this Motion, are taken directly from the Complaint. Luna alleges that
On or about August 6, 2017 I Michael A. Luna was illegally arbitrarily arrested, beat up, tazed [sic] and robbed from said defendants. As well as forced to a strip search, and thretend [sic] with a cavity search. After all this, I was incarcerated unlawfully, and with all disregard of due process of law.ECF No. 12, p. 1. He faults the Defendants for not getting "proper indictments, warrants and such things." ECF No. 12-1, p. 1. Luna identifies these actions as violations of his right to due process. Id. He further claims that the Defendants "stripped me naked humiliated me and forced me to sit in the holding cell in my underwear for hours." Id. Finally, he states that his motorcycle was "run over by the police vehicle" and that he was "robbed" of a sum of money. Id.
Despite this lack of specific facts, the Court should construe Luna's Complaint as raising the following claims:
1. A claim of illegal arrest under the Fourth Amendment (lack of proper warrants, indictments and "such things");See ECF No. 12. Luna mentions "federal question for civil right infringement" as a basis for this Court's jurisdiction, but does not mention 42 U.S.C. § 1983 or any specific constitutional provision. A liberal reading of his pleading requires the Court to construe his Complaint as alleging civil rights violations under 42 U.S.C. § 1983. See, e.g., Mack v. Salameh, 2016 WL 878124, at *1 n.8 (March 8, 2016).
2. A claim of unlawful search and seizure under the Fourth Amendment (the strip search and threatened cavity search);
3. A claim of excessive force (the alleged beating and use of a taser);
4. A due process claim relating to deprivation of personal property (his money and motorcycle)
In light of this construction, the Court has subject matter jurisdiction under 28 U.S.C. §§ 1331, 1343(a)(3).
Luna's Complaint omits any reference to his underlying criminal conviction, of which the Court may take judicial notice. See In re Congoleum Corp., 426 F.3d 675, 678 n. 2 (3d Cir. 2005) ("We take judicial notice of the state court proceedings insofar as they are relevant here."); Furnari v. Warden, Allenwood Federal Correctional Inst., 218 F.3d 250, 255 (3d Cir. 2000). On August 16, 2018, Luna was found guilty of: (1) felony manufacture, delivery or possession with intent to manufacture or deliver, (2) misdemeanor intentional possession of a controlled substance not registered, (3) misdemeanor intentional possession of a controlled substance not registered, (4) misdemeanor intentional possession of a controlled substance not registered, (5) misdemeanor use or possession of drug paraphernalia, (6) felony 3 fleeing or attempting to elude officer, (7) misdemeanor 2 recklessly endangering another person, (8) summary driving while license suspended, and (9) summary driving with no rear lights. After he was sentenced on October 1, 2018, Luna did not appeal his convictions.
D. Standard of Review
"In deciding a Rule 12(b)(6) motion, a court . . . consider[s] only the complaint, exhibits attached to the complaint, [and] matters of public record" and "accepts as true all [factual] allegations in the complaint and all reasonable inferences that can be drawn from them after construing them in the light most favorable to the nonmovant." Hartig Drug Inc. v. Senju Pharmaceutical Co. Ltd., 836 F.3d 261, 268 (3d Cir. 2016). If the court ultimately determines that the plaintiff "may be entitled to relief under any reasonable reading of the complaint," then a defendant's Rule 12(b)(6) motion to dismiss must be denied. See Mayer v. Belichick, 605 F.3d 223, 229 (3d Cir. 2010).
At the same time, a plaintiff's complaint must contain more than mere conclusory statements or the "formulaic recitation of the elements of a cause of action." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 550 (2007). Indeed, "[i]n order to withstand a motion to dismiss, 'a complaint's [f]actual allegations must be enough to raise a right to relief above the speculative level.'" Belichick at 229 (quoting Twombly at 555 & n.3). In other words, "[t]he pleading must contain sufficient factual allegations so as to state a facially plausible claim for relief." Id. at 230. "A claim possesses such plausibility '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 Ashcroft v. Iqbal, 556 U.S. 662 (2009)). Thus, as the Third Circuit outlined in Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012), in order "[t]o determine whether a complaint meets the pleading standard, [the court's] analysis unfolds in three steps:"
First, we outline the demands a plaintiff must plead to state a claim for relief. Next, we peel away those allegations that are no more than conclusions and thus not entitled to the assumption of truth. Finally, we look for well-pled factual allegations, assume their veracity, and then "determine whether they plausibly give rise to an entitlement of relief." This last step is "a context specific task that requires the reviewing court to draw on its judicial experience and common sense."Id. (quoting Iqbal at 679).
