Opinion
Civil Action 3:21-CV-170
12-15-2021
JOAN PEREZ, Plaintiff v. JUDGE FARRELL, et al., Defendants
MANNION, D.J.
REPORT & RECOMMENDATION
William I. Arbuckle, U.S. Magistrate Judge.
I. INTRODUCTION
Joan Perez is an inmate held in the Lackawanna County Prison and currently being prosecuted in both state and federal court for related conduct. He initiated this civil rights action alleging claims that fail on their facts, but also (if resolved in his favor) would interfere with validity of both pending criminal prosecutions. In addition to seeking money damages, Plaintiff also requests the court to suppress evidence in his criminal cases, dismiss the pending criminal charges, or sentence him to time served.
Plaintiff sought, and has been granted, leave to proceed in forma pauperis. Plaintiff is subject to the screening provisions in 28 U.S.C. § 1915(e). See Atamian v. Burns, 236 Fed.Appx. 753, 755 (3d Cir. 2007) (“the screening procedures set forth in 28 U.S.C. § 1915(e) 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. 28 U.S.C. § 1915(e)(2)(B). See Collins v. Cundy, 603 F.2d 825, 828 (10th Cir. 1979) (“[T]here 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.”).
Because all of his claims are Heck barred, and because he seeks relief that is not available in a § 1983 case, it is RECOMMENDED that:
(1) Plaintiff's complaint (Doc. 1) be DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim, but without prejudice to filing a new civil action if the pending criminal cases terminate in Plaintiff's favor.
(2) the Clerk of Court be DIRECTED to close this case.
II. BACKGROUND & PROCEDURAL HISTORY
Plaintiff alleges that, beginning October 2020 he began texting with a person he believed to be female. (Doc. 1, p. 6). At midnight on November 6 or 7, 2020, Plaintiff went to meet that female because he was offered sex and money, and instead learned that the “female” was an adult man named Carlos. Id. Plaintiff alleges that “Carlos” and two of his friends “sucker punched” Plaintiff and then called the police. Id. When the police arrived, an officer named “A. Rivera” (hereinafter “A. Rivera 1”) slammed unresisting Plaintiff to the ground. Id. While Plaintiff was on the ground “Carlos” punched Plaintiff and “busted” Plaintiff's lips on the right side. Id.
Plaintiff alleges that he was charged with several state crimes including sexual assault and assault to a minor. (Doc. 1, p. 7). The state court criminal docket sheet is not publicly accessible.
Ruling on motions to dismiss, the court generally relies only on the complaint, attached exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007). Because 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 take judicial notice of the publicly available criminal docket associated with Plaintiff's civil case. After Plaintiff filed this Complaint (in January 2021), he was indicted on federal charges (in February 2021) that appear to relate to the same incident. See Indictment, USA v. Perez, No. 3:21-CR-42 (M.D. Pa. Feb. 23, 2021) ECF No. 1. On the date of his initial appearance Plaintiff was in custody on state charges. See Criminal Cover Sheet, USA v. Perez, No. 3:21-CR-42 (M.D. Pa. Feb. 23, 2021) (indicating that Plaintiff was in custody in Lackawanna County Prison awaiting trial on state charges). The federal prosecution is ongoing. Because the state court docket is not publicly available, the Court is not aware of the status of the state court criminal case.
On January 29, 2021, Plaintiff filed a Complaint, asserting claims under § 1983 arising out of the arrest itself, and events that followed it including interrogation, court proceedings, and his imprisonment. Plaintiff names the following thirteen (13) Defendants:
In his complaint, Plaintiff asserts claims against two separate individuals named “A. Rivera.” Only one “A. Rivera” is named as a Defendant in the complaint.
(1) Judge Farrell;
(2) The Commonwealth of Pennsylvania;
(3) Police Officer A. Rivera;
(4) Corrections Officer Michael Esposito (Lackawanna County Prison);
(5) Deputy Warden William Shanley (Lackawanna County Prison);
(6) Sergeant Aloe (Lackawanna County Prison);
(7) Corrections Officer Jack Gilroy (Lackawanna County Prison);
(8) Sergeant Mills (Lackawanna County Prison);
(9) Corrections Officer Denise Slemmer (Lackawanna County Prison);
(10) Deputy Warden Timoti Betti (Lackawanna County Prison);
(11) Corrections Officer Pete Zelensky (Lackawanna County Prison);
(12) Corrections Officer Derek Lavelle (Lackawanna County Prison); and
(13) Corrections Officer Zator (Lackawanna County Prison).
As far as his legal claims, Plaintiff alleges that:
(1) A. Rivera (hereinafter “A. Rivera 1”) failed to arrest “Carlos” for violating Plaintiff's Fourth Amendment rights. (Doc. 1, p. 6). I construe this allegation as a claim of selective prosecution.
