MARK A. KEARNEY, District Judge.
Depending on the crime, a judge may sentence the convicted defendant to probation in lieu of jail time. If the judge finds probation warranted, she will set specific terms for probation including reporting to the probation officer for status updates. Our society, through the criminal justice system, relies upon the state probation officers to monitor persons on probation and enforce court sentences. Failure to honor probation terms may result in a judge revoking probation after hearings and sentencing the convicted defendant to jail. When a citizen fails to comply with his probation obligations including to report, he should expect the probation officer may seek a bench warrant to return him to the judge for a hearing on violating probation. Otherwise, the convicted defendant may ignore the penalty for his crime. We today address frequent civil rights litigant Charles Talbert's challenge to a thirty-day jail sentence imposed by a state court judge for violating a probation sentence by failing to report to the probation officer. Charles Talbert now sues his probation officer claiming her arrest of him for violating probation violates his First, Fourth and Fourteenth Amendment rights because she lacked probable cause. We must dismiss his claims seeking to overturn final findings in the state criminal court. He also fails to state a claim in this third attempt at suing his probation officer in this Court and we dismiss his second amended complaint with prejudice.
On June 6, 2018, a Pennsylvania state court found Charles Talbert guilty of harassment and the state court judge sentenced him to three months of probation.
Less than two weeks later, Mr. Talbert pro se sued Officer Ciglar for First Amendment retaliation and abuse of process alleging Officer Ciglar threatened to have him arrested if he did not report to her office on June 15, 2018
On July 30, 2018, the state court judge revoked Mr. Talbert's probation for violating its terms and sentenced him to thirty-days incarceration.
In his third attempt at a complaint, Mr. Talbert now alleges Officer Ciglar misused the state court's process by issuing a bench warrant for his arrest in retaliation for Mr. Talbert exercising his First Amendment right to file this case against her.
Officer Ciglar moves to dismiss Mr. Talbert's second amended complaint arguing (1) his claims are barred by the Heck doctrine and (2) Mr. Talbert fails to plausibly plead facts to support the claims.
To survive dismissal, a plaintiff enjoying in forma pauperis status must satisfy 28 U.S.C. § 1915(e)(2)(B)(ii), the same standard as a motion to dismiss under Fed. R. Civ. P. 12(b)(6).
An individual may sue state actors for violating constitutional rights under 42 U.S.C. § 1983.
Officer Ciglar argues Mr. Talbert's claims should be dismissed as barred by the Heck doctrine or, more specifically, the state court's revocation of Mr. Talbert's probation. In Heck v. Humphrey, the Supreme Court held "to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed, expunged, declared invalid, or called into question by a federal court's issuance of a writ of habeas corpus."
Our Court of Appeals applies Heck to claims against probation and parole officers relating to revocation and denial proceedings.
Each of Mr. Talbert's claims in this action stem from his belief he did not violate the rules of his state court probation. The state court judge disagreed. Mr. Talbert has not appealed this ruling in state court. His probation violation conviction stands. Mr. Talbert does not prove favorable termination of his probation violation conviction, and review of his public record criminal docket does not indicate it has been reversed, expunged, declared invalid, or called into question by a writ of habeas corpus.
Even if Heck did not apply, Mr. Talbert's complaint fails to state a plausible claim to relief. In liberally construing Mr. Talbert's complaint, he alleges claims under the First, Fourth, and Fourteenth Amendments: false arrest, false imprisonment, malicious prosecution, retaliation, abuse of process, and equal protection.
Mr. Talbert initially alleged Officer Ciglar retaliated against him for filing a petition for post-conviction relief and challenging whether his probation required him to report to her office by threatening to have Mr. Talbert arrested if he did not report. We found those allegations insufficient to establish a retaliation claim.
Mr. Talbert now asserts Officer Ciglar retaliated against him for filing this case. To establish a First Amendment retaliation claim, Mr. Talbert must allege "(1) he engaged in First Amendment protected activity, (2) the defendant took adverse action sufficient to deter a person of ordinary firmness from exercising his First Amendment rights, and (3) the adverse action was prompted by the plaintiffs protected activity."
Mr. Talbert again does not satisfy the second and third prongs of a retaliation claim. In his third attempt, Mr. Talbert again fails to plead facts showing an adverse action taken by Officer Ciglar in response to his filing this action against her. To the extent Mr. Talbert would argue his arrest constituted Officer Ciglar's adverse action, Mr. Talbert alleged in his original complaint Officer Ciglar advised he would be arrested if he did not report to her office. He sued her for this notice. As he judicially admitted, Officer Ciglar provided notice of the result for failing to honor probation. There is no plausible basis to find a First Amendment claim because Officer Ciglar arrested Mr. Talbert for violating probation after he sued her for telling him he would be arrested if he violated probation.
Mr. Talbert pro se alleges (in different variations) Officer Ciglar acted without probable cause resulting in a false arrest, false imprisonment, and malicious prosecution.
Mr. Talbert fails to plead facts showing Officer Ciglar revoked his probation without probable cause. Rather, Mr. Talbert's criminal docket confirms probable cause existed for revoking his probation. Mr. Talbert had ample opportunity to allege the absence of probable cause in his Gagnon hearings at the state level.
We previously considered and dismissed Mr. Talbert's abuse of process claim.
Mr. Talbert again fails to allege facts suggesting the Commonwealth initiated the prosecution legitimately and then used for a purpose other than intended by the Law. Mr. Talbert instead argues Officer Ciglar improperly initiated the revocation proceedings simply because, in his view, he did not violate probation. Though Mr. Talbert alleges Officer Ciglar "misused the court's process by issuing a bench warrant for Plaintiffs' arrest, for a purpose other than that intended by law", threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.
Mr. Talbert fails to plead a plausible claim for abuse of process under the Fourteenth Amendment against Officer Ciglar.
Mr. Talbert alleges Officer Ciglar violated his Fourteenth Amendment right to equal protection of the law.
Mr. Talbert alleges Officer Ciglar "intentionally, and maliciously, treated [Mr. Talbert] differently than others similarly situated, therefore violating [Mr. Talbert's] Fourteenth Amendment right to equal protection of the law.
We dismiss Mr. Talbert's second amended Complaint with prejudice under Heck v. Humphrey and because he fails to plead a claim under 28 U.S.C. § 1915(e)(2)(B)(ii). We deny Officer Ciglar's request to revoke Mr. Talbert's in forma pauperis status as moot.