Pro se pleadings are construed more liberally than pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-521 (1972). Notwithstanding this liberality, pro se pleaders 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).
E. Discussion
The Defendants move to dismiss Luna's claims, arguing that some of his claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994), and that Luna failed to state a plausible claim or provide enough facts to allow the Defendants to properly prepare a defense. See ECF No. 28. The Court will turn first to the applicability of the Heck bar to Luna's allegations.
1. The Fourth Amendment Claims
Luna seeks to hold defendants liable under §1983 for numerous violations of the Fourth Amendment, including an alleged unlawful search and seizure and unreasonable strip search. Luna alleges that the Defendants "did not get proper warrants" which, if true, might violate the Fourth Amendment. ECF No. 12-1. See Ickes v. Grassmeyer, 30 F.Supp.3d 375, 385 (W.D. Pa. 2014) ("[plaintiff] was no doubt "seized" when he was placed under arrest.") The constitutionality of the seizures alleged by Luna depends on whether they were "reasonable." Thompson v. Wagner, 631 F.Supp.2d 664, 672 (W.D. Pa. 2008).
The Defendants argue that—to the extent that Luna claims unlawful seizure—his claims are barred by Heck. ECF No. 28. The rule of Heck v. Humphrey states that "a plaintiff may not challenge the constitutionality of his conviction or sentence in a § 1983 action unless he can demonstrate that the prior criminal proceeding terminated in his favor." Deemer v. Beard, 557 Fed Appx. 162, 164 (3d Cir. 2014). See also Gilles v. Davis, 427 F.3d 197, 208-09 (3d Cir. 2005). "The purpose of [Heck's] favorable termination requirement is to avoid 'the possibility of the claimant [sic] succeeding in the tort action after having been convicted in the underlying criminal prosecution, in contravention of a strong judicial policy against the creation of two conflicting resolutions arising out of the same or identical transaction.'" Bronowicz v. Allegheny City, 804 F.3d 338 (3d Cir. 2015) (quoting Heck, 512 U.S. at 484). The application of Heck requires the Court to "carefully consider the relationship between a specific §1983 claim and the underlying conviction or sentence." Willkinson v. Dotson, 544 U.S. 74, 80-84 (2005). The Defendants argue that because Luna was "arrested, found guilty, and sentenced and never appealed his conviction" any judgment in favor of Luna on his Fourth Amendment search and seizure claims would necessarily imply the invalidity of his criminal conviction. ECF No. 28.
"In a case where the only evidence for conviction was obtained pursuant to an arrest, recovery in a civil case based on false arrest would necessarily impugn any conviction resulting from the use of that evidence." Gibson v. Superintendent, 411 F.3d 427, 452 (3d Cir. 2005) (holding that a determination whether Heck applies to a Fourth Amendment claim requires a case-by-case fact-based inquiry) (citing Covington v. City of New York, 171 F.3d 117, 123 (2d Cir. 1999); see also Rosembert v. Borough of E. Lansdowne, 14 F. Supp. 3d 631, 640-41 (E.D. Pa. 2014) (barring a plaintiff's Fourth Amendment claims under Heck because the only evidence supporting the charges was acquired as a result of the alleged unlawful search and false arrest of the plaintiff).
Here, it cannot be disputed that Luna was convicted of felonies, misdemeanors, and summary offenses as a result of his arrest on August 6, 2017, the date referenced in his Complaint. See ECF No. 12, p. 1. There is no evidence that these convictions were reversed on appeal or otherwise invalidated. Since Luna did not successfully appeal, the Court must consider "whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence, if not, the action may proceed." Heck, 512 U.S. at 484. In the present case, Luna cannot challenge whether the defendant officers had probable cause to arrest him without also implying the invalidity of his later conviction. See e.g., Piazza v. Lakkis, 2012 WL 2007112 at *6 (M.D. Pa. June 5, 2012) (finding that a § 1983 claim of unlawful arrest is invalidated by an underlying conviction of a summary offense); Hayhurst v. Upper Makefield Twp., 2007 WL 1795682, at *8 (E.D. Pa. June 20, 2007) (holding that Heck barred the plaintiff's false arrest claim where "[t]he same disputed facts that [she] contends were insufficient to establish probable cause for her arrest ... [were] the same facts that formed the basis for her disorderly conduct conviction"). See also James v. York Cnty. Police Dep't, 160 Fed. Appx. 126, 133-34 (3d Cir. 2006) (holding that Heck barred a 1983 claim of unlawful search and seizure where "arrest and conviction were based on the evidence gathered" in the allegedly illegal search and seizure). The Court concludes that Luna is precluded from bringing a claim of unlawful search and seizure as it relates to his arrest on August 6, 2017. Therefore, this claim should be dismissed with prejudice as any amendment would be futile.
