Opinion
Civil Action 2:20-cv-620
07-06-2021
STEFON D. WILSON, Plaintiff, v. JUDGE JOSEPH DEMARCHIS, JACQUELYN A. KNUPP, JAMES J. PHILLIPS and AGENT RICH CASTAGNA, Defendants.
W. Scott Hardy, Judge.
REPORT AND RECOMMENDATION
PATRICIA L. DODGE, United States Magistrate Judge.
I. Recommendation
It is respectfully recommended that the Court grant the motions to dismiss filed by Judge Joseph DeMarchis (ECF No. 41), Jacquelyn A. Knupp (ECF No. 32) and Agent Rich Castagna (ECF No. 44), and grant the partial motion to dismiss filed by James J. Phillips (ECF No. 38). It is also recommended that the Court dismiss with prejudice Plaintiff's claim for injunctive relief requesting his immediate release from prison and dismiss without prejudice the motion to stay (ECF No. 38) filed by James J. Phillips.
II. Report
A. Relevant Procedural History
Plaintiff Stefon Wilson is a state pretrial detainee currently housed at the Westmoreland County Prison. Jeanette Police Officer James J. Phillips arrested him on September 12, 2019. (ECF No. 12, ¶ 1; see also Magisterial District Judge docket, Commonwealth v. Wilson, No. MJ-10101-CR-379-2019 at pp. 1-2.) The Commonwealth then charged Plaintiff with the following offenses: three counts of Person Not to Possess, Use, Manufacture, Control, Sell or Transfer Firearm, 18 Pa.C.S. § 6105(a)(1); three counts of Possession with Intent to Deliver, 35 P.S. § 780-113(a)(30); one count of Criminal Conspiracy, 18 Pa.C.S. § 903(a)(1); three counts of Possession of a Controlled Substance, 35 P.S. 780.113(a)(16); and one count of Possession of Drug Paraphernalia, 35 P.S. § 780-113(a)(32). (Id. at p. 3.)
The Court takes judicial notice of the state court dockets related to Plaintiff's criminal case at MJ-1010-CR-379-2019 (the Magisterial District Judge docket) and CP-65-CR-4882-2019 (the Court of Common Pleas' docket), which are available to the public online at https://ujsportal.pacourts.us. (last visited July 6, 2021).
Plaintiff's state criminal case is pending before the Court of Common Pleas of Westmoreland County at docket number CP-65-CR-4882-2019. Attorney Joseph D. Pometto represents Plaintiff in his state criminal case. (See Common Pleas Court docket, Commonwealth v. Wilson, No. CP-65-CR-4882-2019 at p. 5.)
Plaintiff is proceeding pro se in this federal case, which he initiated in April 2020 by filing a civil rights complaint under 42 U.S.C. § 1983. In Plaintiff's original complaint (ECF No. 7), he raised claims concerning his conditions of confinement at the Westmoreland County Prison and the canceling of court dates because of the COVID-19 pandemic. He named as defendants the prison's warden, the Westmoreland County Courts, Westmoreland County and the Westmoreland County District Attorney's Office, but did not make factual allegations against the Westmoreland County District Attorney's Office in the body of the complaint. Plaintiff then filed an “addendum” (ECF No. 9) in which he complained about matters pertaining to his arrest but did not identify any individual who violated his rights.
The Court issued an order (ECF No. 10) directing Plaintiff to file an amended complaint that included all of his claims against all defendants he was suing in this civil action. The Court explained to Plaintiff that he must name in the caption of the amended complaint each defendant he is suing and assert all claims against them in the body of the amended complaint.
Plaintiff then filed the Amended Complaint (ECF No. 12), which is his operative pleading. He names as defendants: (1) Magisterial District Judge Joseph R. DeMarchis, who presided over his November 7, 2019 preliminary hearing; (2) Westmoreland County Assistant District Attorney (“ADA”) Jacquelyn A. Knupp, who represented the Commonwealth at that hearing; (4) Agent Rich Castagna with the Pennsylvania Office of Attorney General Bureau of Narcotics, who testified at that hearing; and (5) Officer Phillips, who arrested Plaintiff on September 12, 2019.
Judge DeMarchis, ADA Knupp and Agent Castagna have each moved to dismiss the claims asserted against him or her in the Amended Complaint with prejudice. (ECF Nos. 32, 41 and 44.) Officer Phillips has filed a partial motion to dismiss (ECF No. 38) in which he asserts that the Court should dismiss certain claims Plaintiff brings against him. Additionally, Officer Phillips requests that the Court stay this civil action until Plaintiff's state court criminal case is resolved at trial or on direct appeal.
