Opinion
1:18-cv-06
08-13-2021
ROBERT EARL NOBLE Plaintiff, v. THE CITY OF ERIE, PA Erie Police Department, DONALD DACUS, Chief of Police, MICHAEL NOLAN, Erie Police Department Narcotics Unit, Lt., JASON TRIANA, Erie Police Department Narcotics Unit, Det., STEVE DELUCA, Erie Police Department Narcotics Unit, Det., MICHAEL CHODUBSKI, Erie Police Department Narcotics Unit, Det. Individually and in their official capacities, Defendants.
Baxter, District Judge
REPORT AND RECOMMENDATION
ECF Nos. 18 & 50
LISA PUPO LENIHAN United States Magistrate Judge
I. RECOMMENDATION
It is respectfully recommended that the Motions to Dismiss filed by Defendants the City of Erie, PA, Donald Dacus, Michael Nolan, Jason Triana, Steve DeLuca, and Michael Chodubski (ECF Nos. 18 & 50) be granted and that this civil action be dismissed in its entirety.
II. REPORT
A. Background and Factual Allegations
Plaintiff Robert Earl Noble (“Plaintiff” or “Noble”) commenced this civil rights action on January 8, 2018 concerning his arrest on November 30, 2016 and subsequent prosecution. Plaintiff was initially arrested on state drug and weapons charges. See Court of Common Pleas of Erie County Docket Sheet, CP-25-CR-682-2017, ECF No. 53-9 at 2. On August 14, 2017, a nolle prosequi was entered by the state court on motion by the District Attorney which specifically stated: “Reason for Nolle Prosequi: Jurisdiction and Prosecution of this matter have been assumed by the U.S. Attorney's Office for the Western District of Pennsylvania.” ECF No. 53-4.
While Plaintiff's criminal proceedings were pending in federal court, District Judge David S. Cercone conducted two (2) days of hearings on suppression motions on January 28, 2019, and March 4, 2019. ECF Nos. 50-1 & 50-2. During the hearings, Judge Cercone made findings on the record that the investigating officers had probable cause to obtain the search warrant in that the controlled buys using a confidential informant did happen (Transcript of March 4, 2019 hearing, ECF No. 50-2 at 36, 48-49), and that Plaintiff's confession that the drugs found during the search were his was voluntary. ECF No. 50-2 at 29.
Transcripts from these proceedings are attached to Defendants' Motion to Dismiss.
When Plaintiff instituted this civil rights action on January 8, 2018, his criminal charges were still pending. On October 15, 2018, this Court stayed and administratively closed the civil rights action pending the outcome of the underlying criminal proceedings. See Memorandum Opinion & Order, ECF No. 36.
On December 21, 2020, District Judge Stephanie Haines dismissed the Indictment against Plaintiff due to a violation of the Speedy Trial Act. See 1:17-cr-05, Opinion and Order of Judge Haines, ECF No. 135. Plaintiff's civil rights action was re-opened (ECF No. 45) and Defendants filed a Supplemental Motion and Brief in Support of their Motion to Dismiss (ECF Nos. 50 & 51) that had been originally filed on April 11, 2018 (ECF No. 18).
Plaintiff's specific factual allegations underlying his civil rights Complaint are as follows. On November 30, 2016, Defendant Detective Jason Triana (“Triana”) submitted a warrant application and an Affidavit of Probable Cause to search 828 West 17th St and Robert Noble's person. Complaint, ECF No. 4 ¶ 11 & Search Warrant Application attached to Plaintiff's Complaint, ECF No. 4-1 at 3. The Affidavit of Probable Cause, also attached to Plaintiff's Complaint, stated that Detective Triana used a confidential informant who indicated to Triana that he had been purchasing crack cocaine from Plaintiff for the past year and had made purchases at least 100 times, and at least 8 times in the past two weeks. Purchases were made out of Plaintiff's silver Lincoln Navigator. ECF No. 4-1 at 2. The Affidavit of Probable Cause further indicated that Triana used the confidential informant to set up controlled buys between the confidential informant and Plaintiff. The confidential informant was under constant surveillance when the controlled buys were made. ECF No. 4-1 at 3. Upon approval of the warrant application, the detectives prepared to perform a traffic stop on plaintiff's Lincoln Navigator “about a block away from Walnut” -plaintiff was actually stopped near the corner of W. 3rd Street and Cherry Street. ECF No. 4 ¶¶ 12, 13. Plaintiff alleges that he and the vehicle were searched and no contraband was found. ECF No. 4 ¶ 13. Plaintiff was then detained and moved to 828 W. 17th St. where the search warrant was being executed and the “plaintiff's arrest/detention . . . continued.” Id.