(2) A. Rivera 1 arrested and interrogated Plaintiff. (Doc. 1, p. 5). Plaintiff alleges he was not told his rights. Id. I construe this allegation as a Fifth Amendment claim that Plaintiff was forced to incriminate himself.
(3) A second person named “A. Rivera” (hereinafter “A. Rivera 2”) signed Plaintiff's name to a Miranda waiver. Id. I construe this as an allegation that A. Rivera 2 is liable for A. Rivera 1's violation of Plaintiff's Miranda rights.
(4) Judge Farrell witnessed A. Rivera 2 sign Plaintiff's name to a Miranda waiver. Id. I construe this as an allegation that Judge Farrell is liable for A. Rivera 1's violation of Plaintiff's Miranda rights.
(5) Defendants four through thirteen listed above (hereinafter the “Corrections Defendants”) “unlawfully detained” Plaintiff. Id. I construe this as a “false imprisonment” claim.
III. LEGAL STANDARDS
A. SCREENING COMPLAINTS UNDER 28 U.S.C. § 1915(E)(2)
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 -
(A) the allegation of poverty is untrue; or
(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). The United States Court of Appeals for the Third Circuit has observed the evolving standards governing pleading practice in the federal courts, stating that “pleading standards have seemingly shifted from simple notice pleading to a more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss.” Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009). “[A] complaint must do more than allege the plaintiff's entitlement to relief.” Id. at 211. It also “has to ‘show' such an entitlement with its facts.” Id.
To test the sufficiency of the complaint under Rule 12(b)(6), the court must conduct the following three-step inquiry:
First, the court must “tak[e] note of the elements a plaintiff must plead to state a claim.” Iqbal, 129 S.Ct. at 1947. Second, the court should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 1950. Finally, “where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.” Id. Santiago v. Warminster Tp., 629 F.3d 121, 130 (3d Cir. 2010).
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.'” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Nevertheless, “pro se litigants still must allege sufficient facts in their complaints to support a claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013). Thus, a well-pleaded complaint must contain more than mere legal labels and conclusions. Rather, 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, set forth in a “short and plain” statement of a cause of action.
B. STANDARDS FOR CIVIL RIGHTS CLAIMS UNDER 42 U.S.C. § 1983
“Section 1983 imposes civil liability upon any person who, acting under the color of state law, deprives another individual of any rights, privileges, or immunities secured by the Constitution or laws of the United States.” Shuman v. Penn Manor School Dist., 422 F.3d 141, 146 (3d Cir. 2005). “It is well settled that § 1983 does not confer any substantive rights, but merely ‘provides a method for vindicating federal rights elsewhere conferred.'” Williams v. Pa. Human Relations Comm'n, 870 F.3d 294, 297 (3d Cir. 2017) (quoting Hildebrand v. Allegheny Cnty., 757 F.3d 99, 104 (3d Cir. 2014)). To establish a claim under Section 1983, Plaintiff must establish a deprivation of a federally protected right and that this deprivation was committed by a person acting under color of state law. Woloszyn v. Cnty. of Lawrence, 396 F.3d 314, 319 (3d Cir. 2005).
For a private actor to “come within the purview of Section 1983 liability, “plaintiff must show that [the stated] defendants acted under color of state law by pointing to some action, undertaken by them, that is fairly attributable' to the state.” Hynoski v. Columbia Cty. Redevelopment Auth., 941 F.Supp.2d 547, 562 (M.D. Pa. 2013) (internal quotations and citations omitted). To accomplish this, a plaintiff “must show (1) that the defendants' acts were ‘the exercise of some right or privilege created by the State or by a rule of conduct imposed by the state or by a person for whom the State is responsible' and (2) that the defendants may fairly be said to be state actors.” Id. For example, “[a] private party who willfully participates in a joint conspiracy with state officials to deprive a person of a constitutional right acts ‘under color of state law' for purposes of § 1983.” Id.
In addition, liability under Section 1983 is personal in nature, and to be liable, a defendant must have been personally involved in the wrongful conduct. In other words, “state actors are liable only for their own unconstitutional conduct.” Barkes v. First Corr. Med., Inc., 766 F.3d 307, 316 (3d Cir. 2014), rev'd on other grounds sub nom. Taylor v. Barkes, 135 S.Ct. 2042 (2015). Respondeat superior cannot form the basis of liability. Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005). “Personal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Thus, to establish a Section 1983 claim, a plaintiff must show that a defendant participated in a violation of his rights, directed others to violate those rights, or otherwise had knowledge of and acquiesced in violations committed by subordinates. Baker v. Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995).
IV. DISCUSSION
A. PLAINTIFF'S SELECTIVE PROSECUTION CLAIM AGAINST A. RIVERA 1 SHOULD BE DISMISSED
Plaintiff alleges:
The officer who arrested me allowed “Carlos” to violate by Fourth Amendment 1994 ....