After Plaintiff failed to comply with the Court's orders directing him to file a response to each defendant's motion to dismiss, the Court issued another order (ECF No. 50) extending the deadline for Plaintiff to file his responses. The Court also advised Plaintiff that his failure to comply with the Court's order would be construed as conveying his desire not to continue prosecution of this case.
Plaintiff then responded to the motions to dismiss filed by Officer Phillips (ECF No 51) and ADA Knupp (ECF No. 52). He did not respond to the motions to dismiss filed by Judge DeMarchis or Agent Castagna or request an extension. Thus, Plaintiff was twice ordered to file a response to the motions to dismiss of Judge DeMarchis and Agent Castagna but has failed to do so.
B. Factual Allegations in the Amended Complaint
Officer Phillips arrested Petitioner on September 12, 2019. (ECF No. 12, ¶ 1.) Plaintiff alleges that at the time of his arrest he “was standing outside of 507 Pine Street” in Jeannette, Pennsylvania and Officer Phillips pulled up in his police car with his firearm drawn and “hanging out the driver side” window. He ordered Plaintiff to “get on the ground.” Plaintiff complied with Officer Phillips' order. (Id.)
Plaintiff alleges that at the time of his arrest he was “not involved in any criminal activity” and was “acting lawfully.” He also alleges that he did not have any contraband or weapons on his person and “was not being investigated nor [was he] involved in any investigation” being conducted on September 12, 2019. Thus, Plaintiff claims, Officer Phillips lacked probable cause to arrest him. (Id.) Plaintiff also alleges that later that day he was illegally detained at the Jeanette Police Department, where his personal property was confiscated. He also claims he was not read his Miranda rights. (Id., ¶ 4.)
Plaintiff's detention hearing was held the next day. His bail was set at $50,000. He did not post bail and was transferred to the Westmoreland County Prison. (See Magisterial District Judge docket, Commonwealth v. Wilson, No. MJ-10101-CR-379-2019 at pp. 1-2.)
Plaintiff's preliminary hearing was originally scheduled for September 26, 2019. According to the allegations in the Amended Complaint, Plaintiff requested a continuance because he required more time to retain a private attorney. His preliminary hearing was rescheduled for October 17, 2019. Plaintiff requested a second continuance because he had not yet hired an attorney. (Id. at p. 1; ECF No. 12, ¶ 2.)
Plaintiff's preliminary hearing was held on November 7, 2019. (ECF No. 12, ¶ 2.) Judge DeMarchis presided over the hearing and ADA Knupp appeared on behalf of the Commonwealth. Plaintiff alleges that he requested another continuance because he needed more time to obtain private counsel and did not want to proceed pro se. (ECF No. 12, ¶ 2.) ADA Knupp opposed Plaintiff's request and Judge DeMarchis refused to grant Plaintiff a third continuance. (Id.) Plaintiff alleges that he “never received or signed any pro-se papers” indicating that he wanted to represent himself pro se at his preliminary hearing. (Id.)
Agent Castagna testified at the preliminary hearing. (Id., ¶ 3.) Plaintiff alleges that during his testimony Agent Castagna “gave false statements” that were “proven false by” Officer Phillips' “statements [that Plaintiff] was already outside…[and] was never in the house [located at 507 Pine Street].” (Id.) Plaintiff also alleges that Judge DeMarchis cut off his cross-examination of Agent Castagna. (Id.)
At the end of the preliminary hearing Judge DeMarchis held the charges filed against Plaintiff over for court. (Id.) The state court docket reflects that Attorney Pometto subsequently entered his appearance as Plaintiff's counsel and filed an omnibus pretrial motion which Common Pleas Court Judge Scott O. Mears denied on or around April 19, 2021. Plaintiff's criminal trial is currently scheduled for July 19, 2021. (See Common Pleas Court docket, Commonwealth v. Wilson, No. CP-65-CR-4882-2019 at pp. 6-9.)
The claims Plaintiff brings against Officer Phillips in the Amended Complaint turn on his allegation that the officer lacked probable cause to arrest him and therefore he has been illegal detained since his arrest, first at the Jeanette Police Department and then (and currently) at the Westmoreland County Prison. (Id., ¶¶ 1, 4; id. at p. 7.) He brings Fourth Amendment claims against Officer Phillips for false arrest and false imprisonment (which he also refers to as kidnapping.) Plaintiff also makes the conclusory allegations that Office Phillips engaged in official oppression, ethnic intimidation, and racial profiling. (Id., ¶ 1; id. at p. 7.)