The Incident Data Sheet Report for the City of Erie Police Department created on December 13, 2016, also attached to the Complaint, indicates that Plaintiff Noble “was a suspended driver.” ECF No. 4-2 at 1.
Plaintiff cites ECF 4-4 (Subpoena for Dash Cam Footage) and ECF 4-5 (Response to Subpoena) for support that his vehicle was searched - neither of those documents confirm the vehicle was searched; no dash cam footage existed because the patrol cars do not have dash cams. ECF 4-5. The police records do not indicate the vehicle was searched. ECF 4-2 at 1, ¶¶ 1-4; ECF 4-3 at 2. Further, plaintiff cites ECF 4-2 for support that “no contraband or evidence of a crime was discovered, ” and while ECF 4-2 does not say that any contraband was discovered in the car, there is no statement that they searched the car at all.
After the search warrant was executed, plaintiff was charged with various drug offenses and a firearms offense, pursuant to which “plaintiff received an unobtainable bail/bond of $100,000 . . . resulting in his continued detention and/or imprisonment . . . .” ECF No. 4 ¶¶ 14, 15.
Plaintiff then alleges that “during the prosecution, ” evidence of false/fabricated evidence and misstatements and omissions came to light. ECF No. 4 ¶ 16. The allegations focus on (a) fabrication of evidence regarding his address, alleging alteration of the information in the Incident Report (ECF No. 4-7), and (b) falsification or misstatements about the controlled buys. ECF No. 4 ¶¶ 16-18. With respect to the address, plaintiff alleges that because the Incident Report (ECF No. 4-7) contained the correct driver's license number, and because Plaintiff's driver's license (ECF 4-8) listed a different address than the Incident Report, the information on the Incident Report must have been fabricated. ECF No. 4 ¶ 17.
In the January and March suppression hearings, Plaintiff, proceeding pro se, cross examined Connie Dugan, a probation officer, about his change of address. See ECF No. 50-1 at 53-57. She testified that although there are some formal procedures for changing a parolee's address, she can make judgment calls in some respects, and that because plaintiff had called and told her that he was moving to 828 W. 17th Street address due to the birth of his daughter, she thought it was appropriate that he make the move and approved the move and address change. See id.
With respect to the controlled buys, plaintiff appears to allege they were concoctedbecause (a) the Commonwealth did not address plaintiff's motion to compel further discovery, and (b) the “face of the [affidavit, ECF 4-1] evinces inconsistent discrepancies [regarding] the integrity of the controlled buys.” ECF No. 4 ¶ 18.
Judge Cercone made a finding on the record that the controlled buys happened during the suppression hearings. ECF No. 50-2 at 36, 48-49.
In his motion, plaintiff asked for production of evidence about the controlled buys, including video surveillance, dates and times, and specific information about the serial numbers of the marked money. ECF 4-9 at 4. Plaintiff attached pages 10-14 of the criminal docket as Exhibit J (ECF 4-10), and there is no response to his motion, but there is an order denying the omnibus pretrial motion for production of CI (“Confidential Informant”). ECF 4-10 at 2. The motion to compel additional discovery may have been duplicative in view of the previous motions filed (attached to the original motion to dismiss at ECF 18-4, including a Motion to Compel Request for Discovery, Motion for Return of Property, Omnibus Pre-Trial Motion to/for Production of CI & to Suppress Evidence, Motion to Compel Compliance and/or Contempt of Court).
