Opinion
2:19-CV-00984-CRE
04-20-2020
GREGG TCHIRKOW, Plaintiff, v. ALLEN POWANDA, JAMES WILLIAMS, JOSH SHAPIRO, MICHAEL DEMATT, Defendants
REPORT AND RECOMMENDATION
I. RECOMMENDATION
This civil action was initiated on August 12, 2019 by Plaintiff Gregg Tchirkow, proceeding pro se, alleging civil rights claims against multiple state actors in connection with criminal charges brought against him in Westmoreland County, Pennsylvania and ultimately which he was found not guilty of. This court has subject matter jurisdiction over the controversy pursuant to 28 U.S.C. § 1331 and supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367.
Presently before the court is a motion to dismiss for failure to state a claim pursuant to Federal Rule Civil Procedure 12(b)(6) by Pennsylvania Attorney General Josh Shapiro ("AG Shapiro"). (ECF No. 24). For the reasons that follow, it is respectfully recommended that AG Shapiro's motion to dismiss be granted and Plaintiff's claims against him be dismissed with prejudice, as amendment would be futile.
II. REPORT
a. Background
Criminal charges were brought in Westmoreland County, Pennsylvania against Plaintiff for sending a photograph of "Hannibal Lecter" to a Court of Common Pleas Judge in Westmoreland County, Pennsylvania. Compl. (ECF No. 1) at 8. Plaintiff was found not guilty of the charges. He now brings the present civil rights suit against Westmoreland County Detective James Williams for allegedly tampering with evidence during the criminal trial, Westmoreland County Assistant District Attorney Allen Powanda for prosecuting the criminal charges, Attorney Michael DeMatt who represented Plaintiff for his ineffective assistance of counsel, and Pennsylvania Attorney General Josh Shapiro for failing to intervene in the local prosecution. Id. at 4-9. Plaintiff alleges claims under the First and Fourth Amendments and a state law claim for malicious prosecution. Id. at 3.
For purposes of this recommendation, the court will assume that Plaintiff is referring to the fictional character "Hannibal Lecter" played by actor Anthony Hopkins in the Hollywood film Silence of the Lambs.
b. Standard of Review
The applicable inquiry under Federal Rule of Civil Procedure 12(b)(6) is well-settled. Under Federal Rule of Civil Procedure 8, a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Rule 12(b)(6) provides that a complaint may be dismissed for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint that merely alleges entitlement to relief, without alleging facts that show entitlement, must be dismissed. See Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009). This "'does not impose a probability requirement at the pleading stage,' but instead 'simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of' the necessary elements." Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556). Nevertheless, the court need not accept as true "unsupported conclusions and unwarranted inferences," Doug Grant, Inc. v. Great Bay Casino Corp., 232 F.3d 173, 183-84 (3d Cir. 2000), or the plaintiff's "bald assertions" or "legal conclusions." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997).
Although a complaint does not need detailed factual allegations to survive a Rule 12(b)(6) motion, a complaint must provide more than labels and conclusions. Twombly, 550 U.S. at 555. A "formulaic recitation of the elements of a cause of action will not do." Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). "Factual allegations must be enough to raise a right to relief above the speculative level" and "sufficient to state a claim for relief that is plausible on its face." Twombly, 550 U.S. at 555. Facial plausibility exists "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, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).
The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. . . . Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 556) (internal citations omitted).
When considering a Rule 12(b)(6) motion, the court's role is limited to determining whether a plaintiff is entitled to offer evidence in support of his claims. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The court does not consider whether a plaintiff will ultimately prevail. Id. A defendant bears the burden of establishing that a plaintiff's complaint fails to state a claim. Gould Elecs. v. United States, 220 F.3d 169, 178 (3d Cir. 2000).