Plaintiff's claims against Judge DeMarchis, ADA Knupp and Agent Castagna are premised upon the events at the November 7, 2019 preliminary hearing. He claims that ADA Knupp, by opposing his request for a third continuance, and Judge DeMarchis, by denying his request, violated his Sixth Amendment right to counsel and his Fourteenth Amendment right to due process. (Id., ¶ 2.) Plaintiff also claims that the introduction of Agent Castagna's alleged false testimony, and Judge DeMarchis' decision to limit Plaintiff's cross-examination of Agent Castagna, violated his due process rights. (Id., ¶ 3.)
As relief, Plaintiff seeks monetary damages of $7.5 million. He also seeks injunctive relief in the form of an order directing his immediate release from his alleged illegal imprisonment. (Id. at p. 9.)
C. Standard of Review
At the pleading stage, Rule 8 requires a “short plain statement” of facts, not legal conclusions, “showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). When dismissing a civil rights case for failure to state a claim, a court typically must allow a plaintiff to amend a deficient complaint, irrespective of whether it is requested, unless doing so would be “inequitable or futile.” Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007). “An amendment is futile if the amended complaint would not survive a motion to dismiss for failure to state a claim upon which relief could be granted.” Alston v. Suzuki, 227 F.3d 107, 121 (3d Cir. 2000).
The Supreme Court held that, pertaining to Rule 12(b)(6)'s standard of review, a complaint must include factual allegations that “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[W]ithout some factual allegation in the complaint, a claimant cannot satisfy the requirement that he or she provide not only ‘fair notice' but also the ‘grounds' on which the claim rests.” Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008).
In determining whether a plaintiff has met this standard, a court must reject legal conclusions unsupported by factual allegations, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements”; “labels and conclusions”; and “‘naked assertion[s]' devoid of ‘further factual enhancement.'” Iqbal, 556 U.S. at 678 (citations omitted). Mere “possibilities” of misconduct are insufficient. Id. at 679.
The Court of Appeals has summarized this inquiry as follows:
To determine the sufficiency of a complaint, a court must take three steps. First, the court must “tak[e] note of the elements a plaintiff must plead to state a claim.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1947, 173 L.Ed.2d 868 (2009). 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. Third, “whe[n] 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. This means that our inquiry is normally broken into three parts: (1) identifying the elements of the claim, (2) reviewing the complaint to strike conclusory allegations, and then (3) looking at the well-pleaded components of the complaint and evaluating whether all of the elements identified in part one of the inquiry are sufficiently alleged.Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).
“A document filed pro se is to be liberally construed and a pro se complaint, 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) (internal citation and quotation marks omitted); see also Higgs v. Att'y Gen., 655 F.3d 333, 339 (3d Cir. 2011) (“The obligation to liberally construe a pro se litigant's pleadings is well-established.”).
Additionally, under the screening provisions of the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (“PLRA”), courts are required to screen complaints at any time where, as is the case here, a prisoner has been granted leave to proceed in forma pauperis, 28 U.S.C. § 1915(e)(2)(B)(ii), and/or seeks redress from an officer or employee of a governmental entity. 28 U.S.C. § 1915A. As a result, if there is a ground for dismissal which was not relied on by a defendant in a motion to dismiss, the Court may nonetheless sua sponte rest its dismissal upon such ground pursuant to the screening provisions of the PLRA. See, e.g., Banks v. Cty. of Allegheny, 568 F.Supp.2d 579, 588-89 (W.D. Pa. 2008). In performing a court's mandated function of sua sponte reviewing complaints under the PLRA to determine if the plaintiff has failed to state a claim upon which relief can be granted, a federal district court applies the same standard applied to motions to dismiss under Rule 12(b)(6). Id.
D. Discussion
1. Plaintiff's Request for Release Is Not Cognizable Under § 1983
The injunctive relief Plaintiff seeks is an order from the Court that directs his immediate release from prison. The Court should dismiss Plaintiff's claim for injunctive relief pursuant to the PLRA's screening provisions.
The Supreme Court has held that “when a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus.” Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (emphasis added); see also Wilkinson v. Dotson, 544 U.S. 74, 81 (2005) (state prisoners may “use only habeas corpus (or similar state) remedies when they seek to invalidate the duration of their confinement-either directly through an injunction compelling speedier release or indirectly through a judicial determination that necessarily implies the unlawfulness of the State's custody.”)
While the federal habeas statute at 28 U.S.C. § 2254 applies to post-trial situations, the more general habeas corpus statute of 28 U.S.C. § 2241 provides federal courts with jurisdiction to issue a writ of habeas corpus in limited circumstances before a state judgment is rendered. See, e.g., Duran v. Thomas, 393 Fed.Appx. 3 (3d Cir. 2010) (quoting Moore v. DeYoung, 515 F.2d 437, 44546 (3d Cir.1975)); Breakiron v. Wetzel, No. 2:14-cv-570, 2015 WL 451167, *7 (W.D. Pa. Feb. 3, 2015).