Plaintiff alleges inconsistencies between “[ECF 4-1] at page 1 section labelled ‘Dates of Violations' and . . . [paragraphs] 4 and 5 of page 3.” ECF 4 at 4, ¶ 18. The “Dates of Violations” [of the Controlled Substance . . . Act] section lists “11/01/16 till present” (and does not limit it to the controlled buys), and paragraphs 4 and 5 list specifically the controlled buys as happening “within the past two weeks” and “within the past 48 hours.” ECF 4-1 at 3.
As noted above, in the underlying federal criminal proceedings (1:17-cr-05), District Judge Cercone held hearings on Noble's Motions Challenging the “Veracity” and “Sufficiency” of the Search Warrant Affidavit and Motion to Suppress Evidence. With regard to his Motion to Suppress the Search Warrant, Noble argued that Defendant Triana falsified statements in his Affidavit of Probable Cause and because of those false statements, the fruits of the search of his person and the residence located at 828 West 17th Street should be suppressed. At oral argument, Noble contended that the two controlled buys never happened and that he was not sufficiently associated with the address of 828 West 17th Street.
As to whether this address was his residence, the District Judge stated:
Yes, that whole approach is really surprising me. I don't really understand. That does seem to be the case, Mr. Noble; that you think that this question of your residence is determinative.
Anyplace where there's probable cause to believe that the police may probably find contraband or evidence of a crime, it doesn't matter where it is-it could be your residence or not your residence-they may search.Transcript of January 28, 2019 Hearing on Suppression Motion, ECF No. 50-1 at 12.
Plaintiff alleges that the Commonwealth moved for nolle prosequi. ECF 4 at 5, ¶ 19. Plaintiff concludes that “[i]t is for the Commonwealth's dismissal of the firearms and marijuana offenses that the government refuses to prosecute [citing to the Federal Indictment] which warrants this cause of action.” ECF 4 ¶ 20.
Lastly, Plaintiff alleges that it is the City of Erie's (and the Chief of Police's) custom to fabricate evidence and behave in the way he is alleging in his case. ECF No. 4 ¶ 21.
B. Legal Standards
The United States Court of Appeals for the Third Circuit summarized the standard to be applied in deciding motions to dismiss filed pursuant to Rule 12(b)(6):
Under the “notice pleading” standard embodied in Rule 8 of the Federal Rules of Civil Procedure, a plaintiff must come forward with “a short and plain statement of the claim showing that the pleader is entitled to relief.” As explicated in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), a claimant must state a “plausible” claim for relief, and “[a] claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Although “[f]actual allegations must be enough to raise a right to relief above the speculative level, ” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), a plaintiff “need only put forth allegations that raise a reasonable expectation that discovery will reveal evidence of the necessary element.” Fowler, 578 F.3d at 213 (quotation marks and citations omitted); see also Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 117-18 (3d Cir. 2013).Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014).
In addition to the complaint, courts may consider matters of public record and other matters of which a court may take judicial notice, court orders, and exhibits attached to the complaint when adjudicating a motion to dismiss under Rule 12(b)(6). Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994) (citing 5A Wright and Miller, Federal Practice and Procedure: Civil 2d, § 1357; Chester County Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3d Cir. 1990)). A court may also consider indisputably authentic documents. Spruill v. Gillis, 372 F.3d 218, 223 (3d Cir. 2004); Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993); Golden v. Cook, 293 F.Supp.2d 546, 551 (W.D. Pa. 2003) (“[C]ourts are permitted to consider matters of which they may take judicial notice, including records and reports of administrative bodies, and publicly available records and transcripts from judicial proceedings ‘in related or underlying cases which have a direct relation to the matters at issue.'”) (citations omitted).
When considering pro se pleadings, a court must employ less stringent standards than when judging the work product of an attorney. Haines v. Kerner, 404 U.S. 519, 520 (1972). When presented with a pro se complaint, the court should construe the complaint liberally and draw fair inferences from what is not alleged as well as from what is alleged. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003). In a § 1983 action, the court must “apply the applicable law, irrespective of whether the pro se litigant has mentioned it by name.” Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (quoting Holley v. Dep't of Veteran Affairs, 165 F.3d 244, 247-48 (3d Cir. 1999)). See also Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (“Since this is a § 1983 action, the [pro se] plaintiffs are entitled to relief if their complaint sufficiently alleges deprivation of any right secured by the Constitution.”). Notwithstanding this liberality, pro se litigants are not relieved of their obligation to allege sufficient facts to support a cognizable legal claim. See, e.g., Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002); Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996).
