Opinion
CIVIL ACTION NO. 4:18-cv-00166
10-02-2018
CHAD WILCOX, Plaintiff, v. SERGEANT JAMES TAYLOR, et al., Defendants.
(BRANN, J.)
() REPORT AND RECOMMENDATION
This action was commenced by the plaintiff, Chad Wilcox, when he constructively filed his original pro se complaint (Doc. 1) on January 15, 2018, the date when he delivered it to prison officials for mailing. See generally Houston v. Lack, 487 U.S. 266, 270-71 (1988) (articulating the "prison mailbox rule"). At the time of filing, Wilcox was incarcerated at SCI Coal Township, located in Northumberland County, Pennsylvania.
In his complaint, Wilcox alleges that the defendants—a South Williamsport police sergeant and his supervisor, the borough's chief of police—unlawfully confiscated a laptop computer and papers containing materials protected by attorney-client privilege and work product doctrine. At the time, Wilcox was out on bail facing child molestation charges in Lycoming County, Pennsylvania. He alleges that these materials were subsequently used by investigators and prosecutors to gain an unfair advantage in his Lycoming County trial, and as actual documentary evidence produced in pretrial discovery in an unrelated Montgomery County, Pennsylvania, murder case. Ultimately, Wilcox was convicted in both counties.
For the reasons set forth below, we recommend that this action be dismissed as frivolous and for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), § 1915(e)(2)(B)(ii), and § 1915A(b)(1).
I. BACKGROUND
In March 2012, Wilcox was charged with rape of a child and related offenses in Lycoming County. One of the defendants, Sergeant James Taylor, was the charging officer. Wilcox was placed under arrest and held in jail until he was able to post bail in October 2012.
In January 2013, Wilcox's bail was revoked for violation of the terms of his release. Wilcox alleges that this revocation was due to a combination of adverse weather conditions, his own carelessness, and a surveillance campaign by Taylor and the other defendant, Chief of Police Robert Hetner, who together sought to find some excuse to revoke Wilcox's bail.
In connection with Wilcox's bail revocation arrest in January 2013, the defendants searched his residence, apparently with the consent of the plaintiff's wife, and seized a laptop and various papers belonging to Wilcox, which allegedly included attorney-client privileged communications, trial preparation materials, and other documents and physical evidence related to Wilcox's criminal defense.
Wilcox remained in jail until he was able to post bail once again in October 2013. In September 2014, Wilcox absconded, failing to appear for trial. Several weeks later, Wilcox was arrested and returned to Lycoming County to face trial.
Now, in addition to the Lycoming County charges already pending, Wilcox was also facing murder charges in Montgomery County for an offense that occurred while he was a fugitive. Later, in January 2015, handwriting exemplars were produced by the prosecution in discovery in the Montgomery County murder case. Among the documents produced in discovery were handwriting exemplars taken from the materials seized from Wilcox's home in January 2013.
On January 22, 2016, a Lycoming County jury found Wilcox guilty of rape of a child and related offenses, and Wilcox was sentenced to serve an aggregate prison term of 21 to 70 years of incarceration. On July 18, 2017, his conviction and sentence were affirmed on direct appeal by the Superior Court of Pennsylvania. See Commonwealth v. Wilcox, 175 A.3d 393 (Pa. Super. Ct. 2017) (table decision); see also Commonwealth v. Wilcox, No. 1032 MDA 2016, 2017 WL 3037517 (Pa. Super. Ct. July 18, 2017) (unpublished opinion). Wilcox filed a petition for allocatur in the Supreme Court of Pennsylvania, which was denied on January 31, 2018. Commonwealth v. Wilcox, 180 A.3d 1213 (Pa. 2018) (per curiam table decision).
Meanwhile, on May 11, 2015, Wilcox pleaded guilty to charges of third-degree murder, burglary, and robbery in the Montgomery County proceedings. He was sentenced that same day to serve an aggregate prison term of 40 to 80 years of incarceration. Approximately one year later, Wilcox filed a petition for PCRA relief, which was dismissed by the PCRA court on May 23, 2017. Wilcox appealed the denial of PCRA relief to the Superior Court of Pennsylvania, where the case remains pending at this time. See Commonwealth v. Wilcox, No. 2016 EDA 2017 (Pa. Super. Ct. filed June 23, 2017).
II. LEGAL STANDARD
Under 28 U.S.C. § 1915A, the Court is obligated to screen a civil complaint in which a prisoner is seeking redress from a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a); James v. Pa. Dep't of Corr., 230 Fed. App'x 195, 197 (3d Cir. 2007). The Court must dismiss the complaint if it is "frivolous" or "fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915A(b)(1). The Court has a similar obligation with respect to actions brought in forma pauperis. See 28 U.S.C. § 1915(e)(2)(B). See generally Banks v. Cty. of Allegheny, 568 F. Supp. 2d 579, 587-89 (W.D. Pa. 2008) (summarizing prisoner litigation screening procedures and standards).