Thus, it is recommended that the Court dismiss with prejudice Plaintiff's claim for injunctive relief in the form of an order directing his release from pretrial custody because he cannot obtain that relief in this civil rights action. Id.; see Wallace v. Fegan, 455 Fed.Appx. 137, 140 (3d Cir. 2011) (per curiam) (“[Plaintiff's] seeming challenge to pretrial incarceration seeks a remedy available only in habeas.”).
Officer Phillips also argues that the Court should abstain from considering Plaintiff's request for injunctive relief in the form of an immediate release under the abstention doctrine of Younger v. Harris, 401 U.S. 37 (1971). However, for the reasons discussed, Plaintiff's request for release from pretrial confinement is not cognizable under § 1983 and can be raised only in a habeas action. Thus, the Court need not consider Officer Phillips' Younger abstention argument about Plaintiff's request for immediate release from confinement. (The Court notes that whether to apply the Younger abstention doctrine may be relevant to a district court's evaluation of a § 2241 habeas petition brought by a state pretrial detainee. See, e.g., Moore, 515 F.2d at 447-49.)
2. Plaintiff's § 1983 Claims
Plaintiff's remaining claims for damages under § 1983 are asserted against the Defendants in both their individual and official capacities. “Section 1983 provides a cause of action against state actors who violate an individual's rights under federal law.” Filarsky v. Delia, 566 U.S. 377, 380 (2012). Section 1983 does not create substantive rights but instead “provides only remedies for deprivations of rights established elsewhere in the Constitution or federal laws.” Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). “To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).
A plaintiff must plead a defendant's personal involvement in the alleged deprivation of his constitutional right. See, e.g., Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). That is because, as stated in the text of § 1983 itself, only a person who “subjects, or causes to be subjected” another person to a civil rights violation can be held liable under § 1983. Thus, each defendant can be held liable only for his or her own conduct. See, e.g., id.; see also Parkell v. Danberg, 833 F.3d 313, 330 (3d Cir. 2016); Barkes v. First Correctional Medical, 766 F.3d 307, 316 (3d Cir. 2014) (rev'd sub. nom. on other grounds 575 U.S. 822 (2015)); C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159, 173 (3d Cir. 2005) (“To impose liability on the individual defendants, Plaintiffs must show that each one individually participated in the alleged constitutional violation or approved of it.”) (citing C.H. v. Oliva, 226 F.3d 198, 201-02 (3d Cir. 2000) (en banc)).
Additionally, official capacity claims are indistinguishable from claims against the entity that employs the officials. See Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (“Officialcapacity suits ... ‘generally represent only another way of pleading an action against an entity of which an officer is an agent.'”) (quoting Monell v. Dep't of Soc. Servs. of N.Y., 436 U.S. 658, 690, n. 55 (1978)). Thus, “an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.” Id.
a. Claims Against Judge DeMarchis
Plaintiff claims that Judge DeMarchis violated his Sixth Amendment right to counsel by denying his request to continue the November 7, 2019 preliminary hearing. Plaintiff also faults Judge DeMarchis for allegedly cutting off his cross-examination of Agent Castagna. (ECF No. 12, ¶ 2.) Judge DeMarchis moves to dismiss these § 1983 claims because he is entitled to absolute judicial immunity and Eleventh Amendment immunity. As discussed above, Plaintiff did not oppose Judge DeMarchis' motion.
Judge DeMarchis is correct that Plaintiff's § 1983 claims against him in his individual capacity are barred under the doctrine of absolute judicial immunity. See, e.g., Stump v. Sparkman, 435 U.S. 349, 355-56 (1978); Azubuko v. Royal, 443 F.3d 302, 303-04 (3d Cir. 2006) (per curiam); Gallas v. Supreme Court of Pennsylvania, 211 F.3d 760, 768 (3d Cir. 2000) (“judges are immune from suit under section 1983 for monetary damages arising from their judicial acts.”) This doctrine bars civil suits against judicial officers whose challenged actions were taken during their judicial activities and whose actions were not lacking jurisdiction. See, e.g., Mireles v. Waco, 502 U.S. 9, 11-12 (1991) (per curiam).