C. Analysis
Section 1983 of the Civil Rights Act provides as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or any other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .42 U.S.C. § 1983. To state a claim for relief under this provision, a plaintiff must demonstrate that the conduct in the complaint was committed by a person or entity acting under color of state law and that such conduct deprived the plaintiff of rights, privileges or immunities secured by the Constitution or the laws of the United States. Piecknick v. Commonwealth of Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994). Section 1983 does not create rights; it simply provides a remedy for violations of those rights created by the United States Constitution or federal law. Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996).
1. Malicious Prosecution
Plaintiff alleges that “Defendant Triana's initiation of plaintiff's prosecution through the use of false/fabricated evidence and without probable cause violated plaintiff's rights constituting a malicious prosecution proscribed by the Fourth Amendment of the Constitution of the United States.” ECF No. 4 ¶ 24. In support of their Motion to Dismiss, Defendants argue that Plaintiff is unable to allege facts to establish three of the five required elements of a prima facie case. Plaintiff responds he has satisfied all elements.
In order to establish a Fourth Amendment malicious prosecution claim pursuant to § 1983, a plaintiff must show the following: 1) the defendant initiated a criminal proceeding; 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 seizure as a consequence of a legal proceeding. McKenna v. City of Philadelphia, 582 F.3d 447, 461 (3d Cir. 2009) (citing Estate of Smith v. Marasco, 318 F.3d 497, 521 (3d Cir. 2003)).
Plaintiff is unable to allege facts to support at least two of the required elements for a malicious prosecution claim. First, Plaintiff is unable to plausibly allege that the criminal proceeding was initiated without probable cause.
“Probable cause exists whenever reasonably trustworthy information or circumstances within a police officer's knowledge are sufficient to warrant a person of reasonable caution to conclude that an offense has been committed by the person being arrested.” United States v. Myers, 308 F.3d 251, 255 (3d Cir. 2002) (citing Beck v. Ohio, 379 U.S. 89, 91 (1964)). In determining whether probable cause exists to support an arrest, the analysis must be based upon the totality of circumstances including “the objective facts available to the officers at the time of the arrest.” Sharrar v. Felsing, 128 F.3d 810, 818 (3d Cir. 1997) (citing Illinois v. Gates, 462 U.S. 213, 230-31 (1983)). Subjective intentions of police officers are irrelevant to a Fourth Amendment probable cause analysis. Whren v. United States, 517 U.S. 806, 813 (1996).
Plaintiff argues that the controlled buys were concocted and consequently, there was no probable cause to support the search warrant that resulted in his arrest. Contrary to Plaintiff's argument, United States District Judge Cercone made a specific finding during the hearings on the suppression motions that the controlled buys did in fact happen. See Transcript of March 4, 2019 hearing, ECF No. 50-2 at 36, 48-49. Consequently, the search warrant and Plaintiff's subsequent arrest was supported by probable cause.