As a general rule, if a court "consider[s] matters extraneous to the pleadings" on a motion for judgment on the pleadings, the motion must be converted into one for summary judgment. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997). However, a court may consider (1) exhibits attached to the complaint, (2) matters of public record, and (3) all documents that are integral to or explicitly relied upon in the complaint, even if they are not attached thereto, without converting the motion into one for summary judgment. Mele v. Fed. Reserve Bank of N.Y., 359 F.3d 251, 256 n. 5 (3d Cir. 2004); Pension Benefit Guaranty Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).
c. Discussion
AG Shapiro argues that Plaintiff has not alleged the requisite personal involvement for his civil rights claims against AG Shapiro and that there is no duty of the Pennsylvania Office of Attorney General to intervene in county criminal cases. Def's Br. (ECF No. 25) at 3-7.
To state a viable 42 U.S.C. § 1983 claim, a plaintiff must sufficiently plead that (1) the conduct complained of was committed by a person acting under the color of state law, and (2) that said conduct deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States. See Groman v. Twp of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995). To that end, a defendant in a civil rights action must have personal involvement in the alleged wrongs. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). "In order to prevail on a § 1983 claim against multiple defendants, a plaintiff must show that each individual defendant violated his constitutional rights." Estate of Smith v. Marasco, 430 F.3d 140, 151 (3d Cir. 2005). In other words, each defendant "must have personal involvement in the alleged wrongdoing." Rode, 845 F.2d at 1207. "Personal involvement can be shown through allegations of personal direction or actual knowledge and acquiescence." Id.
Here, the entirety of Plaintiff's claims against AG Shapiro are that he, "as the [Commonwealth's] [A]ttorney [G]eneral, had the duty to intervene in this complete abuse of the judicial process within the [C]ommonwealth, yet he did nothing to stop the juggernaut of failure ignited by the [W]estmoreland [C]ounty judiciary. For this sheepish inaction, he is liable in part for the destructive slander I was unfairly subjected to." Compl. (ECF No. 1) at 5.
Here, AG Shapiro is under no absolute legal obligation to intervene in criminal cases brought by local municipalities, and further, a failure to intervene is not a recognized civil rights violation or state law claim.
Pursuant to 71 P.S. §§ 732-201 et seq., (the "Commonwealth Attorneys Act"), the Commonwealth of Pennsylvania Office of Attorney General is entirely a statutory creation. The powers of the Office of Attorney General are explicitly set forth in the Commonwealth Attorneys Act, and no where in the Act does it permit the Commonwealth's Attorney General to unilaterally intervene in a criminal prosecution initiated by a local district attorney's office. Com. v. Carsia, 517 A.2d 956, 958 (Pa. 1986) (the Commonwealth Attorneys' Act is the "sole source" of the Commonwealth's Attorney General's power). Notwithstanding, the Act allows the Pennsylvania Attorney General to prosecute criminal cases as a substitute for a local district attorneys' office only where the district attorneys' office requests the substitution, 71 P.S. § 732-205(a)(3), where a failure or refusal by the local district attorneys' office to prosecute would result in an abuse of discretion, 71 P.S. § 732-205(a)(4), or where the president judge of the county court refers the case to the Attorney General's office for prosecution and the Attorney General's office accepts the case. 71 P.S. § 732-205(a)(5). Plaintiff's claim is essentially that AG Shapiro had a duty to intervene in his local prosecution and his failure to do so violated his civil rights and violated state law. There is no case law stating that failure of the Attorney General's office to take any of these steps to intervene in a local prosecution creates a federal civil rights or state law claim for those being prosecuted. Accordingly, based upon the lack of personal involvement by AG Shapiro in any of Plaintiff's alleged civil rights claims and the lack of a viable state law claim for his alleged failure to intervene, it is respectfully recommended that AG Shapiro's motion to dismiss be granted and the claims against him be dismissed with prejudice, as amendment would be futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002).
d. Conclusion
Accordingly, based on the foregoing, it is respectfully recommended that AG Shapiro's motion to dismiss (ECF No. 24) be granted and the claims against him be dismissed with prejudice, as amendment would be futile.
Therefore, pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), Federal Rule of Civil Procedure 72, and the Local Rules for Magistrates, and because Plaintiff is a non-electronically registered party, he has until May 7, 2020 to file objections to this report and recommendation. Failure to file timely objections will constitute a waiver of any appellate rights. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011).
DATED this 20th day of April, 2020.
Respectfully submitted,
s/Cynthia Reed Eddy
Chief United States Magistrate Judge