Plaintiff's allegations against Judge DeMarchis concern actions he took while presiding over a proceeding in his state criminal case and his alleged actions-refusing to grant Plaintiff a third continuance and limiting his cross-examination of Agent Castagna-are fundamental judicial acts that falls squarely within the jurisdiction of a Pennsylvania magisterial district judge. Thus, Plaintiff's claims against Judge DeMarchis in his individual capacity must be dismissed with prejudice. See, e.g., Smith v. Mansour, No. 2:19-cv-399, 2019 WL 3307219, *3 (W.D. Pa. June 28, 2019) (plaintiff's cause of action against a magisterial district judge pursuant to § 1983 for his role in holding a preliminary hearing and denying a postponement is barred by doctrine of absolute judicial immunity), report and recommendation adopted by 2019 WL 3307032 (W.D. Pa. July 22, 2019).
To the extent Plaintiff is bringing § 1983 claims against Judge DeMarchis in his official capacity, they are barred by the immunity afforded to the states by the Eleventh Amendment. Judge DeMarchis is a judicial officer of Magisterial District Court 10-1-01 of the Court of Common Pleas of Westmoreland County, an entity of the Unified Judicial System of Pennsylvania pursuant to 42 Pa.C.S. § 301(9) and, as such, part of the Commonwealth government. 42 Pa.C.S. § 102 (the term “Commonwealth government” includes “the courts and other officers or agencies of the unified judicial system” and the term “court” includes “any one or more of the judges of the court[.]”). Thus, Plaintiff's claim against Judge DeMarchis in his official capacity is in fact a claim against the Magisterial District Court over which he presides, a state entity. Graham, 473 U.S. at 165.
As part of Pennsylvania's unified judicial system, the Magisterial District Court shares in the Commonwealth's Eleventh Amendment immunity. See, e.g., Benn v. First Judicial Dist. of Pennsylvania, 426 F.3d 233, 241 (3d Cir. 2005) (holding that Pennsylvania's Judicial Districts are entitled to immunity from suit under the Eleventh Amendment). The Commonwealth has not waived its Eleventh Amendment immunity. Laskaris v. Thornburgh, 661 F.2d 23, 25 (3d Cir. 1981). As a result, Plaintiff's claim against Judge DeMarchis in his official capacity are barred by the Eleventh Amendment.
For these reasons, it is recommended that the Court grant Judge DeMarchis' motion to dismiss (ECF No. 41). Because it would be futile based on immunity grounds to permit Plaintiff to amend his claims against Judge DeMarchis, the dismissal should be with prejudice.
b. Claims Against ADA Knupp
Plaintiff's § 1983 claims against ADA Knupp hinge on his allegation that she violated his Sixth Amendment right to counsel by objecting to his request for a continuance, thereby “forcing” him to proceed pro se at the preliminary hearing. (ECF No. 12, ¶ 2.) Taking the allegations in the Amended Complaint as true and drawing all reasonable inferences in Plaintiff's favor, he may also be claiming that ADA Knupp violated his right to due process by introducing Agent Castagna's alleged false testimony at the preliminary hearing. In her motion to dismiss (ECF No. 32), ADA Knupp argues that Plaintiff failed to state a § 1983 claim against her because she is entitled to absolute immunity.
“While the Supreme Court has extended the defense of absolute immunity to certain prosecutorial functions, it has not blanketed ‘the actions of a prosecutor...merely because they are performed by a prosecutor.'” Fogle v. Sokol, 957 F.3d 148, 159 (3d Cir. 2020) (quoting Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993)). “Instead, courts must ‘focus upon the functional nature of the activities rather than [the prosecutor's] status' to determine whether absolute immunity is warranted.” Id. (quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976)). “Applying this functional approach, the Supreme Court has ‘emphasized that the official seeking absolute immunity bears the burden of showing that such immunity is justified for the function in question.'” Id. (quoting Burns v. Reed, 500 U.S. 478, 486 (1991)).
As the Court of Appeals recently explained in Fogle:
That functional test separates advocacy from everything else, entitling a prosecutor to absolute immunity only for work “intimately associated with the judicial phase of the criminal process.” Id. (quoting Imbler, 424 U.S. at 430, 96 S.Ct. 984). In that regard, the Court has found, for instance, that prosecutors are immune from claims arising from their conduct in beginning a prosecution, Imbler, 424 U.S. at 431, 96 S.Ct. 984, including “soliciting false testimony from witnesses in grand jury proceedings and probable cause hearings, ” Kulwicki v. Dawson, 969
F.2d 1454, 1465 (3d Cir. 1992), presenting a state's case at trial, Imbler, 424 U.S. at 431, 96 S.Ct. 984, and appearing before a judge to present evidence, Burns, 500 U.S. at 491-92, 111 S.Ct. 1934. See also Van de Kamp [v. Goldstein, 555 U.S. 335, 344, 129 S.Ct. 855 (2009)] (finding prosecutors absolutely immune from claims arising from conduct “directly connected with the conduct of a trial” that “necessarily require[d] legal knowledge and the exercise of related discretion”).
