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 Westmoreland County Detective James Williams ("Detective Williams"), Westmoreland County Assistant District Attorney Allen Powanda ("ADA Powanda"), and Attorney Michael DeMatt ("Attorney DeMatt"). (ECF No. 37).
For the reasons that follow, it is respectfully recommended that Detective Williams, ADA Powanda, and Attorney DeMatt's motion to dismiss (ECF No. 37) be granted, the federal claims against these Defendants be dismissed with prejudice, as amendment would be futile, and the court decline to exercise supplemental jurisdiction over any of Plaintiff's putative state law claims and such claims be dismissed without prejudice.
II. REPORT
a. Background
Criminal charges were brought in Westmoreland County, Pennsylvania against Plaintiff for sending a picture 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 state law claims for malicious prosecution and defamation. 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
Defendants each bring separate arguments in support of dismissal. Each argument will be addressed in turn.
i. Absolute immunity
First, ADA Powanda argues that he is entitled to absolute prosecutorial immunity for Plaintiff's 42 U.S.C. § 1983 claims. It is well-established that state prosecutors are absolutely immune from civil rights suits pursuant to section 1983 for initiating and prosecuting crimes. Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976) (absolute immunity extends to prosecutor's actions "intimately associated with the judicial phase of the criminal process," such as "initiating a prosecution and . . . presenting the [Commonwealth's] case."). Prosecutors are entitled to absolute immunity for section 1983 claims even if it leaves "the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty." Id. at 421-24,426, 427 and n.23. Absolute immunity for prosecutors exercising their quasi-judicial functions of office serves the broader public interest by allowing a prosecutor to perform her duties vigorously and without fear of retaliation of a civil suit for prosecuting crimes. Id. at 427-28.
Here, the entirety of Plaintiff's claims against ADA Powanda relate to ADA Powanda prosecuting Plaintiff for the underlying criminal charges. Plaintiff alleges "I presented my argument against the prosecution, lead (sic) by the misguided [A]ssistant [D]istrict [A]ttorney Allen Powanda, who knew about my accusations and followed James Williams in his false, malicious endeavor, only to fail miserably and publicly when unshielded by the ability to manipulate court (sic) process against someone whom he mistakenly believed was defenseless." Compl. (ECF No. 1-1) at 5. Drawing all reasonable inferences from Plaintiff's allegations, he simply complains that ADA Powanda prosecuted him and used testimony by Detective Williams that Plaintiff alleges was false. ADA Powanda is entitled to absolute immunity for his decisions in determining which evidence to present at trial. Imbler, 424 U.S. at 431. ADA Powanda is immune from such claims even if it leaves Plaintiff without civil redress. Accordingly, ADA Powanda is entitled to absolute immunity for Plaintiff's section 1983 claims and it is therefore respectfully recommended that those claims be dismissed with prejudice, as amendment would be futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002).
ii. Qualified immunity
Next, Detective Williams argues that he is entitled to qualified immunity for Plaintiff's section 1983 claims.
Qualified immunity shields government employees sued in their personal capacities from liability unless their conduct violates "clearly established statutory or constitutional rights . . . which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In determining whether a government official is entitled to qualified immunity, courts apply a two-part test: (1) whether the facts alleged by the plaintiff establish a violation of a constitutional right; and (2) whether the constitutional right was clearly established at the time of the alleged violation such that a reasonable official would understand what he is doing violates that right. Pearson v. Callahan, 555 U.S. 223, 232 (2009).
Here, Plaintiff alleges that Detective Williams provided false testimony against him in the underlying criminal trial and "obstructed justice." Specifically, Plaintiff alleges that Plaintiff complained that Detective Williams obstructed justice and tampered with evidence in another criminal case in which Plaintiff was charged. Plaintiff alleges that after he complained, charges were filed against him by Detective Williams. See Compl. (ECF No. 1-1) at 4. Plaintiff does not provide any information regarding what he believes Detective Williams falsely testified about or what evidence Detective Williams allegedly tampered with. While it is unclear from the complaint, the court will infer that Plaintiff intends to bring a Fourth Amendment malicious prosecution claim and a First Amendment retaliation claim pursuant to 42 U.S.C. § 1983 against Detective Williams.
Detective Williams argues that he is entitled to qualified immunity because he was acting in his capacity as a detective in the Westmoreland County District Attorney's Office when investigated and pursued criminal charges against Plaintiff and Plaintiff has failed "to state how Detective Williams violated Plaintiff's constitutional rights and what specific constitutional rights were violated." Defs.' Br. (ECF No. 38) at 6.