An action is "frivolous where it lacks an arguable basis in either law or fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989); see also Thomas v. Barker, 371 F. Supp. 2d 636, 639 (M.D. Pa. 2005). To determine whether it is frivolous, a court must assess a complaint "from an objective standpoint in order to determine whether the claim is based on an indisputably meritless legal theory or clearly baseless factual contention." Deutsch v. United States, 67 F.3d 1080, 1086 (3d Cir. 1995) (citing Denton v. Hernandez, 504 U.S. 25, 34 (1992)); Thomas, 371 F. Supp. 2d at 639. Factual allegations are "clearly baseless" if they are "fanciful," "fantastic," or "delusional." See Denton, 504 U.S. at 32-33. "[A] finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them." Id. at 33. A district court is further permitted, in its sound discretion, to dismiss a claim "if it determines that the claim is of little or no weight, value, or importance, not worthy of serious consideration, or trivial." Deutsch, 67 F.3d at 1089.
The legal standard for dismissing a complaint for failure to state a claim under § 1915A(b)(1) or § 1915(e)(2)(B)(ii) is the same as that for dismissing a complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Brodzki v. Tribune Co., 481 Fed. App'x 705, 706 (3d Cir. 2012) (per curiam); Mitchell v. Dodrill, 696 F. Supp. 2d 454, 471 (M.D. Pa. 2010); Banks, 568 F. Supp. 2d at 588. "Under Rule 12(b)(6), a motion to dismiss may be granted only if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court finds the plaintiff's claims lack facial plausibility." Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). Although the Court must accept the fact allegations in the complaint as true, it is not compelled to accept "unsupported conclusions and unwarranted inferences, or a legal conclusion couched as a factual allegation." Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (quoting Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007)). In deciding the motion, the Court may consider the facts alleged on the face of the complaint, as well as "documents incorporated into the complaint by reference, and matters of which a court may take judicial notice." Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
III. DISCUSSION
Wilcox asserts federal civil rights claims pursuant to 42 U.S.C. § 1983. Section 1983 provides a private cause of action with respect to the violation of federal constitutional rights. The statute provides in pertinent part:
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.
Section 1983 does not create substantive rights, but instead provides remedies for rights established elsewhere. City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985). To establish a § 1983 claim, a plaintiff must establish that the defendant, acting under color of state law, deprived the plaintiff of a right secured by the United States Constitution. Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995).
Here, Wilcox claims that defendants Taylor and Hetner deprived him of his Fifth, Sixth, and Fourteenth Amendment rights under the United States Constitution. Although the pro se plaintiff's claims are not clearly articulated, we liberally construe the complaint to allege the following claims: (1) the seizure of the laptop and legal papers violated the plaintiff's Fourth Amendment right to be free from unreasonable searches and seizures; (2) the seizure of the laptop and legal papers violated the plaintiff's Fifth Amendment right against compulsory self-incrimination; (3) the seizure of the laptop and legal papers violated the plaintiff's Sixth Amendment right to counsel; and (4) the seizure of the laptop and legal papers and subsequent withholding of these items of evidence violated the plaintiff's Fourteenth Amendment right to due process. See generally Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244-46 (3d Cir. 2013) (discussing a court's obligation to liberally construe pro se pleadings and other submissions, particularly when dealing with imprisoned pro se litigants).
We recommend that this action be dismissed sua sponte because all of the plaintiff's claims are barred, either by the favorable termination rule articulated by the Supreme Court of the United States in Heck v. Humphrey, 512 U.S. 477 (1994), or by the applicable statute of limitations.
A. Favorable Termination Rule
In Heck, the Supreme Court held that, where 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 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 this 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.
It is not clear that all of Wilcox's claims necessarily imply the invalidity of his criminal conviction or sentence, but some do. Compare James v. York Cty. Police Dep't, 160 Fed. App'x 126, 133 (3d Cir. 2005) ("[T]o the extent [plaintiff's] Fifth Amendment claims were based on assertions of compelled self-incrimination, Heck bars their review."), and Smith v. Holtz, 879 F. Supp. 435, 442 (M.D. Pa. 1995) (holding that Heck applied to Fourteenth Amendment due process claim for deprivation of a fair trial due to the withholding of exculpatory evidence), with Sanders v. Downs, 420 Fed. App'x 175, 179 (3d Cir. 2011) (per curiam) ("Heck typically does not bar actions for Fourth Amendment violations."), and Clouser v. Johnson, 40 F. Supp. 3d 425, 435 (M.D. Pa. 2014) (noting that Sixth Amendment claims are not categorically barred by Heck's favorable termination rule and finding claim that evidence was obtained in violation of plaintiff's Sixth Amendment rights was not Heck-barred). To the extent that Wilcox's claims necessarily imply the invalidity of his criminal conviction or sentence, he has failed to demonstrate that his conviction or sentence has previously been reversed, expunged, declared invalid, or called into question. Accordingly, under Heck, certain of Wilcox's federal civil rights claims against these defendants are not cognizable under 42 U.S.C. § 1983. As such, these claims lack any arguable basis in law and should be dismissed as legally frivolous and for failure to state a claim. Saunders v. Bright, 281 Fed. App'x 83, 85 (3d Cir. 2008) (per curiam); Ruth v. Richard, 139 Fed. App'x 470, 471 (3d Cir. 2005) (per curiam); Boykin v. Siena House Gaudenzia Program, 464 F. Supp. 2d 416, 424 (M.D. Pa. 2006).