By contrast, a prosecutor's “investigatory functions that do not relate to an advocate's preparation for the initiation of a prosecution or for judicial proceedings are not entitled to absolute immunity.” Buckley, 509 U.S. at 273, 113 S.Ct. 2606 . Determining the precise function that a prosecutor is performing is a fact-specific analysis. For instance, “[a] prosecutor neither is, nor should consider himself to be, an advocate before he has probable cause to have anyone arrested.” Id. at 274, 113 S.Ct. 2606. Before probable cause for an arrest, a prosecutor's “mission at that time [i]s entirely investigative in character.” Id. “Of course, a determination of probable cause does not guarantee a prosecutor absolute immunity from liability for all actions taken afterwards. Even after that determination, ...a prosecutor may engage in ‘police investigative work' that is entitled to only qualified immunity.” Id. at 274 n.5, 113 S.Ct. 2606. It follows that when prosecutors function as investigators, rather than advocates, they enjoy no right to absolute immunity. Id. at 275-76, 113 S.Ct. 2606; see also Burns [v. Reed, 500 U.S. 478, 495, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991)] (observing that absolute immunity is not so “expansive” as to protect all “direct participation in purely investigative activity”); Kalina [v. Fletcher, 522 U.S. 118, 129-31, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997)] (declining to extend absolute immunity where a prosecutor makes a false statement of fact in an affidavit supporting an arrest warrant).Id. at 159-60.
ADA Knupp has met her burden of demonstrating that absolute immunity should attach to the alleged acts that form the basis for Plaintiff's § 1983 claims against her. Because her challenged conduct was performed as part of her prosecutorial function during a judicial phase of his criminal process, she is entitled to absolute immunity in her individual capacity from Plaintiff's claims against her.
To the extent Plaintiff is also suing ADA Knupp in her official capacity, the Court should dismiss this claim as well. As addressed above, a suit against ADA Knupp in her official capacity is a suit against the entity that employs her (i.e., the District Attorney's Office or, more specifically, Westmoreland County). Graham, 473 U.S. at 165-67. Any such suit would require allegations that Plaintiff was injured by a custom or policy promulgated by or accepted in that institutional entity that gave ADA Knupp the authority to act. See, e.g., Connick v. Thompson, 563 U.S. 51, 61 (2011); Monell, 436 U.S. at 691. Plaintiff's allegations pertaining to ADA Knupp do not implicate any alleged custom or policy promulgated by her employer. Rather, they depend entirely on the specific conduct in which she allegedly engaged at the preliminary hearing. As such, although Plaintiff states in the Amended Complaint that he was suing ADA Knupp in both her individual and official capacities, her alleged conduct does not implicate an official capacity claim.
The Westmoreland County District Attorney's Office is not a legal entity capable of being sued and “[t]he proper defendant in a § 1983 claim asserted based upon the actions of a district attorney's office is the municipality of which the office is a subunit.” Brock v. Allegheny Cnty. Dist. Attorney Office, No. 12-cv-914, 2013 WL 3989452, *3 (W.D. Pa. 2013) (citing Reitz v. Cnty. of Bucks, 125 F.3d 139, 146, 148 (3d Cir. 1997) and Briggs v. Moore, 251 Fed.Appx. 77, 79 (3d Cir. 2007)).
In his response (ECF No. 52) in opposition to ADA Knupp's motion, Plaintiff's argues that she engaged in a conspiracy with Officer Phillips to “maliciously prosecute” him. (Id. at p. 1.) In support of this assertion Plaintiff cites the transcript of his preliminary hearing (which he attached to his response) and contends that it shows that ADA Knupp engaged in “malicious actions by interrupting” Plaintiff and also by “forcing” him to go forward with the hearing without counsel. (Id. at p. 2.)
Plaintiff's arguments lack merit. First, he did not allege in the Amended Complaint that ADA Knupp conspired with Officer Phillips to “maliciously prosecute” him. Statements he makes in response to a motion to dismiss cannot amend the complaint. Commonwealth of Pa. ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988) (“It is axiomatic that the complaint may not be amended by the briefs in opposition to a motion to dismiss.”) (internal marks and citation omitted); Bracken v. Cnty. of Allegheny, No. 2:16-cv-171, 2017 WL 5593451, at *2 (W.D. Pa. Nov. 21, 2017) (“A pleading may not be amended by a brief in opposition to a motion to dismiss.”). In addition, it would be futile to permit Plaintiff to amend his complaint to assert these allegations against ADA Knupp because they cannot survive dismissal. Setting aside the conclusory legal assertions Plaintiff makes in his response that that ADA Knupp “conspired” to “maliciously prosecute” him, the only factual assertions that Plaintiff makes in support are that she interrupted him at the preliminary hearing and opposed his request for a continuance. As explained above, ADA Knupp is entitled to absolute prosecutorial immunity for claims premised on her actions at the preliminary hearing.