Plaintiff's malicious prosecution claim under the Fourth Amendment requires the following five elements: (1) the defendant initiated a criminal proceeding; (2) the criminal proceeding ended in plaintiff's favor; (3) the defendant initiated the proceeding without probable cause; (4) the defendant acted maliciously or for a purpose other than bringing the plaintiff to justice; and (5) the plaintiff suffered deprivation of liberty consistent with the concept of seizure as a consequence of a legal proceeding. Halsey v. Pfeiffer, 750 F.3d 273, 296-97 (3d Cir. 2014). Drawing all reasonable inferences from Plaintiff's complaint, he has not stated a claim for a Fourth Amendment malicious prosecution against Detective Williams. While Plaintiff alleges that Detective Williams initiated criminal charges against him which led to his prosecution and that he was found not guilty of the charges, he provides no allegations which would reasonably lead to discovery that would show that Detective Williams had no probable cause to bring the charges. On the contrary, Plaintiff admits in his complaint that he sent a photograph of Hannibal Lecter to a judge in Westmoreland County, which is what he was criminally charged for. Therefore, it is undisputed that Detective Williams had probable cause to bring the criminal charges against Plaintiff for sending the picture and he cannot state a claim for malicious prosecution under the Fourth Amendment. Accordingly, Detective Williams is entitled to qualified immunity for this claim and it is respectfully recommended that Plaintiff's Fourth Amendment malicious prosecution claim be dismissed with prejudice, as amendment would be futile. Grayson, 293 F.3d at 114.
Turning to Plaintiff's First Amendment retaliation claim against Detective Williams, the First Amendment "prohibits government officials from subjecting an individual to retaliatory actions" for engaging in protected speech. Hartman v. Moore, 547 U.S. 250, 256 (2006). To state a claim for First Amendment retaliation, a plaintiff must show that they (1) engaged in protected speech or activity; (2) the government responded to that speech or activity with retaliation; and (3) that the protected speech or activity was the cause of the government's retaliation. Nieves v. Bartlett, — U.S. —, 139 S. Ct. 1715, 1722, 204 L.Ed.2d 1 (2019).
For a retaliatory arrest or prosecution claim, the plaintiff only meets the causation requirement if he adequately pleads the total absence of probable cause for the underlying charges. Nieves, 139 S. Ct. at 1723 (retaliatory arrest); Hartman, 547 U.S. at 263-65 (retaliatory prosecution). While Plaintiff engaged in protective speech by opposing police action, he cannot meet the absence of probable cause element, because he admits that he sent the picture that he was ultimately criminally charged for. See Houston v. Hill, 482 U.S. 451, 462-63 (1987). Accordingly, because Plaintiff cannot show this threshold element, Detective Williams is entitled to qualified immunity for this claim and it is respectfully recommended that Plaintiff's First Amendment retaliation claim be dismissed with prejudice, as amendment would be futile. Grayson, 293 F.3d at 114.
iii. Under "color of law"
Attorney DeMatt argues that because he was defending Plaintiff through conflict counsel as Plaintiff's court appointed attorney, he cannot be a person acting under color of law for 42 U.S.C. § 1983 purposes.
"[A] plaintiff seeking to hold an individual liable under § 1983 must establish that she was deprived of a federal constitutional or statutory right by a state actor." Kach v. Hose, 589 F.3d 626, 646 (3d Cir.2009). "[A] public defender does not act under color of state law when performing a lawyer's traditional functions as counsel to a defendant in a criminal proceeding." Polk Cty. v. Dodson, 454 U.S. 312, 325 (1981). This principle extends to court appointed attorneys, like those through conflict counsel. T.R. v. Havens, 612 F. App'x 83, 89 (3d Cir. 2015). While court appointed attorneys "may" act under color of state law for section 1983 purposes "while performing certain administrative and possibly investigative functions," Polk, 454 U.S. at 325, Plaintiff fails to allege any plausible "administrative-action" exception to the general rule. Plaintiff's claims against Attorney DeMatt are based entirely on his allegedly ineffective assistance of counsel to Plaintiff in his criminal proceeding. Accordingly, Attorney DeMatt was not acting under color of law for section 1983 purposes and it is respectfully recommended that all section 1983 claims against Plaintiff be dismissed with prejudice, as amendment would be futile. Grayson, 293 F.3d at 114.
iv. Supplemental jurisdiction
Because it is respectfully recommended that all claims over which the district court has original jurisdiction be dismissed with prejudice, it is further respectfully recommended that to the extent that Plaintiff seeks to bring state law claims for defamation or malicious prosecution, the court should decline to exercise supplemental jurisdiction over such claims pursuant to 28 U.S.C. § 1367(c)(3) and Plaintiff's remaining state law claims be dismissed without prejudice. Doe v. Mercy Catholic Med. Ctr., 850 F.3d 545, 567 (3d Cir. 2017).
d. Conclusion
Accordingly, based on the foregoing, it is respectfully recommended that Detective Williams, ADA Powanda, and Attorney DeMatt's motion to dismiss (ECF No. 37) be granted and the federal claims against these Defendants be dismissed with prejudice, as amendment would be futile, and the court decline to exercise supplemental jurisdiction over any of Plaintiff's putative state law claims and such claims be dismissed without prejudice.
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