Opinion
Civil Action No. 21-107
02-03-2021
BRIAN SIMPSON, Plaintiff, v. TPR. JERAIL SMITH ID# 00695772, Defendant.
District Judge Nora Barry Fischer
Re: ECF No. 4 REPORT AND RECOMMENDATION
I. RECOMMENDATION
For the reasons stated below, it is respectfully recommended that the Complaint filed by Plaintiff Brian Simpson ("Plaintiff") be dismissed sua sponte, pursuant to 28 U.S.C. § 1915(e)(2)(B), as frivolous and malicious, and for failure to state a claim for which relief can be granted.
II. REPORT
Plaintiff filed the instant action on January 26, 2021 when the Complaint was received by the Clerk's Office along with a motion for leave to proceed in forma pauperis ("IFP"). See ECF Nos. 1 and 4. Plaintiff was granted leave to proceed IFP on January 29, 2021. See ECF No. 3.
The envelope in which these filings were sent was postmarked January 22, 2021. See ECF No. 1-3 at 1. However, because there is no indication that Plaintiff is incarcerated - indeed, his address-of-record indicates the contrary - he is not entitled to the prison mailbox rule, and the complaint is deemed filed when it was received by the Clerk. See Fed. R. Civ. P. 3; see also Bond v. VisionQuest, 410 F. App'x 510, 514 (3d Cir. 2011) (Plaintiff not entitled to prison mailbox rule when nothing in complaint or motion indicates that he was imprisoned at time of filing).
Plaintiff raises claims against Defendant TPR Jerail Smith ("Defendant") pursuant to 42 U.S.C. § 1983 et seq. Plaintiff alleges violations of his rights under the Second, Fourth, Sixth, and Fourteenth Amendments to the Constitution of the United States of America stemming from a summary citation for disorderly conduct issued by Defendant, and which was received by Plaintiff on or about April 5, 2018. ECF No. 4 at 3, 7. The citation relates to Plaintiff target shooting on his five-acre private property. Id. at 7.
Plaintiff also complains of the form of the citation, which did not include the specific subsection of the statute that Plaintiff was charged with violating. Plaintiff alleges that during his interview with Defendant prior to the issuance of the citation, it was made clear that Defendant's only concern was the noise caused by Plaintiff firing his firearm "because of the time of day." Id. Plaintiff further complains of Defendant's behavior during a hearing before a local magistrate, during which Defendant allegedly "feigned confusion and seemed to not understand the significance of listing the specific subsection on the citation." Id. Plaintiff admits that he was convicted - presumably on the charges in the citation. Id. Plaintiff seeks to recover monetary damages. Id.
It appears from the Complaint that the hearing before the local magistrate occurred prior to Plaintiff's trial de novo before the Court of Common Pleas on January 29, 2019.
While the Complaint includes limited details, the history of Plaintiff's case is recited by the Pennsylvania Superior Court in its opinion denying Plaintiff's appeal from his criminal conviction. See Commonwealth v. Simpson, No. 324 WDA 2019, 2020 WL 1158019 (Pa. Super. Ct., Mar. 10, 2020). The Superior Court confirmed that the disorderly conduct charge stemmed from Plaintiff's discharge of a firearm during nighttime hours on April 5, 2018. Id. at *1. At his trial de novo before the Court of Common Pleas of Lawrence County on January 29, 2019, Plaintiff was found guilty of one count of disorderly conduct in violation of 18 Pa. Cons. Stat. Ann. § 5503(2) - making unreasonable noise - and found not guilty of violating 18 Pa. Cons. Stat. Ann. §§ 5503(1), (3), and (4) for the same conduct. Id. Plaintiff was fined $300 plus the costs of prosecution. Id. As noted above, the conviction was affirmed by the Superior Court.
Courts are permitted to take judicial notice of matters of public record, prior judicial opinions, and official court records. See, e.g., McTernan v. City of York, 577 F.3d 521, 526 (3d Cir. 2009); Carlev v. Wheeled Coach, 991 F.2d 1117, 1126 (3d Cir. 1993) (citing Gov't of Virgin Islands v. Testamark, 528 F.2d 742, 743 (3d Cir. 1976)). Accordingly, this Court takes judicial notice of the Superior Court's opinion affirming Plaintiff's conviction, as well as the underlying docket of the Court of Common Pleas at CP-37-SA-0000092-2018.