The Court also notes that Plaintiff has no claim for malicious prosecution unless and until the criminal proceedings against him are resolved in his favor. Heck v. Humphrey, 512 U.S. 477 (1994); see, e.g., Halsey v. Pfeiffer, 750 F.3d 273, 296-97 (3d Cir. 2014) (a malicious prosecution claim requires the following five elements: (1) the defendant initiated a criminal proceeding; (2) the criminal proceeding terminated 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).
For these reasons, it is recommended that the Court grant ADA Knupp's motion (ECF No. 32) and dismiss with prejudice Plaintiff's claims against her because they are barred by the doctrine of absolute immunity.
c. Claim Against Agent Castagna
The only claim that Plaintiff asserts against Agent Castagna turns on the allegation that he made false statements when he testified at the preliminary hearing. In his motion to dismiss (ECF No. 44), Agent Castagna contends that the Amended Complaint fails to state a § 1983 claim against him because he is absolutely immune from liability for damages based on the testimony he gave during Plaintiff's criminal prosecution. Plaintiff did not oppose Agent Castanga's motion.
Agent Castagna also argues that any claim against him is barred by the favorable termination rules set forth in Heck v. Humphrey, 512 U.S. 477 (1994). It would be premature to consider that argument because Plaintiff is currently a pretrial detainee. See, e.g., Wallace v. Kato, 549 U.S. 384, 393-94 (2007); Noble v. City of Erie, No. 18-cv-6, 2018 WL 4963614, *2 (W.D. Pa. Oct. 15, 2018). In any event, the Court need not address that argument because Agent Castagna is clearly immune from claims that stem from his alleged false testimony at the preliminary hearing.
Agent Castagna is correct that Plaintiff cannot premise his § 1983 claim on his alleged act of providing false testimony at the preliminary hearing. It is well established that a witness is absolutely immune from damages under § 1983 based on his or her testimony in court. Briscoe v. LaHue, 460 U.S. 325, 326 (1983); Williams v. Hepting, 844 F.2d 138, 140-41 (3d. Cir. 1988) (extending the immunity discussed in Briscoe to pretrial proceedings); DeForte v. Blocker, No. 2:16-cv-113, 2017 WL 1102655, *7 (W.D. Pa. Mar. 24, 2017) (the plaintiff “cannot premise his § 1983 claim on [state trooper's] alleged act of providing false testimony at the preliminary hearing.”) Additionally, to the extent that Plaintiff is bringing an official capacity claim for damages against Agent Castagna, it is barred by Eleventh Amendment immunity since he is employed by a state agency. Graham, 473 U.S. at 165-67.
Based upon the foregoing, it is recommended that the Court grant Agent Castagna's motion to dismiss (ECF No. 44). The dismissal should be with prejudice because Plaintiff cannot pursue a § 1983 claim for damages against Agent Castagna in either his individual or official capacity for the alleged false testimony he gave at the preliminary hearing.
d. Claims Against Officer Phillips
Plaintiff claims in the Amended Complaint that Officer Phillips lacked probable cause to arrest him. He brings Fourth Amendment claims against Officer Phillips such as false arrest and false imprisonment. Plaintiff also makes the conclusory allegations that Office Phillips engaged in official oppression, ethnic intimidation, and racial profiling. (ECF No. 12, ¶¶ 1, 4; id. at p. 7.)
In his motion to dismiss (ECF No. 38), Officer Phillips argues that the Court first should dismiss Plaintiff's claims of official oppression, ethnic intimidation and racial profiling. In his accompanying motion to stay (also at ECF No. 38), Officer Phillips maintains that the Court then should stay this civil action-which at that point would consist only of Plaintiff's § 1983 damages claims against him for the “Fourth Amendment-themed claims” that he lacked probable cause to arrest-until Plaintiff's state court criminal case is resolved at trial or on direct appeal. See, e.g., Wallace, 549 U.S. at 393-94 (“if a plaintiff files a false arrest claim before he has been convicted…it is within the power of the district court, and in accordance with common practice, to stay the civil action until the criminal case or the likelihood of a criminal case is ended.”) Officer Phillips explains that staying this civil action pending the results of Plaintiff's criminal case is necessary under Heck v. Humphrey's favorable termination rule and for issue preclusion purposes. See, e.g., Noble, No 18-cv-6, 2018 WL 4963614, *2-3 (staying prisoner's § 1983 action for various Fourth Amendment violations, including for false arrest and false imprisonment, pending the disposition of his state criminal proceedings).
Plaintiff does not oppose the dismissal of either his official oppression or ethnic intimidation claims. He also does not oppose Officer Phillips' motion to stay. However, in his response to Officer Phillips' motion (ECF No. 51), Plaintiff argues that his racial profiling claim should not be dismissed. In support, he asserts that Officer Phillips racially profiled him because he arrested him only “because he was a Black man on Pine Street at the time” the officer pulled up. (Id. at pp. 1-2.) Although Plaintiff attaches to his response a search warrant issued on the day of his arrest. (ECF No. 51-1 at p. 2), he cannot amend his complaint by making new allegations in his response to the motion to dismiss. Commonwealth of Pa. ex rel. Zimmerman, 836 F.2d at 181; Bracken, No. 2:16-cv-171, 2017 WL 5593451, at *2. Moreover, the Court cannot consider the search warrant in resolving the motion to dismiss since it was not attached as an exhibit to the Amended Complaint. See, e.g., Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014) (in ruling on a Rule 12(b)(6) motion, courts generally consider only the complaint, attached exhibits, and matters of public record.)
Even if Plaintiff had opposed the dismissal of either his official oppression or ethnic intimidation claims, they lack merit. To the extent that Plaintiff is asserting a state law cause of action against him for either ethnic intimidation or official oppression-which in actuality are two crimes under the Pennsylvania Crimes Code-the Court should dismiss those claims with prejudice because they are not cognizable private causes of action under Pennsylvania law. See, e.g., William v. Wetzel, 827 Fed.Appx. 158, 162 (3d Cir. 2020) (concluding that to the extent plaintiff sought to bring stand-alone civil claims under the Pennsylvania Crimes Code, including for official oppression, “the District Court did not err in rejecting those claims on the basis that [Plaintiff] failed to identify a private right of action[.]”); Isaac v. Marsh, 1:20-cv-1993, 2020 WL 6504637, *5 (M.D. Pa. Nov. 5, 2020) (ethnic intimidation and official oppression are criminal acts under Pennsylvania's Crime Code that lack corresponding private causes of action).
Turning to the racial profiling claim, to state a Fourteenth Amendment equal protection claim based on selective enforcement or racial profiling, Plaintiff must make plausible allegations that Officer Phillips' actions (1) had a discriminatory effect and (2) were motivated by a discriminatory purpose. See, e.g., Bradley v. United States, 299 F.3d 197, 205 (3d Cir. 2002); Carrasca v. Pomeroy, 393 F.3d 828, 834 (3d Cir. 2002). For the purpose of the first prong of this inquiry, a plaintiff must “show that [he] is a member of a protective class and that [he] was treated differently from similarly situated individuals in an unprotected class.” Id. at 206.
The Amended Complaint contains only the conclusory allegation of racial profiling and is devoid of any factual allegations to support such a claim. Consequently, the Amended Complaint does not state a plausible claim for racial profiling and thus that claim should be dismissed. However, because the Court cannot conclude at this time that it would be futile to permit Plaintiff to amend his complaint to cure his deficient pleading, the dismissal of the racial profiling claim should be without prejudice.
For these reasons, it is recommended that the Court grant Officer Phillips' partial motion to dismiss (ECF No. 38). The Court should grant the motion with respect to Plaintiff's ethnic intimidation and official oppression claims and dismiss those claims with prejudice. The Court also should grant the motion as it pertains to Plaintiff's racial profiling claim, which should be dismissed without prejudice.
It is further recommended that the Court dismiss Officer Phillips' motion to stay without prejudice to refiling it if that Plaintiff either: (1) opts not to file another amended complaint and instead chooses to proceed only with the Fourth Amendment false arrest and false imprisonment claims in the Amended Complaint; or (2) chooses to files a second amended complaint in which he may, for the reasons set forth above, name only Officer Phillips as a defendant and bring only his Fourth Amendment false arrest and false imprisonment claims and a claim for racial profiling. III. Conclusion
It is respectfully recommended that the Court:
1. grant the motions to dismiss filed by Judge DeMarchis (ECF No. 41), ADA Knupp (ECF No. 32) and Agent Castagna (ECF No. 44) and dismiss each of them with prejudice from this lawsuit;
2. grant the partial motion to dismiss filed by Officer Phillips (ECF No. 38) and dismiss Plaintiff's ethnic intimidation and official oppression claims with prejudice and dismiss his racial profiling claim without prejudice; and
3. dismiss without prejudice Officer Phillips' motion to stay (ECF No. 38).
Pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Civil Rules, the parties are allowed fourteen (14) days from the date of this Order to file objections to this Report and Recommendation. Failure to do so will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011).