While Carlos is inside talking to police officers. as I am arrested and first slammed to the floor by officer A. Rivera and his weight on my back Carlos is laughing and recording me and punches me busted lips right side violating my fourth amendment 1994 right I did not resist arrest.(Doc. 1, p. 6) (errors in original).
I construe these allegations as a claim against A. Rivera 1 for selective prosecution. The Third Circuit Court of Appeals has described “selective prosecution” as:
a form of discriminatory law enforcement that has been held to violate the Equal Protection Clause of the Fourteenth Amendment since Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064 (1886), which held officials liable for “illegal discrimination” when they “applied and administered” a facially neutral law “with an evil eye and an unequal hand.”Davis v. Malitzki, 451 Fed.Appx. 228, 234 (3d Cir. 2011). To plead a plausible claim of selective prosecution, a Plaintiff must allege facts demonstrating:
(1) that persons similarly situated were not prosecuted; and (2) that the decision to prosecute was made on the basis of an unjustifiable standard, such as race, religion or “some other arbitrary factor.” Davis, 451 Fed.Appx. at 234 (quoting United States v. Schoolcraft, 879 F.2d 64, 68 (3d Cir. 1989)).Johnson v. Koehler, No. 3:14-CV-1490, 2015 WL 1470948 at *15 (M.D. Pa. Mar. 31, 2015).
Here, Plaintiff's claim of selective prosecution cannot proceed because Plaintiff does not allege enough facts to show that he is “similarly situated” to Carlos, or that the decision to prosecute Plaintiff but not Carlos was based on the basis of race, religion, or some other arbitrary factor.
B. PLAINTIFF'S FIFTH AMENDMENT CLAIMS AGAINST A. RIVERA 1, A. RIVERA 2, & JUDGE FARRELL SHOULD BE DISMISSED
In his complaint, Plaintiff alleges that A. Rivera 1 interrogated Plaintiff without advising Plaintiff of his Miranda rights.
Plaintiff alleges that A. Rivera 2 “forged” Plaintiff's signature on the Miranda waiver. I construe the allegations against A. Rivera 2 as a theory that A. Rivera 2 is liable for the acts of A. Rivera 1.
Plaintiff also alleges that Judge Farrell witnessed the forgery. I construe this as a theory that Judge Farrell is liable for the acts of A. Rivera 1.
Plaintiff does not allege whether he made any incriminating statements during the “interrogation” with A. Rivera 1.
Plaintiff's Miranda-related claims fall under the Fifth Amendment to the United States Constitution. The Fifth Amendment protects against compelled selfincrimination. It provides, in relevant part that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V.
Plaintiff's Fifth Amendment claims should be dismissed because “[q]uestioning a plaintiff in custody without providing Miranda warnings is not a basis for a § 1983 claim as long as the plaintiff's statements are not used against [him] at trial.” Renda v. King, 347 F.3d 550, 557 (3d Cir. 2003); see e.g. Toussaint v. Twp. of Kearny, (dismissing a plaintiff's fifth amendment claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) because Plaintiff did not allege that he provided a statement to the police or that his statements were used against him at trial).
In this case, Plaintiff does not allege that he provided any statement to A. Rivera 1 during the interrogation, and does not allege that any statements were used against him during trial. Similarly, because there is no underlying constitutional violation, A. Rivera 2 and Judge Farrell cannot be held liable.
Plaintiff is also advised that Defendant Farrell may also be immune from suit.
Judicial immunity is sweeping. Because judges cannot be influenced by personal liability, they cannot be sued even if the judge acted maliciously, in bad faith, or even conspires with other lawyers in the case. Brown v. City of Phila., No. 04-5163, 2005 U.S. Dist. LEXIS 16765, at *8-9 (citing Pierson, 386 U.S. at 554; D'Alessandro v. Robinson, 210 F.Supp.2d 526, 529 (D. Del. 2002)). There are only two very narrow situations where a judge's absolute immunity can be overcome: (1) for nonjudicial actions or (2) actions taken in the absence of all jurisdiction. Mireles, 502 U.S. at 11-12. There are two kinds of immunity under Section 1983: qualified immunity and absolute immunity. Yarris v. County of Delaware, 465 F.3d 129, 135 (3d Cir. 2006). Although most public officials are entitled only to qualified immunity, public officials who perform “special functions” are entitled to absolute immunity. Id. (quoting Butz v. Economou, 438 U.S. 478, 508 (1978)). The grant of absolute immunity to a select group of individuals is to protect those decision makers from fear of incurring personal liability. Id. Judges fall into this special category of public officials and are therefore afforded absolute immunity. Pierson v. Ray, 386 U.S. 547, 553-54 (1967). Without absolute immunity, the potential of legal liability would influence a judge's decision-making and “manifestly detract from independent and impartial adjudication.” Forrester v. White, 484 U.S. 219, 227 (1988).