A. Applicable Standard
Title 28 of the United States Code, Section 1915, establishes the criteria for allowing an action to proceed IFP. Section 1915(e) requires the federal courts to review complaints filed by persons that are proceeding in forma pauperis and to dismiss, at any time, any action that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). Thus, a court must dismiss, sua sponte, a complaint that lacks arguable merit in fact or law. Stackhouse v. Crocker, 266 F. App'x 189, 190 (3d Cir. 2008) (citing Neitzke v. Williams, 490 U.S. 319, 325 (1989)).
The standard for reviewing a complaint under Section 1915(e)(2)(B) is the same as that for determining a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Banks v. Mozingo, No. 1:08cv004, 2009 WL 497572, at *6 (W.D. Pa. Feb. 26, 2009) (Cercone, J.). Under the Rule, dismissal is appropriate if, reading the complaint in the light most favorable to the plaintiff, and accepting all factual allegations as true, no relief could be granted under any "reasonable reading of the complaint" Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). A complaint must be dismissed even if the claim to relief is "conceivable," because a plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial 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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
B. Analysis
1. Analysis under Heck v. Humphrey
The allegations in the instant Complaint call into question the validity of Plaintiff's criminal conviction, and thus are governed by the decision of the United States Supreme Court in Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the Supreme Court determined that civil rights law was not meant to provide a means for collaterally challenging the validity of a conviction through the pursuit of money damages. In so concluding, the Supreme Court announced the following rule:
[W]hen 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.Id. at 486-87.
The crux of Plaintiff's claims is that Defendant violated certain of his constitutional rights by charging him with disorderly conduct for shooting his firearm at night. See, e.g., ECF No. 4 at 3 and 7. Plaintiff does not allege that he ever received a favorable determination of the case. Consequently, entering a judgment in favor of Plaintiff on claims related to his conviction in state court necessarily would call into question the validity of that conviction and resulting sentence, which clearly is barred by the Supreme Court's holding in Heck. Thus, Plaintiff's claims should be dismissed sua sponte.
Plaintiff's apparent acquittal of subsections (1) and (3)-(4) of the disorderly conduct statute does not qualify as a favorable determination under Heck because the subsection that he was convicted under related to the same conduct. See Buxton v. Dougherty, 686 F. App'x 125, 127 (3d Cir. 2017) (citing cases and discussing that a plaintiff might receive a favorable determination under Heck when a partial acquittal relates to conduct separate from that for which a conviction was entered).
2. Statute of Limitations
To the extent that Plaintiff complains of any of Defendant's conduct on April 5, 2018 that would not call into question his criminal conviction, the claim is barred by the statute of limitations.
It is well-established that the statute of limitations for any Section 1983 claim is the forum state's statute of limitations for personal injury suits. Mumma v. High Spec, Inc., 400 F. App'x 629, 631 (3d Cir. 2010) (citing Wilson v. Garcia, 471 U.S. 261, 266-67 (1985) (overruled on other grounds)).
The so-called "Third Circuit Rule" allows for the sua sponte dismissal, pursuant to 28 U.S.C. § 1915(e)(2)(B), of claims that, based on the face of the complaint, are barred by the statute of limitations. See Mumma, 400 F. App'x at 631. The applicable statute of limitations in Pennsylvania is two years. 42 Pa. Cons. Stat. Ann. § 5524. Plaintiff filed his Complaint on January 26, 2021 and, as such, all claims accruing prior to January 26, 2019 are time-barred.
For these reasons, to the extent that Plaintiff asserts any claims arising from Defendant's conduct on April 5, 2018, the accrual of which was not delayed by Heck, the same should be dismissed as being time-barred.
3. Leave to Amend
Given the futility of any leave to amend, dismissal should be with prejudice. See Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007).
III. CONCLUSION
Based on the considerations set forth above, it respectfully is recommended the Complaint, ECF No. 4, be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) as frivolous and malicious, and for failure to state a claim for which relief can be granted.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen days thereafter in accordance with Local Civil Rule 72.D.2. Dated: February 3, 2021
Respectfully submitted,
/s/ Maureen P . Kelly
MAUREEN P. KELLY
UNITED STATES MAGISTRATE JUDGE cc: Hon. Nora Barry Fischer
BRIAN SIMPSON
4189 Edinburg Road
New Castle, PA 16102