In addition, Plaintiff is unable to plausibly allege that the criminal proceedings ended in his favor. As to the state criminal charges, the reason for their dismissal was unequivocal: “Reason for Nolle Prosequi: Jurisdiction and Prosecution of this matter have been assumed by the U.S. Attorney's Office for the Western District of Pennsylvania.” ECF No. 53-4. And contrary to Plaintiff's suggestion at Paragraph 20 of his Complaint, simply because the federal prosecutor chose not to indict on the weapons charge, Plaintiff cannot plausibly allege the favorable termination element of a malicious prosecution claim. That is, although the federal prosecutor chose not to indict on one of the charges at issue in the state Nolle Prosequi, the federal prosecutor did indict on the drug charge. The favorable termination requirement requires a favorable termination of a proceeding, and not merely a charge or offense, where the charges arose out of the same facts and circumstances. See Kossler v. Crisanti, 564 F.3d 181, 188 (3d Cir. 2009) (“[T]he favorable termination of some but not all individual charges does not necessarily establish the favorable termination of the criminal proceeding as a whole.”). More importantly, the eventual dismissal of Plaintiff's federal prosecution due to a violation of the Speedy Trial Act does not constitute a favorable termination in that the dismissal here does not reflect the merits of the underlying criminal charges, only a violation of statutory procedural requirements. See Cordova v. City of Albuquerque, 816 F.3d 645, 652 (10th Cir. 2016). In its dismissal of Plaintiff's underlying federal criminal charge, Judge Haines noted that the criminal defendant demonstrated no prosecutorial misconduct. 1:17-cr-05, ECF No. 135 at 22 n.4. She agreed with the Government that there was “nothing in the record indicating the Government [was] implementing a strategy to needlessly complicate or delay this matter.” ECF Id. at 21. Judge Haines also noted that “the Court's delay and inattention also led to the violation of the Speedy Trial Act, and the Court must accept this responsibility.” Id. at 22. She also took note of the seriousness of the crime with which Plaintiff was charged:
Possession with intent to distribute twenty-eight (28) grams or more of crack cocaine is a significant and profoundly concerning crime. The conduct of the Government and the Court that caused the delay in bringing this charge to trial, while not intentional, demonstrates the disregard for the Speedy Trial Act and the public's right to have its Government and Court administer that Act in this case.Id. at 26. There is no suggestion in Judge Haines' dismissal that Plaintiff was innocent of the crime charged, or that the Government engaged in delay because of its misgivings about the likelihood of conviction. See Cordova, 816 F.3d at 651-52. Therefore, Defendants' Motion to Dismiss Plaintiff's Fourth Amendment claim for malicious prosecution should be granted in that he is unable to plausibly alleged the favorable termination requirement or that the criminal proceedings were instituted without probable cause.
2. Unreasonable Search and Seizure; False Arrest and False Imprisonment
Plaintiff alleges that “Defendant Triana's procurement of the search warrant without probable cause violated Plaintiff's rights constituting an unlawful and unreasonable search of him and the residence of 828 West 17th Street proscribed under the Fourth Amendment . . . .” ECF No. 4 ¶ 25. He further alleges that “Defendant Nolan's arrest and detention of the plaintiff on West 3rd and Cherry Street that continued at 828 West 17th Street at Nolan's instructions violated plaintiff's right to be free from unlawful and unreasonable seizures proscribed by the Fourth Amendment . . . .” ECF No. 4 ¶ 29.
In support of their Motion to Dismiss, Defendants argue that probable cause existed for the arrest and search. They also argue that pursuant to Hector v. Watt, 235 F.3d 154, 156 (3d Cir 2000), Plaintiff may not recover damages for a search that produced evidence of criminal conduct. Plaintiff responds that there was no probable cause to support the search warrant.
The Fourth Amendment's prohibition against unreasonable seizures protects individuals from arrest without probable cause. Orsatti v. New Jersey State Police, 71 F.3d 480, 482 (3d Cir. 1995) (citing Papachristou v. City of Jacksonville, 405 U.S. 156, 169 (1972)). “A person is seized for Fourth Amendment purposes only if he is detained by means intentionally applied to terminate his freedom of movement.” Berg v. County of Allegheny, 219 F.3d 261, 269 (3d Cir. 2000). Here, Plaintiff has alleged facts to plausibly suggest that he was seized for purposes of the Fourth Amendment. Plaintiff, however, is unable to allege that his seizure was unreasonable because his underlying criminal proceedings established that his arrest was supported by probable cause. As noted above, Judge Cercone made a specific finding during the hearings on the suppression motions that the controlled buys happened. See Transcript of March 4, 2019 hearing, ECF No. 50-2 at 36, 48-49. Consequently, the warrant resulting in Plaintiff's subsequent arrest/seizure was supported by probable cause and his Fourth Amendment claim must fail as a matter of law.