Luna's claim that the Defendants "stripped him naked and humiliated him" may not be barred by Heck. ECF No. 12-1. Heck does not bar claims where there is "independent evidence upon which a conviction could be obtained that was not in any way tainted by the unlawful arrest." Covington v. City of New York, 171 F.3d 117, 123 (2d Cir. 1999); Heck, 512 U.S. at 487 n.7 ("Because of doctrines like independent source and inevitable discovery, and especially harmless error, such a § 1983 action, even if successful, would not necessarily imply that the plaintiff's conviction was unlawful."); see also Rosembert v. Borough of E. Lansdowne, 14 F. Supp.3d 631, 640-41 (E.D. Pa. 2014) (barring a plaintiff's Fourth Amendment claims under Heck because the only evidence supporting the charges was acquired as a result of the alleged unlawful search and false arrest of the plaintiff). Luna makes no factual allegations regarding the nature of this strip search, where it was conducted, and who was present. It is not clear from Luna's assertions whether this claim is subject to the Heck bar. The Court simply cannot determine whether this particular search was conducted as part of his arrest.
And, even if the Court could determine from the Amended Complaint that Heck does not bar this claim, its allegations are still insufficient to state a claim. Strip searches will be upheld under the Fourth Amendment if they are "reasonable under the circumstances." United States v. Clemons, 2010 WL 597992, at *4 (W.D. Pa. 2010) (citing Bell v. Wolfish, 441 U.S. 520, 558-59, (1979)). Factors to consider include "the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted." Wolfish, 441 U.S. at 559. Luna has not provided any such information. Instead, he makes only a vague allegation of a "strip search" without providing any other details such as who conducted this search, where it took place, and when it took place.
The Court agrees with the Defendants. Luna's allegation provides insufficient information to state a claim. The allegation as pleaded does not "raise a right to relief above the speculative level." Belichick, 605 F.3d at 229 (quoting Twombly at 555 & n.3). The Defendants motion to dismiss should be granted as to this claim.
2. Excessive Force Claim
Luna also appears to allege an excessive force claim. He states that he was "beat up and tazed [sic]." ECF. No. 12-1. Such claims are analyzed under the Fourth Amendment and its "reasonableness standard." Damiani v. Duffy, 754 Fed. Appx. 142, 146-47 (3d Cir. 2018). The Defendants argue that the factual allegations relating to this claim are insufficient to state a claim and, in the alternative, are so sparse that they cannot prepare an adequate defense. ECF No. 28, pp. 3-4.
In this Circuit, § 1983 claims regarding excessive force have been permitted to proceed despite Heck, even in cases where the underlying criminal conviction had not been invalidated. See, e.g., Lora-Pena v. FBI, 529 F.3d 503, 506 (3d Cir. 2008); Nelson v. Jashurek, 109 F.3d 142, 145-46 (3d Cir. 1997); Fuller v. Narkin, 2018 WL 6171645, at *1 (E.D. Pa. Nov. 26, 2018), appeal docketed, No. 18-3660 (3d Cir. Dec. 7, 2018). This makes sense. As one Court recently observed, "Would a § 1983 claim regarding excessive force necessarily undermine the validity of the underlying conviction? In most cases, the answer would be no, and Heck would not bar the action. After all, even the guilty are entitled to be free from the use of excessive force." Dennis v. City of Philadelphia, 379 F.Supp.3d 420, 428 n.2 (E.D. Pa. 2019).
In order to properly allege excessive force, Luna must provide factual information for each element of the claim. In Rivas v. City of Passaic, 365 F.3d 181 (3d Cir.2004), the Third Circuit explained:
A claim for excessive force under the Fourth Amendment requires a plaintiff to show that a seizure occurred and that it was unreasonable.... The inquiry turns on objective reasonableness, meaning that the standard is whether the police officer's actions [were] objectively reasonable in light of the facts and circumstances facing the officer, regardless of the officer's intent or motivation.Id. at 198. Taking Luna's allegation as true and viewing it in the light most favorable to him, the Amended Complaint still fails to allege sufficient information to state a claim. Luna does not identify, for example, which officers allegedly used excessive force against him. He neither relates neither the setting or conditions associated with his claim nor the severity of any injuries he received. An allegation that unspecified individuals beat and tased him is insufficient to infer that the force exerted was unreasonable under the totality of the circumstances—circumstances of which Luna has provided no detail. See, e.g., Velius v. Twp. of Hamilton, 754 F. Supp.2d 689, 694 (D.N.J. 2016) ("[T]he presence or absence of a physical injury is but one relevant factor to consider in the Fourth Amendment excessive force analysis."). Given the paucity of the factual allegations, the Court should dismiss this claim.