C. PLAINTIFF'S FALSE IMPRISONMENT CLAIMS SHOULD BE DISMISSED
The Fourth Amendment protects “[t]he rights of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV . A claim for false imprisonment under § 1983 is based in the Fourth Amendment and the guarantee against unreasonable seizures. Garcia v. County of Bucks, 155 F.Supp.2d 259, 265 (E.D. Pa. 2001). “[W]here 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).
Here, Plaintiff alleges that he is innocent of the state crimes he was charged with, but does not allege that the police lacked probable cause to make the arrest. Furthermore, Plaintiff does not allege any personal involvement by the Corrections Defendants in the decision to detain Plaintiff pending trial. Absent such allegations, Plaintiff's false imprisonment claims should be dismissed.
D. PLAINTIFF'S CLAIMS ARE HECK-BARRED & SEEK INJUNCTIVE RELIEF NOT AVAILABLE IN A § 1983 CASE
In this case, Plaintiff seeks damages for constitutional violations in connection with criminal proceeding in Lackawanna County. After Plaintiff filed this civil action federal charges were brought against him arising out of the same incident. The status of the Lackawanna County proceedings is unknown. The federal criminal case is ongoing.
In Heck v. Humphrey, the Supreme Court held that, where a judgment in favor of a plaintiff in a § 1983 action for damages would necessarily imply the invalidity of the plaintiff's criminal conviction or sentence, the plaintiff must first demonstrate that “the criminal proceedings have terminated in the plaintiff's favor.” 512 U.S. 477, 489 (1994). “[I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination or called into question by a federal court's issuance of a writ of habeas corpus [under] 28 U.S.C. § 2254.” Id. at 486-87. In Wilkinson v. Dotson, 544 U.S. 74 (2005), the Supreme Court reaffirmed the favorable termination rule and broadened it to encompass equitable remedies as well, holding that “a state prisoner's § 1983 action is barred (absent prior invalidation)-no matter what the relief sought (damages or equitable relief), no matter the target of the prisoner's suit (state conduct leading to conviction or internal prison proceedings)-if success in that action would necessarily demonstrate the invalidity of confinement or its duration.” Wilkinson, 544 U.S. at 81-82. The Heck bar applies whether the plaintiff is a pretrial detainee or has already been convicted of the charges for which he is currently incarcerated. See Smith v. Holtz, 87 F.3d 108, 113 (3d Cir. 1996) (“In terms of the conflicts which Heck sought to avoid, there is no difference between a conviction which is outstanding at the time the civil rights action is instituted and a potential conviction on a pending charge that may be entered at some point thereafter.”), abrogated on other grounds by Wallace v. Kato, 549 U.S. 384, 388 (2007).
Plaintiff has failed to demonstrate that the state court criminal proceedings at issue terminated in his favor. The federal criminal charges are still pending. In reviewing Plaintiff's selective prosecution, Miranda, and false imprisonment claims, I find that any ruling issued in Plaintiff's favor on these issues would imply the invalidity of the pending charges. Courts have noted that a successful selective prosecution claim could render a Pennsylvania state court conviction invalid. See Jackson v. Rosen, No. 20-2482, 2020 WL 3498131 at *6 (E.D. Pa. June 26, 2020).
Furthermore, the false imprisonment and Miranda claims improperly invite this court to weigh in on evidentiary issues that may arise during a criminal proceeding and effect its outcome. Therefore, Plaintiff cannot bring these claims unless the pending state and federal proceedings terminate in his favor.
Last, to the extent Plaintiff seeks the suppression of evidence in his criminal cases, and the dismissal of the pending criminal charges, this relief is not appropriate in a § 1983 action. Because both of these requests for relief boil down to attempts to seek a speedier release from his imprisonment, this relief cannot be obtained under § 1983. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973).
E. LEAVE TO AMEND
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.” Phillips v. County of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008).
In his Complaint, Plaintiff has failed to plead enough facts to support claims for selective prosecution, self-incrimination clause, or false imprisonment claims. If it were solely the lack of detail, amendment should be permitted. However, these claims also imply the invalidity of pending criminal cases in Lackawanna County and in this Court. Therefore, because all of these claims are barred by Heck v. Humphrey, allowing further amendment at this time would be futile. Therefore,
Plaintiff's claims should be dismissed without allowing further amendment, but without prejudice to filing a new civil action after the resolution of the pending criminal cases, if the pending criminal cases terminate in Plaintiff's favor.
V. RECOMMENDATION
Accordingly, it is RECOMMENDED that:
(1) Plaintiff's complaint (Doc. 1) be DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim, but without prejudice to filing a new civil action if the pending criminal cases terminate in Plaintiff's favor.
(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.