In order to make out a Fourth Amendment claim for an unreasonable search, the Plaintiff must allege that the search warrant was unsupported by probable cause. Again, Defendant Triana relied on the two controlled buys by the Confidential Informant to support his affidavit of probable cause. And again, as noted above, Judge Cercone made a specific finding on the record that the controlled buys did happen. Therefore, Plaintiff's Fourth Amendment claim for unreasonable search of the premises and his person must fail as a matter of law.
With regard to Defendants' argument regarding Hector v. Watt, 235 F.3d 154 (3d Cir. 2000), the United States Court of Appeals for the Third Circuit, following Townes v. City of New York, 176 F.3d 138, 148 (2d Cir. 1999), stated that “damages for an unlawful search should not extend to post-indictment legal process, for the damages incurred in that process are too unrelated to the Fourth Amendment's privacy concerns.” 235 F.3d at 157. The court continued that damages are limited to those injuries directly related to the invasion of privacy such as physical injury, property damage, and injury to reputation, but victims of unreasonable searches and seizures “cannot be compensated for injuries that result from the discovery of incriminating evidence and consequent criminal prosecution.”
Relatedly, Plaintiff alleges that “Defendant Triana's procurement of the search warrant without the existence of probable cause violated Plaintiff's rights to be free from unlawful and unreasonable seizures constituting a false arrest proscribed by the Fourth Amendment . . . .” ECF No. 4 ¶ 26. He further alleges that “Defendant Triana's procurement of the search warrant without probable cause violated plaintiff's rights constituting an unlawful detention and/or false imprisonment proscribed by the Fourth Amendment . . . .” ECF No. 4 ¶ 27. In support of their Motion to Dismiss, Defendants again argue that the arrest of Plaintiff was supported by probable cause. Plaintiff again responds that this Court should disregard Judge Cercone's findings in the underlying criminal proceeding and conduct a de novo review of whether probable cause existed to support the search warrant that lead to Plaintiff's arrest.
As noted above, the Fourth Amendment's prohibition against unreasonable seizures protects individuals from arrest without probable cause. Orsatti, 71 F.3d at 482. Similarly, to state a claim for false imprisonment, a plaintiff must establish that he was detained, and that the detention was unlawful. James v. City of Wilkes-Barre, 700 F.3d 675, 682-83 (3d Cir. 2012). That is, “where the police lack probable cause to make an arrest, the arrestee has a claim under § 1983 for false imprisonment based on a detention pursuant to that arrest.” Groman v. Twp. of Manalapan, 47 F.3d 628, 636 (3d Cir. 1995). Again, because the Court may take judicial notice of the proceedings before Judge Cercone and his findings made on the record during lengthy hearings on two (2) separate days, these claims too must fail as a matter of law.
3. Substantive and Procedural Due Process
In paragraph 23 of the Complaint, Plaintiff alleges that Triana's intentional use of false and fabricated evidence in procuring the search warrant violated Plaintiff's due process rights. In support of their Motion to Dismiss, Defendants argue that Plaintiff's due process claim is barred by the “Explicit Source Rule” and that Plaintiff alleges no facts to suggest a procedural due process violation. Plaintiff does not dispute that the explicit source rule bars any substantive due process claim but argues that he has alleged procedural irregularities to invoke procedural due process protections, namely, the intentional use of the alleged false and fabricated evidence to obtain the search warrant. ECF No. 53 at 16-17.
Plaintiff is correct that there is a standalone claim for fabrication of evidence, and that that claim arises under the procedural component of the Fourteenth Amendment's Due Process Clause. See Black v. Montgomery Cnty., 835 F.3d 358, 369 (3d Cir. 2016) (citing Halsey v. Pfeiffer, 750 F.3d 273, 294 (3d Cir. 2014)). However, as previously discussed, Judge Cercone made a specific finding at the suppression hearings that the controlled buys did happen. Therefore, Plaintiff is unable to allege facts to plausibly allege that false and fabricated evidence was used to obtain the search warrant. Defendants' Motion to Dismiss Plaintiff claim for violation of his procedural due process rights should be granted.
4. Excessive Bail
Plaintiff further alleges that “Defendant Triana's deliberate indifference to the facts circumscribing plaintiff's case resulted in the ‘over filing' of criminal charges constituting an excess bail and cruel and unusual punishment in violation of the Eighth Amendment . . . .” ECF No. 4 ¶ 28. In support of their Motion to Dismiss, Defendants argue that Plaintiff has failed to make out a prima facie case for excessive bail. ECF No. 51 at 14. Plaintiff responds that his straight cash bond in the amount of $100,000 would probably have been lower if Plaintiff had been charged only with the drug offenses rather than both the drug charges and the firearms charge. ECF No. 53 at 17-18.
The Eighth Amendment provides that “[e]xcessive bail shall not be required.” U.S. Const. amend VIII. In order to state a claim for excessive bail, Plaintiff must allege facts to suggest that his bail was excessive in light of the valid state interests sought to be protected and that Defendants actually and proximately caused his bail to be excessive. Johnson v. Koehler, Civil Action No. 3:14-CV-1490, 2015 WL 1470948, at *19 (M.D. Pa. March 31, 2015).
In Pennsylvania, the district justice, not police officers, set bail. See Pa. R. Crim. P. 120. Further, Plaintiff does not allege facts to suggest that Defendant Triana was involved in manipulating, shaping or otherwise influencing the bond decision of an independent tribunal. See James v. York Cnty. Police Dep't, 160 F. App'x, 126, 133 (3d Cir. 2005). He alleges only that the “over filing of criminal charges” caused the issuance of the bail amount by the tribunal. He does not allege that Defendant Triana communicated with the tribunal or the tribunal's staff in an attempt to influence the tribunal's bail decision. Cf. Wagenmann v. Adams, 829 F.2d 196, 211-12 (1st Cir. 1987) (jury's finding that police officer influenced bail decision when he called the court clerk in an attempt to influence the tribunal's decision affirmed).
Therefore, Defendant's Motion to Dismiss excessive bail claim should be granted.
5. Conspiracy
Plaintiff alleges that the individual Defendants conspired with one another to violate all of the above rights “through their alleged participation in the two concocted controlled drug buys.” ECF No. 4 ¶ 30. Again, Plaintiff's claim must fail because he has failed to allege an underlying constitutional violation. That is, a claim for conspiracy is a derivative one, and where there is no underlying constitutional violation, a conspiracy claim necessarily fails. See Harvard v. Cesnalis, 973 F.3d 190, 207 (3d Cir. 2020); Talley v. Varner, 786 Fed.Appx. 326, 329 (3d Cir. 2019). Therefore, it is recommended that Defendants' Motion to Dismiss Plaintiff's claim for conspiracy should be granted.
6. Qualified Immunity
Defendants raise the issue of qualified immunity. Because the Court has determined as a matter of law that Plaintiff is unable to alleged facts to plausibly allege that Defendants violated Plaintiff's constitutional rights, the Court need not discuss the qualified immunity analysis further.
7. Municipal Liability
Here, because the Court recommends that Plaintiff's Complaint should be dismissed for failure to plausibly allege an underlying constitutional violation by any of the individual officers, the Court need not address Plaintiff's attempt to allege Monell liability against the City of Erie and its police department. See City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986).
8. Leave to Amend
The Court notes that “[w]hen a plaintiff does not seek leave to amend a deficient complaint after a defendant moves to dismiss it, the court must inform the plaintiff that he has leave to amend within a set period of time, unless amendment would be inequitable or futile.” Grayson v. Mayview Hosp., 293 F.3d 103, 108 (3d Cir. 2002). Here, any attempt by Plaintiff to amend would be futile based upon the factual allegations of the Complaint, the documents upon which Plaintiff relies attached to the Complaint, and the documents upon which the Court may take judicial notice.
IIII. CONCLUSION
For the reasons discussed above, it is respectfully recommended that the Motions to Dismiss filed by Defendants the City of Erie, PA, Donald Dacus, Michael Nolan, Jason Triana, Steve DeLuca, and Michael Chodubski (ECF Nos. 18 & 50) be granted and that this civil action be dismissed in its entirety.
In accordance with the Magistrate Judges Act, 28 U.S.C. §636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of service of a copy of this Report and Recommendation to file objections. Any party opposing the objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file timely objections will constitute a waiver of any appellate rights.