3. Fourteenth Amendment
Luna also appears to allege certain violations of due process. The Due Process Clause of the Fourteenth Amendment provides that "no state shall . . . deprive any person of life liberty and property, without the due process of law." U.S. Const., Amend XIV. "Although the text of the due process clause refers only to the process through which a person is deprived of a constitutionally-protected liberty or property interest, the Supreme Court has declared the constitutional provision 'guarantees more than fair process.'" Grassmeyer, 30 F. Supp.3d at 390. The Fourteenth Amendment substantively prohibits a state from abusing governmental power or employing it an instrument of oppression. Douglas v. Brookville Area School District, 836 F. Supp.2d 329, 350 (W.D. Pa. 2011).
Luna generally avers that the Defendants "violated [his] due process rights." ECF No. 12, p. 1. The Court understands most of Luna's Fourteenth Amendment claims to be based on the same factual allegations of his Fourth Amendment claims: unreasonable search and seizure, excessive use of force, and unreasonable strip search incident to his arrest on August 6, 2017. Id. In Albright v. Oliver, the Court held "where a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims." 510 U.S. 266, 266 (1994). In the present case, Luna's Fourteenth Amendment claims are subsumed by the Fourth Amendment. Id; see generally Manning v. Basey, 541 Fed. Appx 742, 744 (9th Cir. 2013) ("[S]ummary judgment on Manning's Fourteenth Amendment due process claim against Harper and Payne was proper because it was subsumed by her Fourth Amendment claim.") (citing Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119, 1127 (9th Cir. 2002)). Thus, like his Fourth Amendment claims, these generalized due process violations should be dismissed.
Luna does make a single specific allegation that could serve as an independent Fourteenth Amendment claim. He claims that the Defendants "unlawfully took his money." ECF No. 12-1. To the extent that Luna asserts a Fourteenth Amendment claim for violation of due process regarding this allegation, he must establish that "(1) he was deprived of an individual interest that is encompassed within the Fourteenth Amendment's protection of life, liberty, or property, and (2) the procedures available to him do not provide due process of law." Hill v. Borough of Kutztown, 455 F.3d 225, 234 (3d Cir. 2006). However, Luna does not address any of these requirements. Instead, he merely concludes in a single sentence that a wrong was committed against him. This is not sufficient to state a plausible claim. Twombly, 550 U.S. at 550. The Court therefore concludes that Luna's Fourteenth Amendment claim for violation of due process related to the assertion that his money was unlawfully taken should be dismissed.
F. 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 Court should 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). With the exception to Luna's Fourth Amendment claims, which are barred by Heck, the remainder of his claims lack sufficient factual evidence to state a plausible claim. Since those claims are not precluded by law, it is recommended that the Court grant Defendants' motion to dismiss pursuant to Rule 12(b)(6), without prejudice, and permit Luna leave to file an Amended Complaint. III. Conclusion
This instruction is equally applicable to pro se litigants and those represented by counsel. Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004).
Based on the foregoing, it is respectfully recommended as follows:
1. Defendants' Motion to Dismiss Plaintiff's Fourth Amendment claim of illegal arrest should be GRANTED with prejudice.IV. Notice
2. Defendants' Motion to Dismiss Plaintiff's Fourth Amendment claim of illegal strip search should be GRANTED, without prejudice to Plaintiff filing an Amended Complaint.
3. Defendants Motion to Dismiss Plaintiff's excessive force claim should be GRANTED, without prejudice to Plaintiff filing an Amended Complaint.
4. Defendants Motion to Dismiss Plaintiff's due process claims relating to deprivation of his property (money) should be GRANTED without prejudice to Plaintiff filing an Amended Complaint. The Motion to Dismiss the remaining alleged due process claims should be GRANTED with prejudice.
The parties are referred to 28 U.S.C. § 636(b)(1) and Local Civil Rule 72(C)(2) for the appropriate procedure if any party desires to file objections to these findings and recommendations. Objections must be in writing and must be filed within fourteen days of this date. Failure to file timely objections may constitute a waiver of appellate rights. Angle v. Murin, 2013 WL 5888272, at *1 (W.D. Pa. Oct. 31, 2013).
Respectfully submitted this 26rd day of July, 2019.
/s/_________
RICHARD A. LANZILLO
United States Magistrate Judge