B. Statute of Limitations
To whatever extent Wilcox's claims are not barred by the Heck favorable termination rule, they are barred by the applicable statute of limitations.
Federal civil rights claims brought pursuant to 42 U.S.C. § 1983 are subject to Pennsylvania's two-year statute of limitations applicable to personal injury actions. Bougher v. Univ. of Pittsburgh, 882 F.2d 74, 78-79 (3d Cir. 1989); see also 42 Pa. Cons. Stat. Ann. § 5524. Although the running of a statute of limitations is an affirmative defense, which generally must be raised by way of answer to the complaint, see Fed. R. Civ. P. 8(c), where that defense is obvious from the face of the complaint and no development of the record is necessary, a court may dismiss a time-barred complaint as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i) and § 1915A(b)(1). See Muhammad v. Weis, Civil Action No. 08-3616, 2009 WL 2525454, at *9, *13 (E.D. Pa. Aug. 17, 2009); Todd v. Grace, Civil Action No. 1:08-CV-00440, 2008 WL 2552805, at *1 (M.D. Pa. June 24, 2008); Johnson v. City/County of Philadelphia, Civ. A. No. 90-7756, 1991 WL 12169, at *1 (E.D. Pa. Jan. 30, 1991), aff'd sub nom. Johnson v. Buinno, 945 F.2d 395 (3d Cir. 1991) (table decision).
Here, none of the wrongful conduct alleged to have been committed by defendants Taylor or Hetner occurred within the two years prior to the filing of this action in January 2018. The allegedly unlawful search and seizure occurred in January 2013. Handwriting exemplars taken from the papers seized by Taylor were produced to Wilcox in discovery in the Montgomery County proceedings in January 2015. This action was filed five years after the allegedly unlawful seizure of Wilcox's laptop computer and legal papers, and three years after he learned that the defendants had allegedly furnished materials containing attorney-client privileged communications and protected work product to Montgomery County prosecutors. There is nothing to suggest any reason why the limitations period should be tolled.
Under the circumstances presented, these claims are clearly based on an indisputably meritless legal theory and thus should be dismissed as legally frivolous and for failure to state a claim. See Johnstone v. United States, 980 F. Supp. 148, 154 (E.D. Pa. 1997); see also Pino v. Ryan, 49 F.3d 51, 53-54 (2d Cir. 1995); Myers v. Vogal, 960 F.2d 750, 750-51 (8th Cir. 1992) (per curiam); Street v. Vose, 936 F.2d 38, 39 (1st Cir. 1991) (per curiam); Clark v. Ga. Pardons & Paroles Bd., 915 F.2d 636, 640 n.2 (11th Cir. 1990).
C. Leave to Amend
The Third Circuit has instructed that if a civil rights complaint is vulnerable to dismissal for failure to state a claim, the district court must permit a curative amendment, unless an amendment would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). In this case, Wilcox's claims are legally frivolous and thus clearly futile. Dismissal without further leave to amend is recommended.
IV. PLRA "THREE STRIKES" WARNING
The plaintiff is hereby notified that a prisoner may not bring a civil action or appeal a civil judgment under 28 U.S.C. § 1915,
if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.28 U.S.C. § 1915(g).
If this recommended disposition is adopted by the presiding United States District Judge, the dismissal of this action as frivolous and for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), § 1915(e)(2)(B)(ii), and § 1915A(b)(1) will constitute a "strike" under 28 U.S.C. § 1915(g), and the accumulation of additional strikes may bar the plaintiff from proceeding in forma pauperis in later cases absent a showing of imminent danger. See generally Byrd v. Shannon,715 F.3d 117, 126 (3d Cir. 2013) (articulating Third Circuit standard for application of § 1915(g) "three strikes" rule).
V. RECOMMENDATION
Based on the foregoing, it is recommended that:
1. The plaintiff's complaint (Doc. 1) be DISMISSED as legally frivolous and for failure to state a claim, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), § 1915(e)(2)(B)(ii), and § 1915A(B)(1); and
2. The Clerk be directed to CLOSE this case. Dated: October 2, 2018
s/ Joseph F . Saporito , Jr.
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated October 2, 2018. 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.
Failure to file timely objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights. Dated: October 2, 2018
s/ Joseph F . Saporito , Jr.
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge