GENE E.K. PRATTER, District Judge.
Jason Collura brings 42 U.S.C. § 1983 claims against Nicholas James Ford, Mary Politano, Steffen Boyd, Steven Austin, Charles Hoyt, and Robert Malvesuto ("Defendants" or "Probation Officer Defendants") for alleged violation of his due process, First Amendment, and Fourth Amendment rights, as well as several incidental state law claims. In the absence of timely responses to Mr. Collura's Complaint, the Clerk of Court entered default against the Defendants and in favor of Mr. Collura.
The central issue now before the Court is whether to set aside the Clerk's entry of default. The parties have, in effect, cross-moved on the issue: after the entry of default, the Probation Officer Defendants appeared and moved to set aside the entry of default (Docket No. 18). Mr. Collura subsequently filed a Motion for Default Judgment (Docket No. 21). He later filed a Motion for Full or Partial Judgment on the Pleadings (Docket No. 58).
For the reasons set forth below, the Court lifts the entry of default and denies Mr. Collura's Motion for Default Judgment and Motion for Judgment on the Pleadings. The Court also strikes several of the "affirmative defenses" in Defendants' Amended Proposed Answer with instructions to file an accordingly modified Answer.
Finally, the Court resolves several other pending motions filed by Mr. Collura that seek reconsideration and, potentially, recusal; disqualification of opposing counsel; the striking of sealed defense exhibits; and an ECF account.
The Court lays out the facts of this case according to the differing perspectives of Mr. Collura and the Probation Officer Defendants before describing the relevant phases of the case's procedural history. The lengthy recitations appear here because of the role that factual assertions have in the considerations the Court must balance in the context of several of the pending motions.
At his scheduled April 12, 2012 probation meeting, Mr. Collura discovered that he had a new probation officer, Defendant Nicholas Ford, who "start[ed] giving attitude to [Mr. Collura] from virtually second one" and then got "more and more abrasive and demanding," at which point Mr. Collura responded, that "there was no issue" with his "coming in today" and that "he knows probation law" and "his rights will not be violated." Compl. ¶ 13. Mr. Ford allegedly replied, "ok you wanna be smart, here you have a urine (drug test)." Compl. ¶ 13. Mr. Collura objected.
Not happy that Mr. Collura was "sticking up for himself," Mr. Ford told Mr. Collura that his reporting time, which previously was every two months, would now be weekly. Compl. ¶ 13. The two then began to argue, and Mr. Ford eventually told Mr. Collura that he was "going to have [Collura] locked up," Compl. ¶ 13, and that Mr. Collura was "going to be stuck with" Mr. Ford, who would "give [Mr. Collura] a unit evaluation and . . . hit [him] with conditions" that Mr. Collura would be unable to meet and thus "wind up not reporting," with the end result of "incarceration for non-compliance," Compl. ¶ 14, at 14. Mr. Collura replied that this threatened evaluation "would come up in a negative result," at which point Mr. Ford retorted that a CJC
Mr. Collura, who had earlier demanded to speak with a supervisor, protested that this situation was unfair "because the eval has to be fair if it is taken." Compl. ¶ 14. Steffan Boyd, a supervisor, arrived and listened to Mr. Collura's account of "Ford's behavior" but did "nothing at all, except change the report time from Ford's 1 week to 1 month." Compl. ¶ 14. Mr. Ford then informed Mr. Collura that Mr. Ford would email the judge for an evaluation date and order. Mr. Collura asked for at least 20 days['] notice and notified Mr. Ford that he would be filing a complaint regarding their conversation, including, specifically, "the illogical eval demand." Compl. ¶ 14, at 15. Mr. Collura "then took the drug screening in the building and passed." Compl. ¶ 14, at 15.
Later that day, Mr. Collura called Mr. Boyd and left a message "to file a grievance about" (1) Mr. "Ford and his disturbing behavior including threatening to lock [Mr. Collura up] for a bogus reason"; (2) Mr. Collura's demand for a change of probation officers; (3) the change in his reporting frequency; and (4) "the evaluation situation." Compl. ¶ 15. Mr. "Boyd did nothing." Compl. ¶ 15.
Mr. Collura reported again on May 10, 2012. Compl. ¶ 16. Mr. Ford told Mr. Collura that no judge had responded to Mr. Ford's email regarding scheduling an evaluation, and Mr. Collura again requested 20 days' notice. Mr. Ford again refused to entertain Mr. Collura's complaints about the evaluation in general, or about Mr. Collura's reporting frequency. Mr. Ford gave Mr. Collura another drug test, which Mr. Collura again passed. Compl. ¶ 16.
On May 31, 2012, Mr. Collura attempted to telephone another supervisor, Steven Austin, who did not pick up. Mr. Collura "left a message simply stating his first name and [that] he had important issues that needed to be resolved and left his contact number." Mr. Austin did not call Mr. Collura back. Mr. Collura tried again, unsuccessfully, to reach Mr. Austin on June 11, 2012. Compl. ¶ 17. Mr. Collura "left a message that he had left one earlier that was ignored, has several important issues that need attention, and if he continued to fail to do his job then [Mr. Collura] would go [back] to his supervisor and if needed get a lawyer involved." Compl. ¶ 17. Mr. Collura withheld any details or names "because that as for a live conversation," so Mr. "Ford did not know there was a complaint about him being made to Austin." Compl. ¶ 17.
Mr. Collura reported again on June 7, 2012, at which point a different probation officer appeared and told Mr. Collura that Mr. Ford was not in that day and that Mr. "Ford has [Mr. Collura] down for the 12th," notwithstanding that Mr. Collura's "signed card" said June 7. Compl. ¶ 18, at 17. The unidentified probation officer further stated that Mr. Ford "was planning to tell [Mr. Collura] on the 12th about a unit evaluation on the 13th." Compl. ¶ 18, at 17. Mr. Ford then appeared and claimed that there had been a "misunderstanding," and that Mr. Ford "had [Mr. Collura] down for the 13th." Compl. ¶ 18, at 17. Further, Mr. Ford told Mr. Collura that, on May 11, 2012, Mr. Boyd had "set up a date for the evaluation which was June 13th at 12 p.m." Compl. ¶ 18, at 17.
Mr. Collura then asked Mr. Ford if Mr. Ford was planning to tell him "on the 12th at 4:00 p.m. about an evaluation 19 hours later," and Mr. Ford "said yes," thereby confirming, in Mr. Collura's estimation, Mr. Ford's intent to give him only "19 hours['] notice." Compl. ¶ 18, at 17. In fact, Mr. Boyd had given Mr. Ford a form that stated, "I have not contacted the p/p about his appointment. You will need to do that." Compl. ¶ 18, at 17. The meeting ended with Mr. Ford telling Mr. Collura that such evaluations could only be rescheduled once, but, nonetheless, telling Mr. Collura (1) that the evaluation could not be rescheduled and (2) to call him. Compl. ¶ 18, at 18. Mr. Ford refused to give his email address to Mr. Collura for rescheduling purposes or otherwise. Compl. ¶ 18, at 18.
On June 11, 2012, Mr. Collura called the evaluation unit to confirm whether he had an appointment. Compl. ¶ 19, at 18. Although Mr. Collura knew no one in the evaluation unit, he "expected a problem with [the evaluation]" because of Mr. Boyd's and/or Mr. Ford's involvement. Compl. ¶ 19, at 18. Mr. Collura first spoke with "a clerk," who was "extremely rude, loud, belligerent, [and] said she didn't know anything about scheduling, who does it, how to reschedule, nothing." Compl. ¶ 19, at 18. At his request to speak with a supervisor, Mr. Collura was transferred to Mary Politano, whose supervisor, like Mr. Ford's, was Mr. Boyd. Compl. ¶ 19, at 19. Ms. Politano "picked up where the clerk left off in terms of loudness[,] attitude[,] and rudeness," but eventually informed Mr. Collura that after "trial a probation supervisor can request a unit evaluation," whereas "pre-trial . . . only a judge can." Compl. ¶ 19, at 19.
Mr. Collura attempted, over Ms. Politano's "cut offs and . . . talking," to "explain[] his situation in detail" and "simply request[] to reschedule the evaluation." Compl. ¶ 19, at 19. The two continued to argue about whether Mr. Collura was in fact on the list, and, if so, for which date, and Ms. Politano ultimately told Mr. Collura that she could not do anything to reschedule the appointment, because the probation officers, rather than the evaluation unit, were responsible for scheduling the evaluations. Compl. ¶ 19, at 19-20. The appointment was neither canceled nor rescheduled. Compl. ¶ 19, at 20. The next day, on June 12, 2012, Mr. Collura left a message with Ford regarding how to reschedule the appointment and informing Ford that Mr. Collura would need "at least 20 days' notice." Compl. ¶ 20.
On June 14, 2012, Mr. Austin called Mr. Collura. Compl. ¶ 22, at 20. The call quickly devolved into an argument when Mr. Collura attempted to explain his grievances and Mr. Austin persisted in asking, instead, "why [Mr. Collura] was complaining to him." Compl. ¶ 22, at 20-21. The call ended with no resolution. Compl. ¶ 22, at 21. Mr. Austin later called back and "left a message claiming that he was willing to talk if he got his way." Compl. ¶ 22, at 21. Mr. Collura returned this call later the same day and left his own "message detailing the . . . grievance" and "relay[ing] with precision everything above that was told to Boyd, Ford's behavior, a p/o change, a report time rest, correcting the evaluation situation, and more, including a complaint about Boyd who failed to do his job correctly." Compl. ¶ 22, at 21. Because Mr. Austin's voicemail was "set to about 90 seconds," Mr. Collura "had to use more than [one] recording to get the facts, issues, and relief requested" conveyed to Mr. Austin. Compl. ¶ 22, at 21.
On June 15, 2012, Mr. Austin informed Messrs. Ford and Boyd of Mr. Collura's complaints about them. Compl. ¶ 23, at 21. At this point, Mr. Ford "drafted up a bogus warrant request which Boyd signed off on, then emailed to [the judge,] who instantaneously issued a probation violation bench warrant that was one hundred percent retaliation, as there was no violation of probation that occurred." Compl. ¶ 23, at 21. Mr. Collura was unaware of the warrant. Compl. ¶ 24, at 22.
On June 18, 2012, at about 4:00 PM, Mr. Collura saw that Mr. "Ford had just called his phone," and knew that Mr. Ford and Mr. Austin had spoken because "[o]nly Austin was given the number to that phone." Compl. ¶ 24, at 22. Mr. Ford did not leave a message. Compl. ¶ 24, at 22.
On June 19, 2012, Mr. Ford called Mr. Collura about Mr. Collura's "missed appointment" and Mr. Collura's "message that [he] needed to reschedule." Compl. ¶ 25. When Mr. Collura inquired about the "missed appointment," Mr. Ford responded that it was "`[his] fault' and `don't worry about it.'" Compl. ¶ 25. Mr. Ford then told Mr. Collura that "he wanted [Mr. Collura] to come in to get a new evaluation date," but Mr. Collura responded that he had "no plans to come in before the [next] required time of July 12th, and he needs it in writing to begin with." Compl. ¶ 25. Mr. "Ford never mentioned the bogus warrant in the conversation." Compl. ¶ 25.
On June 20, 2012, Mr. Collura "got wind of the warrant[] on his own" and called Mr. Boyd and left a message "demanding the bogus warrant be removed, the underlying facts, [and] a p/o change request." Compl. ¶ 26, at 23. Mr. Collura also "did the same with [Mr.] Austin." Compl. ¶ 26, at 23. Then, in late June, attorney Patrick Link reached out to Mr. Ford, who "refused to tell [Mr. Link] why the warrant was issued [or] give him a summary sheet [or] anything in writing," Compl. ¶ 26, at 23., although, apparently, Mr. Ford said that he was "going to remove the . . . warrant," Compl. ¶ 26, at 24. Further, Mr. Ford spoke to Mr. Link "about an evaluation date rescheduling" and told Mr. Link that "he wanted [Mr. Link and Mr. Collura] to come down to the office on Arch [S]treet to take the evaluation." Compl. ¶ 26, at 23-24. To look further into the evaluation issue, Mr. Collura again spoke to Ms. Politano, who was "uncooperative." Compl. ¶ 26, at 24.
Mr. Collura and Mr. Link went to meet with Mr. Ford on July 3, 2012, and Mr. Ford indicated that he would "take the bogus warrant off." Compl. ¶ 27. Mr. Ford then said that he would "have a new date for the evaluation within 10 days" and that he would notify both Mr. Collura and Mr. Link in writing. Compl. ¶ 27. Mr. Collura's next reporting date was to be August 7, 2012. Compl. ¶ 27.
The next time Mr. Collura heard from Mr. Ford, however, was on August 2, 2012, at about 10:30 AM, when Mr. Collura received in the mail a violation of probation notice ("Gagnon II Hearing Summary") for a hearing scheduled for August 3, 2012, at 9:00 AM. Compl. ¶ 28. The mailing date on the envelope was July 30, 2012. Compl. ¶ 28. Mr. Collura received notice only 23 hours before the scheduled hearing, Mr. Collura alleges, notwithstanding the fact that Mr. Ford had had the hearing scheduled on July 3 or July 5, 2012. Compl. ¶ 28.
Mr. Collura managed to reschedule the state court hearing for August 14, 2012. Compl. ¶ 30, at 26. On August 2, 2012, Mr. Collura also "filed a grievance in writing with Deputy Chief Charles Hoyt and Chief Robert Malvesuto" regarding all the events described above. Compl. ¶ 30, at 26. Mr. Collura also unsuccessfully attempted to call Mr. Hoyt. Neither Mr. Hoyt nor Mr. Malvesuto took any action. Compl. ¶ 30, at 26.
On August 7, 2012, Mr. Collura reported as scheduled. When Ford asked him if he had any questions, Mr. Collura replied, "No, you[r] actions speak for themselves." Compl. ¶ 31, at 27. In response, Mr. Ford became angry and yelled, "I'm going to put you in jail" and threatened to call the warrant unit if Mr. Collura left the booth. Mr. Ford refused to give Mr. Collura the hearing summary sheet, and Mr. Boyd, then arriving, asked whether Mr. Collura "wrote a letter to Hoyt." Compl. ¶ 31, at 27. When Mr. Collura "demanded the hearing sheet from [Mr.] Boyd, [Mr. Boyd] said ask for it at the hearing." Compl. ¶ 31, at 27. The meeting ended with Mr. Collura asking for a normal reporting date and Mr. Ford signing Mr. Collura's card to indicate that the next reporting date would be the August 14, 2012 violation of parole hearing. Compl. ¶ 31, at 28.
At the August 14, 2012 hearing, notwithstanding Mr. Ford's protestations that the hearing should proceed, the judge continued the hearing to September 26, 2012, due to an issue with counsel (presumably counsel's need to prepare for the hearing). Compl. ¶ 32. Mr. Collura approached Mr. Ford to ask about his next reporting date, and Mr. Ford signed Mr. Collura's card to indicate that the September 26, 2012 hearing would be Mr. Collura's next reporting date. Compl. ¶ 32.
Mr. Collura describes how Mr. Ford's summary of the events leading up to his alleged violation of probation was false, and how Mr. Ford failed to mention a number of events. See Compl. ¶ 33, at 29-31.
On September 26, 2012, when Mr. Collura arrived for his violation of probation hearing, he "was immediately informed it was canceled, [and] the court crier said `your p/o is mad at you,'" probably because Mr. Collura had appealed his case. Compl. ¶ 34. Mr. Collura called Mr. Ford and left a message, and then waited 90 minutes, but neither Ford nor any other probation officer appeared. Compl. ¶ 34.
On October 10, 2012, Mr. Collura received an "arrest warrant warning" postmarked October 2, 2012, and indicating that it was created on September 28, 2012. Compl. ¶ 35, at 31. The warning stated that Mr. Collura had "failed to report to [his] probation[] officer as required," Compl. ¶ 35, at 31-32, and explained that "[t]he arrest warrant will be issued on October 10, 2012," Compl. ¶ 35, at 32. Mr. Collura then contacted the CJC and ascertained that Mr. Ford had made a warrant request, which was declined, on October 6, 2012. Further, "[t]he standard operating procedure of the probation department is it has to be two missed office visits before any type of action can be requested." Compl. ¶ 35, at 32. When Mr. Collura called Mr. Ford on October 10, 2012, Mr. Ford informed him that Mr. Collura had until October 25, 2012, to come in, but refused to send this message in writing. Compl. ¶ 35, at 32.
When Mr. Collura met with Mr. Ford on October 25, 2012, Mr. Ford told him that he was going to request a violation of probation hearing again. Compl. ¶ 36, at 32. Mr. Ford denied speaking with the court crier and then made Mr. Collura submit urine for another drug test. Compl. ¶ 36, at 32. Mr. Collura claims that this urine test was retaliatory: the process of taking the drug test is unpleasant and time consuming and, further, "if you don't fill [the cup] or can't go to the bathroom, you cannot leave the building." Compl. ¶ 36, at 32-33.
On November 29, 2012, during another probation meeting, Mr. Ford told Mr. Collura that Mr. Ford had put in another request on November 20, 2012, for the violation of probation hearing to be held. Compl. ¶ 37.
When Mr. Collura reported in early January 2013, Mr. Ford, looking "dejected," stated that he had not heard back regarding the status of the violation of probation hearing. Mr. Ford reported the same circumstances in early February 2013. On April 11, 2013, Mr. Ford informed Mr. Collura that "they denied the request for the hearing, because it lacked both merit and also substance in terms of a violation." Compl. ¶ 37. Mr. Ford also "specifically declared that he was not going to request [a violation of probation hearing] any further." Compl. ¶ 37. And, Mr. Collura discovered, after November 20, 2012, Mr. Ford "did not send in another request." Compl. ¶ 37.
Mr. Collura's efforts to contact higher-ups in the FJD in October and November 2012 led nowhere. Compl. ¶ 39. But in March 2013, Mr. Collura managed to reach an individual who stated that he could "handle grievances and that they could address [his]." Compl. ¶ 40, at 34. In late April 2013, Mr. Collura filed an in-depth grievance in writing about the events described above, and on May 6, 2013, in a phone call with the same individual, that individual indicated that the grievance was under investigation. Compl. ¶ 40, at 34.
Then, on May 10, 2013, Mr. Ford again requested a violation of probation hearing, but mentioned nothing to this effect to Mr. Collura when they met on May 16, 2013. Id.; id. ¶ 38. Mr. Collura contends that Mr. Ford must have been "informed of the grievance most likely by May 8th or 9th . . . and retaliate[d] by May 10th." Compl. ¶ 40, at 35.
Based on these allegations, Mr. Collura initially purported to bring a 42 U.S.C. § 1983 action for violation of his federal constitutional rights under the First, Fourth, Fifth, and Fourteenth Amendments, "all of the Federal Constitution," and several Pennsylvania laws, including the Pennsylvania Constitution. Compl. ¶ 2 (Docket No. 1). As described below, and as relevant to the current analysis, the federal claims Mr. Collura continues to press appear to be violation of his procedural due process rights, First Amendment retaliation, and his subjection to urinalysis in violation of the Fourth Amendment.
On September 12, 2005, before his guilty plea and sentencing, a mental health evaluation determined that Mr. Collura "could benefit from intense supervision under a psychiatric services unit and referral to an outpatient psychiatric treatment agency." Amended Proposed Answer (hereinafter "APA") ¶ 12, Supplemental Submission (hereinafter "SS"), Ex. 1. Accordingly, when Mr. Collura pled guilty to the charges against him on November 8, 2005, Presiding Judge Pamela Pryor Dembe of the Philadelphia Court of Common Pleas sentenced him to 11.5 to 23 months' incarceration to be followed by 13 years' probation under the supervision of the Mental Health Unit of the Adult Probation and Parole Department of the First Judicial District of Pennsylvania ("APPD"). Thus, Mr. Collura's "term of probation began on July 4, 2007 and is scheduled to end on July 4, 2020." APA ¶ 12.
In addition to adhering to the Rules of Probation and Parole in the APPD, which "include, inter alia . . . reporting to the Probation/Parole Officer as directed; responding promptly to any summons to appear in court; obeying all federal, state, country criminal laws and city ordinances; and prohibition on unlawful possession, use, sale, or distribution of controlled substances of any kind," APA ¶ 12; see Rules of Probation and Parole, SS Ex. G, Mr. Collura was expected to abide by the Policy and Procedure for Mental Health Supervision. The Policy and Procedure further required probationers to submit to "a drug test on the first office visit" and report to their Probation Officers "at a minimum on a monthly basis," which could "be increased based on stability and compliance." APA ¶ 12; see Policy and Procedure 2, SS Ex. H. Failure to report to one appointment was to result in "an arrest warning letter" rescheduling the appointment within a week, while the second missed appointment was to result in a warrant. APA ¶ 12. In the first five years of his probationary period, Mr. Collura's reporting times varied among "weekly, bi-weekly, monthly, and bi-monthly" bases. APA ¶ 12.
On April 12, 2012, Mr. Collura met "then-newly-assigned" Probation Officer Nicholas James Ford of the Mental Health Unit of the APPD for their first appointment, throughout which Mr. Collura was "argumentative, non-responsive and confrontational." APA ¶ 13. In response to Mr. Collura's complaint that his assignment to the Mental Health Unit was unwarranted, Mr. Ford proposed that Mr. Collura submit to a mental health evaluation "to determine the . . . status of [Mr. Collura's] mental health," but Mr. Collura, suspecting that "he could be trapped by the evaluation's recommendation," rejected the suggestion. APA ¶ 13. At the end of the meeting, Mr. Ford gave Mr. Collura a urinalysis drug screening to ascertain whether Mr. Collura was refraining from the use of controlled substances in adherence to the Rules of Probation and Parole. The screening tested negative. APA ¶ 13.
After "learning . . . that he was homeless" and "offer[ing] assistance with obtaining housing and support services . . . in accordance with Mental Health Unit policy directing that reporting frequency be increased if a probationer's living situation was unstable," Mr. Ford also scheduled Mr. Collura's next meeting to follow within one week. APA ¶ 13. Upon hearing Mr. Collura's objections to this increased reporting frequency, Steffan Boyd, Mr. Ford's supervisor, shifted Mr. Collura to a one-month reporting schedule, "the minimum reporting frequency under the Policies and Procedures of the Mental Health Unit." APA ¶ 14.
Later that day (April 12, 2012), Mr. Collura left Mr. Boyd "numerous threatening voicemail messages" complaining about Mr. Ford. Considering the nature of Mr. Collura's "voicemail tirades," Mr. Boyd requested that a mental health evaluation be scheduled for Mr. Collura, whose actions demonstrated potential need for mental health treatment. APA ¶ 15.
Mr. Collura and Mr. Ford next met on or about May 15, 2012. APA ¶ 16. During this appointment, Mr. Ford again explained that if Mr. Collura still objected to his assignment to the Mental Health Unit, he would likely have to undergo a mental health evaluation, although he "would have the opportunity to express his feelings at an upcoming status hearing." APA ¶ 16. Again, Mr. Collura underwent a urinalysis drug screening, in keeping with Mr. Ford's "general practice" of "conduct[ing] random drug screenings" by "request[ing] that probationers take a drug test at several visits in a row." APA ¶ 16.
On both June 1 and June 11, 2012, Mr. Collura left several "angry, threatening and confrontational" voicemail messages for Probation Supervisor Steven Austin. APA ¶ 17. The messages' content was nebulous— Mr. Collura "only stated that he had certain unspecific issues that required resolution," and Mr. Collura never identified himself as the caller. APA ¶ 17.
Mr. Collura appeared as scheduled for a probation meeting on June 7, 2012, at which time he was informed that his mental health evaluation appointment had been scheduled for June 13, 2012, and that he could reschedule this date once. This notification was "in accordance with Mr. Ford's typical practice of notifying probationers . . . between seven and ten days ahead of the scheduled date." APA ¶ 18. Four days later, on or about June 11, Mr. Collura called the Court Mental Health Clinic of the Criminal Justice Center. Throughout the conversation, first with Sheryl Stepner and then with Probation Officer Mary Politano, Mr. Collura expressed himself in a "verbally abusive, argumentative, and non-responsive" manner. APA ¶ 19. Mr. Collura also declared his intention not to attend the mental health evaluation, even after Ms. Politano informed him that it was both "lawful and proper." APA ¶ 19. Indeed, Mr. Collura subsequently failed to appear for the evaluation. APA ¶ 19. Then, on or about June 14, 2012, Mr. Collura spoke in a "verbally combative, belligerent, and argumentative" manner on the telephone with Mr. Austin before "yelling expletives" and hanging up. APA ¶ 22.
On June 15, 2012, as a result of Mr. Collura's failure to report to the June 13 evaluation, an "Absconder Warrant for Plaintiff's arrest was lawfully and properly requested and issued," and Probation Officer Frank Romeo simultaneously drafted a Gagnon I Hearing Summary form explaining the events thought to justify the warrant. APA ¶ 23. That day, and again five days later, Mr. Collura continued to harass Probation Office employees Austin, Boyd, and Politano with "rambling" voicemail messages and telephone calls. APA ¶¶ 24, 26.
On June 19, six days after missing his mental health evaluation, Mr. Collura informed Mr. Ford via voicemail that Mr. Collura had skipped his mental health evaluation because "something had come up." APA ¶ 25. Although Mr. Ford attempted to convince Mr. Collura to report in person to the Mental Health Unit in a return phone call on June 20, Mr. Collura refused to attend any appointment before July 12, 2012. APA ¶ 25. Mr. Ford, complying with office policy, did not warn Mr. Collura of his outstanding warrant, "so as to avoid creating a flight risk." APA ¶ 25.
On or about July 3, 2012, Mr. Collura and his attorney, Patrick Link, met with Mr. Ford in person, and "the warrant for [Mr. Collura's] arrest was promptly removed because [Mr. Collura] ha[d] resumed reporting." APA ¶ 27. This meeting resulted in an agreement that Mr. Link would accept service of an upcoming notice rescheduling the mental health evaluation, and Mr. Collura was told to report for his next probation meeting on August 7, 2012. APA ¶ 27.
On July 26, 2012, Mr. Ford mailed Mr. Collura a "Violation of Probation/Parole Hearing Notification" to inform Mr. Collura of an upcoming status hearing on August 3, 2012. APA ¶ 28. Mr. Ford also informed Mr. Link of the hearing. APA ¶ 28. Subsequently, Mr. Collura requested, and was soon granted, a postponement of the hearing to August 14, 2012. APA ¶ 30. Mr. Collura also contacted Probation Officer Deputy Chief Charles Hoyt by mail to express his discontent with the handling of his probation. APA ¶ 30.
On August 7, 2012, Mr. Collura appeared at his scheduled meeting with Mr. Ford and was given a "Violation of Probation/Parole Hearing Notification" indicating the new date of August 14, 2012, for the status hearing. APA ¶ 31. The following day, Mr. Ford attempted to call Mr. Collura to instruct him on how to obtain a copy of the status hearing summary sheet, only to find that Mr. Collura's phone line had been disconnected. APA ¶ 31. In preparation for the status hearing, the APPD prepared a Gagnon II Hearing summary sheet "contain[ing] a true and correct summary of the terms of [Mr. Collura's] probation, and of [his] behavior during his interaction with the Probation Officer Defendants." APA ¶ 33.
"At the request of [Mr. Collura's] counsel," the status hearing was postponed from August 14, 2012, until September 26, 2012, which date was also then set as Mr. Collura's next official reporting date. APA ¶ 32. Although the status hearing was "cancelled by the court without an explanation," Mr. Collura never appeared on September 26, 2012, "either in court or in the APPD offices," to check in with Mr. Ford for his "required probation report." APA ¶ 34. Thus, "in accordance with APPD policy," Mr. Ford sent an Arrest Warrant Warning to Mr. Collura and requested that Mr. Collura contact him by October 10, 2012. APA ¶ 35. After Mr. Collura confirmed his receipt of the warning, Mr. Ford directed him to report in person to a meeting on October 25, 2012. APA ¶ 35.
When Mr. Collura attended the October 25, 2012 meeting, he was "given a drug screening, for the first time since May 2012, to evaluate his continued compliance with the APPD prohibition against using drugs," and told that the inexplicably canceled status hearing would be rescheduled. APA ¶ 36. While the scheduling of a Gagnon II status hearing, requested on or about November 20, 2012, was pending, Mr. Collura attended scheduled probation meetings with Mr. Ford from November 2012 through May 2013. APA ¶¶ 37, 38. After Mr. Ford put in another request for a status hearing on May 10, 2013, Mr. Collura was notified on July 18, 2013, that a status hearing was scheduled for July 23, 2013, but the hearing was continued by the court to September 6, 2013, of which Mr. Collura was formally notified on August 22. APA ¶ 37.
At the September 6, 2013 status hearing, "Judge Brown ordered that [Mr. Collura] undergo a mental health evaluation forthwith." APA ¶ 37. The results of the evaluation, conducted on October 9, reported that Mr. Collura neither exhibited any signs of mental illness nor required any treatment. APA ¶ 37. Accordingly, Mr. Collura was transferred out of the Mental Health Unit of the APPD and no longer reports to Mr. Ford. APA ¶ 37.
As laid out in the Court's March 28, 2014 Order (Docket No. 37), on December 17, 2013, Mr. Collura requested entry of default against the individual Defendants by the Clerk of Court pursuant to Federal Rule of Civil Procedure 55(a), and the Clerk entered default (Docket No. 16). Six days later the Probation Officer Defendants moved to set aside the default entered against them (Docket Nos. 18). On December 27, 2013, Mr. Collura moved for default judgment (Docket No. 21) and filed a brief opposing the Probation Officers' Motion to Set Aside Default (Docket Nos. 23). The Probation Officer Defendants then petitioned on January 14, 2014, for leave to file an untimely answer.
On January 27, 2014, the Court, calling attention to the meritorious defense prong of the standard for setting aside a default, see, e.g., Farnese v. Bagnasco, 687 F.2d 761, 764 (3d Cir. 1982), ordered the Defendants to submit a Supplemental Brief in support of their Motion to Set Aside Entry of Default and also invited Mr. Collura to file a Response. Jan. 27, 2014 Order (Docket No. 31). The Court also clarified that "while the Motion to Set Aside Entry of Default remains pending, the Court will hold Mr. Collura's Motion for Default Judgment . . . (Docket No. 21) and Defendants' Petition for Leave to File Answer to Plaintiff's Complaint . . . (Docket No. 27) in abeyance." Jan. 27, 2014 Order ¶ 5.
On March 28, 2014, upon consideration of the Defendants' Supplemental Brief and Mr. Collura's filings in response, the Court explained:
March 28, 2014 Order 15-18 (footnotes and some citations omitted). This "second issue," and analysis of the parties' "Supplemental Submissions," is now at issue.
At the end of the March 28, 2014 Order, the Court ordered the Defendants to file another Supplemental Submission by April 11, 2014, in which they were to "attach[] those state court documents that imposed and/or indicate the terms of Mr. Collura's sentence; attach an Amended Proposed Answer with more specific allegations . . .; attach[] any other necessary and/or helpful documentation; and otherwise address[] the foregoing issues." March 28, 2014 Order 18-19. The Court also asked Mr. Collura to respond.
The Defendants' effort to set aside the default and Mr. Collura's effort to convert it into a default judgment are now ripe for decision.
"An entry of default is a purely ministerial act carried out by a court clerk on request in cases in which a defendant has `failed to plead or otherwise defend,'" Sourcecorp Inc. v. Croney, 412 F. App'x 455, 457 (3d Cir. 2011) (quoting Fed. R. Civ. P. 55(a)), and is not the same as a default judgment. Joe Hand Promotions, Inc. v. Yakubets, ___ F. Supp. 2d ___, ___, No. 12-4583, 2014 WL 960787, at *4 n.5 (E.D. Pa. Mar. 11, 2014). As the Third Circuit Court of Appeals has explained,
Feliciano v. Reliant Tooling Co., Ltd., 691 F.2d 653, 656 (3d Cir. 1982); see also, e.g., Budget Blinds, Inc. v. White, 536 F.3d 244, 257 (3d Cir. 2008) ("Farnese is concerned with whether to set aside an `entry of default' as opposed to a `default judgment.' See Farnese v. Bagnasco, 687 F.2d at 763-64 (citing Fed. R. Civ. P. 55(c) (stating that a court may set aside an entry of default `for good cause')).").
Defaults entered by the clerk may be set aside upon showing of "good cause." Fed .R. Civ. P. 55(c). The Third Circuit Court of Appeals "has often emphasized that it does not favor defaults, and that in a close case doubts should be resolved in favor of setting aside the default and obtaining a decision on the merits," Farnese, 687 F.2d at 764; accord, e.g., Husain v. Casino Control Comm'n, 265 F. App'x 130, 133 (3d Cir. 2008) (per curiam) (quoting Harad v. Aetna Cas. & Sur. Co., 839 F.2d 979, 981 (3d Cir. 1988)), and it has laid out three factors for district courts to consider in arriving at a decision to be reviewed for abuse of discretion: "(1) whether the plaintiff will be prejudiced; (2) whether the defendant has a meritorious [or litigable] defense; [and] (3) whether the default was the result of the defendant's culpable conduct." United States v. $55,518.05 in U.S. Currency, 728 F.2d 192, 195 (3d Cir. 1984).
"Of course, it is always prejudicial for a party to have a case reopened after it has been closed advantageously by an opponent's default. But we do not think that is the sense in which the term `prejudice' is used in [the default judgment case law]." In re O'Brien Envtl. Energy, Inc., 188 F.3d 116, 127 (3d Cir. 1999) (quoting Pratt v. Philbrook, 109 F.3d 18, 22 (1st Cir. 1997). In other words, the fact that the plaintiff will have to litigate the case if the court sets the default or default judgment aside does not constitute prejudice. Sourcecorp, 412 F. App'x at 459-60 (citing Emcasco Ins. Co. v. Sambrick, 834 F.2d 71, 74 (3d Cir. 1987); Feliciano, 691 F.2d at 656-57); Feliciano, 691 F.2d at 656-57 ("[D]elay in realizing satisfaction on a claim rarely serves to establish [a sufficient] degree of prejudice."). Thus, "the costs associated with continued litigation normally cannot constitute prejudice," Sourcecorp, 412 F. App'x at 459-60; accord Feliciano, 691 F.2d at 656 (insufficiency of "the financial costs associated with enforcing a judgment later vacated"); nor does "the emotional strain of litigating an action on the merits," Kelly M. v. Luzerne Intermediate Unit, 71 F. App'x 116, 118 (3d Cir. 2003). "[P]rejudice is not merely the loss of an advantageous position, but must be something more closely tied to the merits of the issue." O'Brien Envtl. Energy, 188 F.3d at 127; accord, e.g., Turner v. Corr. Med. Servs., Inc., 262 F.R.D. 405, 407-08 (D. Del. 2009). Stated differently, it cannot be "prejudicial" to proceed to do that which one was going to be required to do but for a fortuitous event that occurred completely independent of the party claiming the prejudice.
Moreover, a "meritorious defense" can be a defense of any variety—whether a dispute of material fact, albeit made out only by sufficiently specific factual allegation; an affirmative defense;
The district court need not hold a hearing to make this determination. See, e.g. Zawadski de Bueno v. Bueno Castro, 822 F.2d 416, 419, 423 (3d Cir. 1987) (reversing a district court's refusal, "without a hearing," to vacate default judgment and "conclud[ing] that the record in this case does not support any inference of willfulness or bad faith, but [rather] a conclusion of excusable neglect as a matter of law"). While a conscious "tactic" of allowing the entry of default judgment "as a matter of strategy" is culpable, Wells v. Rockefeller, 728 F.2d 209, 214 (3d Cir. 1984), when a mere "breakdown in communication" between attorneys, without more, causes the default, the default is not sufficiently culpable, Zawadski de Bueno, 822 F.2d 416, 420-21 (3d Cir. 1987) (citing Gross, 700 F.2d at 124). Mere unintentional "oversight" will not suffice. Dambach, 211 F. App'x at 110. Finally, a plaintiff's mere insistence, without record evidence, that a defaulting defendant acted culpably or "perpet[r]ated a fraud on the court" is likewise inadequate. Id. Cf. also generally, e.g., Direct Mail Specialists, Inc. v. Eclat Computerized Techs., Inc., 840 F.2d 685, 689 (9th Cir. 1988) ("[B]ecause judgments by default are disfavored, a court usually will try to find that there has been an appearance by defendant." (citation and internal quotation marks omitted)).
Because the Court has already held that Mr. Collura has alleged no cognizable prejudice and that the Defendants' exhibits establish that their default was not culpable, the Court turns to the question of whether the Defendants have raised meritorious defenses to Mr. Collura's causes of action. For the reasons discussed below, the Court finds that the Probation Officer Defendants have raised meritorious defenses to all of Mr. Collura's claims and, therefore, that the Clerk of Court's entry of default should be set aside.
At first, notwithstanding Mr. Collura's acerbic declarations to the contrary, determining just what claims Mr. Collura intends to prosecute against the Probation Officer Defendants was an exercise in augury and guesswork. In the second paragraph of his Complaint, Mr. Collura declares that he is bringing his action under § 1983 for violation of his federal constitutional rights under the First, Fourth, Fifth, and Fourteenth Amendments, "all of the Federal Constitution," and several Pennsylvania laws, including the Pennsylvania Constitution. In the early stages of this litigation, the Defendants raised, and the Court discussed, the potential defenses to a variety of claims, without perceiving which claims Mr. Collura would breathe life into and which were spectral.
Mr. Collura's recent filings have provided helpful clarification regarding his claims against the Probation Officer Defendants. He explains that his challenge to his conviction was directed against the City of Philadelphia, but that his claims against "Ford and the rest of the [Probation Officer Defendants were] for specific actions that were illegal." Mot. Reconsider. 1 (Docket No. 48). In particular, his causes of action against them appear to be, to the exclusion of any others, "First Amendment and due process based claims" rather than a challenge to the conditions of his probation, because "whether or not it was originally illegal for [Mr. Collura] to be on probation in the first place . . . the violations described that occurred against [Mr. Collura] are still illegal," Mot. Reconsider. 1-2, as well as a Fourth Amendment claim challenging the drug tests to which Mr. Ford subjected him.
Although the Court notes the apparent short notice Mr. Ford allegedly gave Mr. Collura of several proceedings (which ultimately appear to have been continued or otherwise terminated),
Mr. Collura is correct that the Supreme Court's case law, in particular in Morrissey v. Brewer, 408 U.S. 471 (1972), and Gagnon v. Scarpelli, 411 U.S. 778 (1973), mandates that before revocation of probation (or parole), "a probationer, like a parolee, is entitled to a preliminary and a final revocation hearing," Gagnon, 411 U.S. at 782, along with other due process requirements, such as "written notice of the claimed violations of" probation, Gagnon, 411 U.S. at 786. But these rights are triggered because "the loss of liberty entailed" in the revocation of probation or parole "is a serious deprivation." Gagnon, 411 U.S. at 781. Without a loss of liberty, there can be no affront to due process. See U.S. Const. amend. XIV, § 1 (" . . . nor shall any State deprive any person of life, liberty, or property, without due process of law. . . ." (emphasis added)).
Indeed,
Hill v. Borough of Kutztown, 455 F.3d 225, 233-34 (3d Cir. 2006). "The first step in evaluating a § 1983 claim is to identify the exact contours of the underlying right Plaintiffs claim was violated and to determine whether they have alleged deprivation of a constitutional right at all." Culinary Serv. of Del. Valley, Inc. v. Borough of Yardley, 385 F. App'x 135, 141 (3d Cir. 2010) (emphasis added). The case law is clear that a plaintiff fails to state a due process claim where, even if he has a life, liberty, or property interest that is cognizable under the Due Process Clause, he "do[es] not demonstrate a deprivation of that interest." Ass'n N.J. Rifle & Pistol Clubs v. Gov. of N.J., 707 F.3d 238, 241 (3d Cir. 2013); see also, e.g., Rodrock v. Moury, 379 F. App'x 164, 166 (3d Cir. 2010) ("A party who fails to establish the deprivation of a right fails to establish a Section 1983 claim." (citing Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996)). The Constitution does not secure the right of "due process" to all individuals in all circumstances; rather, the Constitution, by its explicit terms, requires due process before a "State [may] deprive any person of life, liberty, or property." U.S. Const. amend. XIV, § 1; see also Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979) ("The Due Process Clause applies when government action deprives a person of liberty or property; accordingly, when there is a claimed denial of due process we have inquired into the nature of the individual's claimed interest.").
Although the Probation Officer Defendants focus primarily on their proffer that Mr. Collura "received meaning[ful] notice and an opportunity to be heard in connection with his probation requirements," because, they contend, "[a]t trial, [they] will prove that [Mr. Collura] received proper notice of all probation-related requirements, in accordance with governing law and Probation Department procedures," Defs.' Supp. Br. 16, the Court need not address that contention at this juncture. Defendants cite Hill v. Borough of Kutztown, 455 F.3d at 233-34, for the proposition that a plaintiff bringing a procedural due process claim "must allege . . . that he or she was deprived of an individual interest that is encompassed within the Fourteenth Amendment's protection of `life, liberty, or property.'" Defs.' Supp. Br. 16 (emphasis added).
A review of procedural due process case law suggests that most individuals do not attempt to sue before they have suffered any deprivation of an alleged life, liberty, or property interest. E.g., Iles v. de Jongh, 638 F.3d 169, 171 (3d Cir. 2011) ("Both employees sued the Governor and the Government of the Virgin Islands, claiming that their terminations deprived them of their property interests in public employment without due process of law." (emphasis added)); see also, e.g., United States v. Kirtley, 5 F.3d 1110, 1112 (7th Cir. 1993) ("First, we must determine whether Kirtley was deprived of a protected due process interest." (emphasis added)); cf., e.g., Pugliese v. Nelson, 617 F.2d 916, 922-23 (2d Cir. 1980) ("Nor does an incarcerated prisoner against whom a detainer has been filed for violation of parole on another conviction have a sufficient interest to entitle him to an immediate hearing, since his `loss of liberty as a parole violator does not occur until (he) is taken into custody under the warrant,' even though a prompt hearing could possibly result in his serving sentences concurrently rather than consecutively." (citing Moody v. Daggett, 429 U.S. 78, 87 (1976)). And, in fact, all the cases Mr. Collura cites in support of his due process claim, see Compl. 36-38; Collura's Mot. J. Pldgs. 8-9 (Docket No. 58), relied on the deprivation of liberty because probation or parole was revoked, as the pin cites provided in the margin confirm.
As the Supreme Court has explained,
Moody, 429 U.S. at 86-87 (emphasis added).
Because Mr. Collura's probation was not actually revoked, and he has identified no other liberty (or property) interest of which the Defendants allegedly deprived him, he appears to have failed to state a due process claim. Further, the fact that Mr. Collura's probation might be revoked in the future is not enough to permit him to bring a due process claim at this juncture. The appropriate time and place for Mr. Collura to raise his due process argument that he was afforded inadequate notice must, in the first instance, be before the judge on any hearing to revoke his probation. Cf., e.g., Martinez v. Davis, No. 10-1175, 2010 WL 3720226, at *2-3 (D. Colo. Sept. 14, 2010) ("[T]o the extent Mr. Martinez contends he has been unable to defend against the revocation of his probation, the claim is premature. . . because the issue is not ripe for adjudication. . . . Mr. Martinez's probation has not been revoked. . . ."); Vinson v. Dep't of Prob., 472 F.Supp. 1112, 1114 (E.D.N.Y. 1979) ("This determination awaits petitioner when he is finally afforded a hearing on the alleged violations and is clearly not ripe for review on this petition, despite petitioner's claim that he is under a threat of serving his earlier sentence on an installment plan."); Augello v. Warden, Metro. Corr. Ctr., 470 F.Supp. 1230, 1234 (E.D.N.Y. 1979) ("[W]hile petitioner might well be correct in his contention that respondents' failure, if any, to disclose evidence they intend to use against him at the final hearing might violate federal law, this claim is not ripe for decision since petitioner's final hearing is not set to be held [for another week]." (citation omitted)).
The Defendants contend that they have a meritorious defense to Mr. Collura's First Amendment retaliation claims because, among other things, "there is no evidence of a causal connection between any alleged protected speech by [Mr. Collura] and allegedly retaliatory conduct by the Individual Defendants." Defs.' Supp. Br. 15. Rather than take any "adverse actions" against Mr. Collura because of his speech, the Defendants contend, "they reasonably and properly applied lawful policies of the Probation Department in overseeing [Mr. Collura's] probation sentence, and . . . any alleged `adverse actions' were the lawful result of [Mr. Collura's] misconduct or non-cooperation with the Probation Department." Defs.' Supp. Br. 15.
First Amendment retaliation case law often focuses on the context of public employees or the alleged mistreatment of inmates, but the Court discerns some generally applicable principles. "A prisoner alleging retaliation," for instance, "must show (1) constitutionally protected conduct, (2) an adverse action by prison officials `"sufficient to deter a person of ordinary firmness from exercising his [constitutional] rights,'" and (3) `a causal link between the exercise of his constitutional rights and the adverse action taken against him.'" Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003) (quoting Rauser v. Horn, 241 F.3d 330, 333 (3d Cir .2001) (quoting Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000)) (alteration in original)).
The second prong, "adverse action," is context-dependent. "Government actions, which standing alone do not violate the Constitution, may nonetheless be constitutional torts if motivated in substantial part by a desire to punish an individual for exercise of a constitutional right." Allah, 229 F.3d at 224-25 (quoting Thaddeus-X v. Blatter, 175 F.3d 378, 386 (6th Cir.1999) (en banc) (per curiam)); accord Mitchell, 318 F.3d at 530; see also, e.g., Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998) ("[O]fficials may not retaliate against or harass an inmate because of the inmate's exercise of his constitutional rights . . . even where the action taken in retaliation would be otherwise permissible." (internal quotation marks and citation omitted)). "Determining whether a plaintiff's First Amendment rights were adversely affected by retaliatory conduct is a fact intensive inquiry focusing on the status of the speaker, the status of the retaliator, the relationship between the speaker and the retaliator, and the nature of the retaliatory acts." Brennan v. Norton, 350 F.3d 399, 419 (3d Cir. 2003) (quoting Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 686 (4th Cir. 2000) (emphasis in Brennan); accord, e.g., Allah, 229 F.3d at 225 ("Although it is possible that in some cases placement in administrative segregation would not deter a prisoner of ordinary firmness from exercising his or her First Amendment rights, we cannot say that such action can never amount to adverse action. On the contrary, whether a prisoner-plaintiff has met that prong of his or her retaliation claim will depend on the facts of the particular case."); Thaddeus-X, 175 F.3d at 398 ("[T]he definition of adverse action is not static across contexts."); see also, e.g., Chruby v. Kowaleski, 534 F. App'x 156, 161 (3d Cir. 2013) ("Without deciding the general issue of whether threats can constitute adverse action, today we will affirm the District Court's conclusion that the verbal threats alleged were not sufficient to deter Chruby from exercising his constitutional rights.");
Under the "causal-link" prong, in both the public employment and prison contexts, "the plaintiff b[ears] the initial burden of proving that his constitutionally protected conduct was `a substantial or motivating factor'" in the action adverse to him. Rauser, 241 F.3d at 333-34. Thus, a prisoner's First Amendment retaliation claim arising from the allegedly retaliatory revocation of his parole will flounder, for instance, if he "fail[s] to demonstrate a causal connection between his filing of grievances and his arrest and parole remand." Carter v. Morrisson, 429 F. App'x 114, 119 (3d Cir. 2011) (per curiam). Moreover, in the prison context, defendant "prison officials may still prevail by proving that they would have made the same decision absent the protected conduct for reasons reasonably related to a legitimate penological interest." Rauser, 241 F.3d at 334.
Upon review of Defendants' Amended Proposed Answer, the Court determines that the Defendants' factual allegations, if proven, would establish that they did not take whatever actions they took, whether or not sufficiently "adverse" for the purposes of the First Amendment retaliation standard, in retaliation for any protected speech by Mr. Collura. To the contrary, Defendants "specifically [deny] that actions of Parole Officer Defendant Ford were `to retaliate' against Plaintiff in any manner," APA ¶ 14, and state that the tests were done "in the ordinary course of probation supervision" to monitor Mr. Collura's compliance with his probation terms. SS 11.
Further, the Defendants' Supplemental Submission in Support of their Motion to Set Aside the Clerk of Court's Entry of Default details Collura's behavior on April 12, 2012, the day of the first probationary drug test alleged in Mr. Collura's Complaint, but it does not state that Probation Officer Ford ordered a drug test because of Collura's behavior. According to the Defendants' Supplemental Submission and their Proposed Amended Answer, "Mr. Ford's practice was to conduct random drug screening of all probationers whom he supervised; he typically requested that probationers take a drug test at several visits in a row, followed by a gap of several months before taking another test." SS 4; Defs.' APA ¶ 16. Defendants argue that on three occasions between April and October 2012, Mr. Collura "was lawfully and properly given a urinalysis drug screening for controlled substances in accordance with the Mental Health Unit policy concerning drug screenings and in order to evaluate Plaintiff's compliance with the Rules of Probation and Parole, which prohibited Plaintiff from using controlled substances." SS 5, 8, 11; APA ¶¶ 13, 36.
Mr. Ford's administration of the drug tests may have Fourth Amendment ramifications, as addressed below, but if, as Defendants contend, Mr. Ford subjected Mr. Collura to urinalysis as part of his "practice [of] random drug screening of all probationers whom he supervised," then, it follows that Mr. Ford did not take these actions because of any protected speech by Mr. Collura. Further, the Court observes, "[i]n the prison context, [courts] treat [retaliation] claims with skepticism because `[e]very act of discipline by prison officials is by definition `retaliatory' in the sense that it responds directly to prisoner misconduct.'" Cochran v. Morris, 73 F.3d 1310, 1317 (4th Cir. 1996) (quoting Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994)) (third alteration in original). Defendants also contend, specifically, that "any alleged `adverse actions' were the result of [Mr. Collura's] misconduct or non-cooperation with the Probation Department." Defs.' Supp. Br. 15. Of course, the Court is not accepting Defendants' characterization for purpose of resolution of Mr. Collura's claims. Rather, the relevant question here is whether the Defendants' assertions, if proven, would constitute a defense to Mr. Collura's First Amendment retaliation claim. For the reasons described above, the Court finds that they would. Defendants' defense is facially meritorious, and so they are entitled to attempt to defend this claim.
The Court construes Mr. Collura's contention that Mr. Ford's administration of urinalysis was "illegal from the door," e.g., Collura Mot. J. Pldgs. 2, to sound under the Fourth Amendment, which protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. "It is settled law that the collection and analysis of a urine sample to test for drug use constitutes a search that is subject to the constraints of the Constitution's Fourth Amendment." Kerns v. Chalfont-New Britain Twp. Joint Sewage Auth., 263 F.3d 61, 65 (3d Cir. 2001) (citing Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 617 (1989)).
Probationers such as Mr. Collura do not have the same Fourth Amendment rights as the general populace. As the Supreme Court has explained in United States v. Knights, 534 U.S. 112 (2001),
Knights, 534 U.S. at 118-19.
In Knights, the Supreme Court upheld a police search conducted pursuant to the terms of the defendant's probation which permitted searches "with or without a search warrant, warrant of arrest or reasonable cause." 534 U.S. at 114-15. Balancing the intrusion on the defendant's expectation of privacy against the government's legitimate interests in conducting the search, the Court relied on the fact that, although the police did not have a warrant, they did have reasonable suspicion. Id. at 114-18. "[A] salient circumstance" in the Court's reasoning was the fact that the conditions of the defendant's probation purported to authorize the search. Id. at 118. The Supreme Court did not decide, however, "whether the probation condition so diminished, or completely eliminated, [the defendant's] reasonable expectation of privacy . . . [such] that a search by a law enforcement officer without any individualized suspicion would have satisfied the reasonableness requirement of the Fourth Amendment." Id. at 120 n.6.
Five years later, in Samson v. California, 547 U.S. 843 (2006), the Supreme Court addressed, with respect to parolees, the question it had reserved in Knights. Id. at 847 & n.1 The Court upheld a California law that authorized searches of parolees "with or without a search warrant and with or without cause." Id. at 846. Applying the same balancing test it had employed in Knights, the Samson Court, explaining that "parolees have fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is to imprisonment," id. at 850, "conclude[d] that the Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee," id. at 857.
Neither the Supreme Court nor the Third Circuit Court of Appeals has addressed the question of when a probation officer can conduct a suspicionless search of a probationer and, if so, whether the probation officer may conduct such a suspicionless search in the absence of probation conditions expressly authorizing that search. Only one federal appellate case appears to be on point. In United States v. King, 736 F.3d 805 (9th Cir. 2013), reh'g en banc denied, id., the Ninth Circuit Court of Appeals held that "a suspicionless search [of a probationer], conducted pursuant to a suspicionless-search condition of a violent felon's probation agreement, does not violate the Fourth Amendment." Id. at 810. But the Ninth Circuit Court of Appeals, in keeping with the Supreme Court's gradual approach to constitutional interpretation, expressly observed that it "need not decide whether the Fourth Amendment permits suspicionless searches of probationers who have not accepted[
In Griffin v. Wisconsin, 483 U.S. 868, by contrast, the Supreme Court created a different exception, known as the "special needs" exception, "to the Fourth Amendment's warrant requirement in the context of parolee searches." United States v. Freeman, 479 F.3d 743, 746 (10th Cir. 2007); see also State v. Schlechty, 926 N.E.2d 1, 5-6 (Ind. 2010) ("Knights and Griffin represent different ways in which a probation search may be analyzed." (citing, inter alia, United States v. Herndon, 501 F.3d 683, 688 (6th Cir. 2007))). In Griffin, the Supreme Court explained that probation
Griffin, 483 U.S. at 875. The Court then upheld the search of Mr. Griffin's residence as "`reasonable' within the meaning of the Fourth Amendment because it was conducted pursuant to a valid regulation governing probationers," and the probation officer had "`reasonable grounds' to believe contraband [was] present." Id. at 880. And, again, the Supreme Court reserved a question: "whether . . . any search of a probationer's home by a probation officer is lawful when there are `reasonable grounds' to believe contraband is present." Id.
Of course, it may be that "Samson, like Griffin, has little to no bearing on whether a warrantless search not authorized by statute, regulation or condition of supervision is permissible." United States v. Kone, 591 F.Supp.2d 593, 603 (S.D.N.Y. 2008) (citing Freeman, 479 F.3d at 748). It thus may be that "[p]arolee [and probationer] searches are . . . an example of the rare instance in which the contours of a federal constitutional right are determined, in part, by the content of state law." Freeman, 479 F.3d at 747-48; see also id. at 748 ("Samson does not represent a blanket approval for warrantless parolee or probationer searches by general law enforcement officers without reasonable suspicion; rather, the Court approved the constitutionality of such searches only when authorized under state law. Kansas has not gone as far as California in authorizing such searches, and this search therefore was not permissible in the absence of reasonable suspicion."). But see also, e.g., United States v. Duff, 831 F.2d 176, 179 (9th Cir. 1987) (upholding warrantless urine testing of a probationer in the absence of such a specific condition of probation because "the urine testing employed here was narrowly tailored to determine whether Duff was using drugs and was less intrusive of Duff's privacy than other methods of monitoring, such as continuous surveillance or repeated searches of Duff's home and property[, and t]he probation officer had a reasonable suspicion that Duff might be using drugs . . [and] that drug testing was necessary to foster the offender's reformation and to preserve the public's safety" (citation and internal quotation marks omitted)).
Mr. Collura's case appears to present these questions that the Ninth Circuit Court of Appeals reserved in King. Under Pennsylvania law, a probation officer may conduct a personal search of a probationer "if there is a reasonable suspicion to believe that the offender possesses contraband or other evidence of violations of the conditions of supervision." 42 Pa. Cons. Stat. Ann. § 9912(d)(1)(i) (emphasis added). Reasonable suspicion is "determined in accordance with constitutional search and seizure provisions as applied by judicial decision," and is to take into account several factors, including the probation officer's experience with the probationer, information provided to the officer by the probationer, and the need to verify compliance with the conditions of supervision. See id. § 9912(d)(6)(i)-(viii). These terms appear to be incorporated into the conditions of Mr. Collura's probation, which state that "you are subject to a personal search and/or property search, including vehicle and the seizure of any contraband found, if there is reasonable suspicion to believe that you are in violation of any of the conditions of supervision." Rules of Probation and Parole ¶ 10, SS Ex. G. Mr. Collura's conditions of supervision also admonish him "not [to] unlawfully possess, use, sell or distribute controlled substances of any kind." Rules of Probation and Parole ¶ 7. But, as Mr. Collura points out, the Mental Health Unit's Policy and Procedure states that while "[a]ll offenders should be given a drug test on the first office visit," "[m]onthly urinalyses are conducted on all offenders if drug testing is ordered by the Court." Policy and Procedure 3, SS Ex. H.
The questions here can be clarified as follows, then: First, did Probation Officer Ford have reasonable suspicion to believe that Mr. Collura may have been at risk of violating a condition of his probation when he subjected Mr. Collura to urinalysis? Second, did Mr. Ford need reasonable suspicion (and, if so, what quality or quantity), or, in fact, would the Third Circuit Court of Appeals or the United States Supreme Court answer the question reserved in King to permit suspicionless searches of probationers?
Although there may be some implication that suspicionless searches are only permissible where they are an explicit condition of probation, e.g., Freeman, 479 F.3d at 747 ("In Samson . . . the Supreme Court . . . noted `that some States and the Federal Government require a level of individualized suspicion,' and strongly implied that in such jurisdictions a suspicionless search would remain impermissible." (citing Samson, 547 U.S. at 855)),
Griffin's "special needs" rationale, after all, is rather broad: "the very assumption of the institution of probation [is] that the probationer is in need of rehabilitation and is more likely than the ordinary citizen to violate the law." Griffin, 483 U.S. at 880; cf. also, e.g., Schlechty, 926 N.E.2d at 5-6 ("In sum, a warrantless probation search under Griffin may be justified on the basis of reasonable suspicion to believe a probation violation has occurred because, among other things, supervision of probationers is necessary to ensure that probation restrictions are in fact observed, and that the community is not harmed by the probationer being at large."). Thus, at this stage, this Court is "not prepared at this time to say that" the Defendants' implicit defense here, namely, that Mr. Ford's standard practice was to randomly drug test all of his probationers, "is facially unmeritorious," Gross, 700 F.2d at 123. Cf. also, e.g., United States v. Lifshitz, 369 F.3d 173, 186 (2d Cir. 2004) ("The Supreme Court has, notably, refrained from addressing whether the `special needs' of the probation system justify imposing drug testing conditions in conjunction with sentences of probation. Although . . . we do not decide this issue today, other circuits have upheld such measures. . . .").
Moreover, it is far from clear that in the circumstances of this case—which are, of course, as yet undeveloped by discovery—that Mr. Ford did not have reasonable suspicion. After all, reasonable suspicion does not necessarily mean "individualized suspicion." The question of what the overall circumstances must show, especially as they relate to the State's interests in both rehabilitating the probationer as well as preventing him from reoffending and harming others, remains open and the relevance of such factors as a probationer's assignment to the Mental Health Unit (as was the case with Mr. Collura), his apparent periods of homelessness, or his allegedly belligerent and irregular behavior (all hotly contested issues, but Defendants' version controls at this stage), undecided, as a matter of both law and fact.
For these reasons, and especially given that "in a close case doubts should be resolved in favor of setting aside the default and obtaining a decision on the merits," Farnese, 687 F.2d at 764, the Court will exercise its discretion to find that the Defendants have alleged facts and the implicit basis for a legal theory that could allow them, if they prove their version of events, to prevail at trial against Mr. Collura's Fourth Amendment claims.
Because the Court sets aside the Clerk of Court's entry of default, the Court also addresses Mr. Collura's "Motion to Strike Waived `Affirmative Defenses' in Above Defendants Untimely `Amended Proposed Answer'" ("Motion to Strike," Docket No. 57) and Motion for Full or Partial Judgment on the Pleadings ("Motion for Judgment on the Pleadings," Docket No. 58). For the reasons set out below, the former will be granted in part and denied in part and the latter will be denied.
Additionally, the Court resolves Mr. Collura's other pending motions seeking reconsideration, disqualification of opposing counsel, the striking of sealed defense exhibits, and an ECF account, and, potentially, recusal.
Mr. Collura moves to strike the "affirmative defenses" in the Defendants' Amended Proposed Answer as insufficient as a matter of law. See Mot. Strike 20. For the following reasons, the Court grants in part and denies in part Mr. Collura's Motion to Strike, without prejudice to the Defendants' repleading defenses in such manner as may be consistent with the following analysis.
Federal Rule of Civil Procedure 12(f) provides, in full:
Fed. R. Civ. P. 12(f).
Motions to strike are generally "viewed with disfavor . . . and are infrequently granted." 5C Charles Alan Wright, Arthur R. Miller, et al., Federal Practice and Procedure § 1380 (3d ed. Ar. 2014). A motion to strike insufficient defenses will "usually will be denied unless the allegations have no possible relation to the controversy and may cause prejudice to one of the parties, or if the allegations confuse the issues." Knitting With v. Knitting Fever, Inc., Nos. 08-4221, 08-4775, 2009 WL 973492, at *6 (E.D. Pa. Apr. 8, 2009) (quoting River Road Dev. Corp. v. Carlson Corp., No. 89-7037, 1990 WL 69085, at *2 (E.D. Pa. May 23, 1990)). "A motion to strike will not be granted where the sufficiency of a defense depends on disputed issues of fact [because] a motion to strike is not the appropriate procedure to determine disputed or unclear questions of law." Linker v. Custom-Bilt Mach. Inc., 594 F.Supp. 894, 898 (E.D. Pa. 1984). Thus, a motion to strike should only be granted when "the insufficiency of the defense is clearly apparent." Cipollone v. Liggett Grp., Inc., 789 F.2d 181, 188 (3d Cir. 1986). In fact, some courts have opined that "[s]triking a pleading is a drastic remedy to be resorted to only when required for the purposes of justice." Johnson v. Anhorn, 334 F.Supp.2d 802, 809 (E.D. Pa. 2004) (quoting United States v. Am. Elec. Power Serv. Corp., 218 F.Supp.2d 931 (S.D. Ohio 2002)).
Though Twiqbal
Still, even though Twiqbal's heightened standard does not apply, Federal Rule of Civil Procedure 8 requires responsive pleadings to "state in short and plain terms [the party's] defenses." Fed. R. Civ. P. 8(b)(1)(A). "[E]ven before Twombly and Iqbal, affirmative defenses had to provide the plaintiff with fair notice of the nature of the defense," and so "bare bones conclusory allegations" have always been at risk of being struck. Dann, 274 F.R.D. at 145; accord, e.g., Heller Fin., Inc. v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1295 (7th Cir. 1989) (striking as "bare bones conclusory allegations" affirmative defenses that "omitted any short and plain statement of facts and failed totally to allege the necessary elements of the alleged claims.); BJ Energy LLC v. PJM Interconnection, LLC, No. 08-3649, 2010 WL 1491900, at *2 (E.D. Pa. Apr. 13, 2010) ("An affirmative defense stated in general terms will not be deemed insufficient as long as it gives plaintiffs fair notice of the nature of the defense."). Of course, an affirmative defense may also be stricken "where it cannot succeed under any set of facts which may be inferred from the allegations of the pleading," BJ Energy, 2010 WL 1491900, at *2, because there is no relevant dispute of fact and the defense is insufficient as a matter of law, Linker, 594 F. Supp. at 898. See also generally 5C Wright and Miller, supra, § 1381.
The Court will strike several of the Defendants' affirmative defenses as too conclusory, and unsupported by sufficient factual allegations, to put Mr. Collura on notice of the import of those defenses. In particular, the Defendants plead (1) the doctrines of laches, waiver, estoppel, and/or unclean hands; (2) that Defendant Probation Officers' purported actions or omissions were not the proximate cause of any alleged injury; (3) that Mr. Collura failed to take reasonable measures to mitigate any or all damages; and (4) that Mr. Collura's injuries were caused by his own negligent, wanton, reckless, or criminal conduct. APA 16-18. In pleading these affirmative defenses, Defendants neither outline the elements of the defenses nor allege any facts in support of each assertion. This boilerplate pleading fails to provide Mr. Collura with fair notice of the nature or underpinning of the defenses and so the Court will therefore grant Mr. Collura's motion in part and strike the four aforementioned defenses from the Defendants' Proposed Amended Answer.
The Court will also strike several of the Defendants' "affirmative defenses" as insufficient as a matter of law, or, stated otherwise, inapplicable even if accepting all of Mr. Collura's allegations as true. The parties' submissions in this case have by now clarified that Mr. Collura's claims against the Probation Officer Defendants do not challenge the validity of Mr. Collura's underlying conviction, but rather only the Defendants' alleged manner of supervising Mr. Collura's probation. Because Mr. Collura has challenged no state court judgment vis-à-vis the Probation Officer Defendants, the Court finds the Rooker-Feldman doctrine inapplicable.
For similar reasons, because Mr. Collura has clarified that he is not challenging the imposition or duration of his probation, the Heck defense is not applicable to his claims against the Probation Officer Defendants. See Heck v. Humphrey, 512 U.S. 477 (1994). When Heck and its progeny apply, they make collateral attacks on a conviction that has not been overturned "uncognizable" under § 1983—that is, impossible to pursue, except through the appropriate habeas corpus procedures. See, e.g., Williams v. Consovoy, 453 F.3d 173, 177 (3d Cir. 2006); see also, e.g., Edwards v. Balisok, 520 U.S. 641, 643, 649 (1997); Torres v. Fauver, 292 F.3d 141, 146. The Heck cases stand for the principle that "civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments," Heck, 512 U.S. at 486, and the application of the doctrine is accordingly limited to barring a "§ 1983 action . . . (absent prior invalidation)—no matter 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 v. Dotson, 544 U.S. 74, 81-82 (2005). Because Mr. Collura only challenges the Probation Officer Defendants' alleged conduct in supervising a portion of his probation, and not his "confinement or its duration" (or, in the case of a probationer, the probation conditions "imposed as part of a court judgment," rather than "the discretionary decisions" of probation officers, see Thornton v. Brown, ___ F.3d ___, ___, No. 11-56146, 2013 WL 7216368, at *7-8 (9th Cir. Feb. 18, 2014)), Heck is inapplicable here.
Finally, the Court strikes the Defendants' statute of limitations defense. Mr. Collura's cause of action arises under 42 U.S.C. § 1983, for which courts apply the state statute of limitations for personal injury claims. Sameric Corp. of Del., Inc. v. City of Philadelphia, 142 F.3d 582, 599 (3d Cir. 1998). Pennsylvania's limitations period for such claims runs two years. Id.,; see 42 Pa. Cons. Stat. Ann. § 5524. Mr. Collura brought this action on July 11, 2013. Therefore, all allegations against the Probation Officer Defendants that took place before July 11, 2011 are time-barred by the statute of limitations. All of Mr. Collura's allegations regarding the Probation Officer Defendants, however, occur on or after April 12, 2012, well after July 11, 2011. The Court therefore grants Mr. Collura's Motion to Strike as to the Defendants' statute of limitations defense.
The Court will not strike the Defendants' "affirmative defenses" of failure to state a claim, the contention that the Defendants acted in a reasonable manner, or the contentions that Mr. Collura is not entitled to declaratory and/or injunctive relief or punitive damages. Although none of these arguments are technically "affirmative defenses," their inclusion in the proposed pleading in no way prejudices Mr. Collura. For one, the Federal Rules of Civil Procedure explicitly provide that the defense of failure to state a claim "may be raised . . . in any pleading allowed or ordered under Rule 7(a)." Fed. R. Civ. P. 12(h)(2)(A); id. 7(a)(2) (pleadings include "an answer to a complaint"). Although the Defendants have not specified on what grounds they believe Mr. Collura has failed to state a claim, the Court has suggested earlier in this Memorandum Opinion, for example, that Mr. Collura may have failed to state a due process claim because he has not alleged any deprivation of his liberty. Because the defense of failure to state a claim can be raised at any point anyway, and, further, because such defense may, in fact, be appropriate here, the Court will not strike it.
Second, while the contention that Defendants acted in a reasonable manner is, if taken alone, conclusory, the Court finds that, if it credits (as it must, for purposes of the Motion to Strike) the factual allegations in Defendants' Proposed Amended Answer, the contention is relevant to the defense of Mr. Collura's ostensible Fourth Amendment claim that he was unlawfully subjected to urinalysis. It may also be relevant to the Defendants' defense of Mr. Collura's retaliation claims.
Third, Defendants' contention that Mr. Collura is not entitled to declaratory and/or injunctive relief is merely a legal claim about the operation of the Defendants' defenses. If, as they have necessarily argued at the motion-to-set-aside-default stage, the Defendants have raised meritorious defenses to all of Mr. Collura's claims, then it follows, as a matter of logic, that Mr. Collura is entitled to no relief, including declaratory or injunctive relief.
Finally, and for similar reasons, the contention that Mr. Collura is not entitled to punitive damages is sufficient at this stage. Punitive damages are available under § 1983 only where the plaintiff proves that the "defendant's conduct" is, "at a minimum, reckless or callous" in disregarding "the rights or safety of others." Savarese v. Agriss, 883 F.2d 1194, 1203-04 (3d Cir. 1989) (following Smith v. Wade, 461 U.S. 30, 56 (1983)). The Defendants, of course, have alleged that they have acted reasonably and lawfully as opposed to in reckless or callous indifference to Mr. Collura's constitutional rights, and so this defense, which is really just legal conclusion based on the Defendants' factual allegations, is not improper.
The Court will also decline to strike several defenses on the ground that doing so is premature and properly awaits some factual development through discovery. First, the Court declines to strike the Defendants' Younger defense.
Second, the Court cannot properly, and therefore will not, opine at this stage as to whether the Defendants have absolute or qualified immunity. Whether the Probation Officer Defendants are entitled to absolute immunity from Mr. Collura's § 1983 claims depends on whether they "perform[ed] investigative or evaluative functions at a governmental adjudicative entity's request to assist that entity in its decisionmaking process are entitled to absolute immunity." Williams v. Consovoy, 453 F.3d 173, 178 (3d Cir. 2006); see id. ("[A]bsolute immunity attaches to those who perform functions integral to the judicial process." (citing Burns v. Reed, 500 U.S. 478, 484 (1991))). Answering this question requires courts to undertake a "`functional' approach" that considers "the nature of the functions being performed by the actor in question and . . . the effect that exposure to liability would have on an appropriate exercise of that function." Id. at 178. The Court will not undertake this inquiry without a proper motion (i.e., not upon a motion to strike) or development of the factual record.
Similarly, under the qualified immunity doctrine, "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). What the Probation Officer Defendants (and Mr. Ford, in particular) knew at the time of the alleged events is, of course, in heated dispute. Perhaps more importantly, though, the Fourth Amendment principles applicable in this are less than clear, and"[i]f the law at [the] time [the actions occurred] was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to `know' that the law forbade conduct not previously identified as unlawful." Id.
For the reasons described above, the Court grants in part and denies in part Mr. Collura's Motion to Strike (Docket No. 57) without prejudice to the Defendants' raising those defenses should such repleading comply with the guidance above.
For the same reasons that the Court has held that the Defendants have raised meritorious defenses, Mr. Collura's Motion for Judgment on the Pleadings (Docket No. 58) must be denied.
Notwithstanding his contention to the contrary, Mr. Collura has not, in fact, proven his case, and at this point no one can or does know that what he alleges in his Complaint is, indeed, fact. Because Mr. Collura is the movant, he, like the Court, for purposes of resolving his Motion for Judgment on the Pleadings, must accept the Defendants' version of the facts, under which he cannot prevail. "[N]o judgment can enter without trial in view of the pendency of the first defense which is a general denial." Dysart v. Remington Rand, 31 F.Supp. 296, 297 (D. Conn. 1939); accord 5C Wright & Miller, supra, § 1369. Because there are "material issue[s] of fact to resolve," Leamer v. Fauver, 288 F.3d 532, 535 (3d Cir. 2002), Mr. Collura's Motion for Judgment on the Pleadings must be denied.
Upon consideration of Mr. Collura's Motion for Reconsideration (Docket No. 48), the Defendants' Responses (Docket Nos. 53 & 54), and Mr. Collura's "Reply to March 28th, Filing" (Docket No. 62), which the Court construes as an addendum to Mr. Collura's Motion for Reconsideration, the Court will deny Mr. Collura's Motion for Reconsideration.
A motion for reconsideration "must rely on one of three grounds: (1) an intervening change in controlling law; (2) the availability of new evidence; or (3) the need to correct clear error of law or prevent manifest injustice." Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir. 2010) (per curiam); accord Max's Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). To be sure, Mr. Collura contends that this Court has erred in many respects, but his motion fails because it does not meet the basic requirements for reconsideration.
Primarily, Mr. Collura continues his attempts to relitigate the Court's rulings under the default/default judgment standard with regard to the Probation Officer Defendants. Mr. Collura's contention that he has established prejudice sufficient to prevent the setting aside of default based on his conclusory assertions of "loss of evidence, an increased potential for fraud or collusion, substantial reliance on the entry of default, and other substantial factors," as well as the assertions that "he now does not have enough funds to prosecute this case on merits, also health issues, it's flu season . . . the lack of funds and health issues, would interfere all the time and work, attending hearings, conducting discovery (everyone of them would get deposed extensively), trials, appeals, etc.," Mot. Reconsider. 0-1, is insufficient. See, e.g., Sourcecorp, 412 F. App'x at 460 ("[T]he costs associated with continued litigation normally cannot constitute prejudice."); Feliciano, 691 F.2d at 656-57 ("[D]elay in realizing satisfaction on a claim rarely serves to establish [a sufficient] degree of prejudice."); Kelly M., 71 F. App'x at 118 ("[T]he emotional strain of litigating an action on the merits is not the kind of prejudice towards which our jurisprudence is directed."); supra Part II.
Second, Mr. Collura contends that the Probation Officer Defendants did not establish that their default was not willful. The Court disagrees and reconfirms its initial determination that their default was the result of negligent administrative error. "[T]here is nothing in the record indicating that the defendants' conduct went beyond mere negligence, rising to the level of `flagrant bad faith' or `contumacious behavior.'" Jorden v. Nat'l Guard Bureau, 877 F.2d 245, 251 (3d Cir. 1989) (citing Emcasco, 834 F.2d at 75; Scarborough v. Eubanks, 747 F.2d 871, 875 (3d Cir. 1984)).
Third, Mr. Collura argues that "a defense" for purposes of the default judgment standard "strictly involves the complaint being true." Mot. Reconsider. 3. While Mr. Collura has defined the concept of an "affirmative defense," here the focus must be on an understanding of the term "meritorious defense," which, for purposes of the default judgment standard, as set out above, is any defense, not simply an "affirmative defense." See supra note 9 and accompanying text. Furthermore, Mr. Collura misunderstands footnote 8 of the Court's prior Order, which states that "[t]he Court will not address Mr. Collura's supplemental state law claims at this juncture, because if the Defendants were to establish meritorious defenses to the federal claims, the Court would likely have to decline to exercise supplemental jurisdiction over the state law claims," Mar. 28, 2014 Order 18 n.8, and refers to footnote 2, which states:
Mar. 28, 2014 Order 2 n.2. A sensible reading of these footnotes, and certainly what the Court intended to convey, is that if, at a later stage of the litigation, the Probation Officer Defendants "establish complete defenses to Mr. Collura's federal claims" so that those federal claims are dismissed or judgment is granted on them in the Defendants' favor, then the Court will likely have to decline to exercise supplemental jurisdiction over Mr. Collura's remaining state law claims. This ruling should not be misunderstood to mean that "the state claims [will] be dropped," Mot. Reconsider. 3, simply if the Court sets aside the entry of default. Those claims will proceed as well.
Mr. Collura also seeks to relitigate his claims against Judge Dembe and the City of Philadelphia, but the Court has already adjudicated these matters at least twice and will not do so again. See Reply to March 28th, Filing 3-6, 8-11 (claims against Judge Dembe); id. at 7-8 (claims against the City); Oct. 15, 2013 Order (Docket No. 8) (reconsideration denied); Mar. 28, 2014 Order (Docket No. 47) (reconsideration denied).
To the extent that Mr. Collura argues that his Complaint also alleged "claims that involve FJD practices and polic[i]es, whether or not it allegedly mistakenly says the City is liable for FJD, it still pleads FJD illegal policies, practices, customs," Reply to March 28th, Filing 6, the Court observes that 42 U.S.C. § 1983 claims of unconstitutional policies, practices, or customs under Monell v. Department of Social Services, 436 U.S. 658 (1978), cannot be brought against states or their subdivisions. The Supreme Court has always "limited" Monell's reach "to local government units which are not considered part of the State for Eleventh Amendment purposes," id. at 691 n.54. By contrast, "[s]uits against state officials in their official capacity . . . should be treated as suits against the State," Hafer v. Melo, 502 U.S. 21, 25 (1991), such that "neither a State nor its officials acting in their official capacities are `persons' under § 1983" due to their Eleventh Amendment immunity. Will v. Michigan Dep't of State Police, 491 U.S. 58, 70-71 (1989) (plurality opinion). The First Judicial District, of course, as an "integral component" of "a unified state judicial system . . . has Eleventh Amendment immunity." Benn v. First Judicial Dist., 426 F.3d 233, 240-41 (3d Cir. 2005). Consequently, Mr. Collura's attempted attack on the "FJD" cannot proceed as a matter of law.
Mr. Collura's general attacks on the Court, including his contention that the Court is "conducting private litigation with Plaintiff while the offenders sit on the sideline," Reply to March 28th, Filing 12, and threats of another recusal motion and his intention to sue the Court, are unwarranted, not to mention inappropriate—even for a layperson who feels unconstrained by professional obligations.
First, Mr. Collura is mistaken that "[t]he [Order] requesting court documents that imposed or indicated Plaintiff's sentence should be vacated immediately. It is a wholly frivolous request. . . ." Mot. Reconsider. 4. As the Court indicated in the March 28, 2014 Order, and again has observed in this Memorandum, the conditions of Mr. Collura's probation may well be relevant—including, for instance, to his ostensible Fourth Amendment claim that he should not have been subjected to urinalysis. In fact, Mr. Collura's own arguments in this litigation belie this contention: elsewhere, Mr. Collura contends that because the sentencing court's order did not impose drug tests, the tests were unlawful. See supra Section III.C; note 12 and accompanying text. Either the information is relevant to proving his claim, in which case it may also be relevant to the Defendants' defense, or it is not. Mr. Collura cannot have it both ways. In any case, the Court finds the information germane.
Furthermore, the Defendants have hardly been "sit[ting] on the sideline," as a review of the docket shows. Moreover, Federal Rule of Civil Procedure 55 permits the Court to "establish the truth of any allegation by evidence" and "investigate any other matter" upon a motion for default judgment. Fed. R. Civ. P. 55(b)(2)(C) & (D). By requiring the Defendants to submit evidentiary support for their factual allegations in their Proposed Answer and the defenses they briefed, the Court was hewing closely to the applicable standard of review. And requiring the Defendants to "attach[] any other necessary and/or helpful documentation," Mar. 28, 2014 Order 19, does not usurp trial counsel's role or render the Court partial; rather, it indicates, once again, that the Defendants have a burden to meet and permits them to attempt to do so.
Mr. Collura's Motion for Reconsideration also raises the specter of "another recusal motion" and argues that the Probation Officer Defendants "are going to get the most ultra biased and bogus defenses." Mot. Reconsider. 4-5. Several bases for recusal are enumerated under 28 U.S.C. § 455. Most pertinent to Mr. Collura's allegations appears to be § 455(a), under which the judge must recuse himself if "a reasonable person, with knowledge of all facts, would conclude that the judge's impartiality might reasonably be questioned." In re Kensington Int'l Ltd., 368 F.3d 289, 301 (3d Cir. 2004). Additionally, "§ 455(b) lists specific circumstances under which a judge `shall also disqualify himself.' One such provision, § 455(b)(1), requires recusal where a judge `has personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.' 28 U.S.C. § 455(b)(1)." Mar. 1, 2013 Order 3, Collura v. City of Philadelphia, No. 12-4398 (E.D. Pa.) (ECF No. 52), referenced in 2013 WL 3952522, at *2 (Aug. 1, 2013). No other provisions of § 455 seem even arguably applicable here.
As the Supreme Court has explained,
Liteky v. United States, 510 U.S. 540, 555 (1994) (citation omitted); accord, e.g., In re Dougherty, 393 F. App'x 843, 844-45 (3d Cir. 2010) (per curiam).
What Mr. Collura alleges against the Court here cannot possibly meet that standard. He is, as his numerous motions for reconsideration (Docket Nos. 7, 38, 43, 48) indicate, dissatisfied with this Court's rulings. Further, his argument that the Court has shown bias because it denied his Motion to Strike but did not deny the Defendants' Proposed Answer is misplaced. See Mot. Reconsider. 5. When the Court denied Mr. Collura's Motion to Strike as premature, it noted that the Motion was premature given that "[t]he Defendants have not in fact filed an Answer because the Court, as stated above, has not ruled on their Petition for Leave to File Answer," and that "[i]f and when the Court grants the Petition for Leave to File Answer, and the Defendants in fact file an Answer, Mr. Collura may refile this motion or a renewed version thereof." Feb. 10, 2014 Order ¶ 3 (Docket No. 37). By contrast, the Defendants had to be able to file their Proposed Answer and Amended Proposed Answer in order properly to move for the default to be set aside—that much is abundantly clear from the standard for setting aside defaults and default judgments, as set forth above, because the Court must examine, inter alia, a defendant's allegations to determine whether he has a meritorious defense.
It is an inescapable conclusion from Mr. Collura's filings that he is distrustful of federal judges generally.
Finally, the Court finds that it did not sanction Mr. Collura in its February 10, 2014 Order. The relevant paragraph of the February 10, 2014 Order states:
Feb. 10, 2014 Order ¶ 6 (Docket No. 37) (footnotes omitted).
Mr. Collura claims that "[s]anctions may include warnings, oral reprimands, or
In re Williams, 156 F.3d 86, 92 (1st Cir. 1998).
It is also true that "courts are in near complete agreement that an order rising to the level of a public reprimand is a sanction." Bowers, 475 F.3d at 543. But see Clark Equip. Co. v. Lift Parts Mfg. Co. Inc., 972 F.2d 817, 820 (7th Cir. 1992) ("[A]n attorney may not appeal from an order that finds misconduct but does not result in monetary liability, despite the potential reputational effects."). "The reason for the courts' consensus is that a public reprimand carries with it the formal censure of the court and may, in many cases, have more of an adverse effect upon an attorney than a minimal monetary sanction." Bowers, 475 F.3d at 543. But the fact that "[w]ords alone may suffice if they are expressly identified as a reprimand," Williams, 156 F.3d at 92 (emphasis added), does not mean that they always do suffice.
This Court "nowhere suggested that [its] comments regarding [Mr. Collura] were meant as a formal sanction." In re Vebeliunas, 246 B.R. 172, 174 (S.D.N.Y. 2000). The Court stated that it was "warn[ing Mr. Collura] that disrespectful language in future filings may be stricken on the Court's own motion" because "discourteous language," such as that which he had undisputably employed, including "[a]d hominem and other impertinent and unwarranted attacks . . . will not be tolerated." Feb. 10, 2014 Order ¶ 6. The Court's "comments served to explain why the court concluded that it was necessary" to warn Mr. Collura regarding his use of inappropriate language. Weissman, 179 F.3d at 1200. The Third Circuit Court of Appeals has not explored these issues in depth. See Bowers, 475 F.3d at 543-44 ("We need not examine that dichotomy in great detail in this case because both the order and opinion issued by the District Court in this case explicitly stated that the Court was sanctioning not only Bowers but also her attorneys."). But it is also abundantly clear that the Court's directive to Mr. Collura to use appropriate language was not "the repeated, explicit public reprimand [that] constitutes an appealable sanction." Id. at 544.
Moreover, it is clear that an order must "r[i]se above mere judicial criticism" or courtroom administration. Bowers, 475 F.3d at 543 (citing United States v. Talao, 222 F.3d 1133, 1138 (9th Cir. 2000)). "A reprimand generally carries with it a degree of formality." Talao, 222 F.3d at 1138. Indeed, "[r]eprimand . . . means to reprove severely," id. (citing Fed. Labor Union 23393 v. Am. Can Co., 100 A.2d 693, 695 (N.J. Super. Ct. 1953), not "to speak to (someone) in a way that expresses disapproval or criticism," "to tell or urge (someone) to do something," "to indicate duties or obligations to," "to express warning or disapproval to especially in a gentle, earnest, or solicitous manner," or "to give friendly earnest advice or encouragement to"—the definitions of "admonish," Merriam-Webster, http://www.merriam-webster.com/dictionary/admonish (emphasis added)—especially when the same sentence refers to the Court's action of "warn[ing]" Mr. Collura in conjunction with directing him to cease using offensive language.
Finally, the Court is unaware of case law, binding or persuasive (and Mr. Collura has cited none) that would suggest that the rationale for holding "a trial court's reprimand of a lawyer is immediately appealable, even though the court has not also imposed monetary or other sanctions upon the lawyer," Precision Specialty Metals, Inc. v. United States, 315 F.3d 1346, 1352 (Fed. Cir. 2003), would apply to a nonattorney pro se litigant. The rule respecting attorneys "reflects the seriously adverse effect a judicial reprimand is likely to have upon a lawyer's reputation and status in the community and upon his career." Id. (emphasis added); see also, e.g., United States v. Rivera, 613 F.3d 1046, 1052 (11th Cir. 2010) ("The Fifth Circuit, aware of its duty to assure that lawyers, as officers of the court, live up to their ethical responsibilities, exercised jurisdiction solely to review a finding of fact because of the importance of an attorney's professional reputation." (citations and internal quotation marks omitted)); Walker v. City of Mesquite, 129 F.3d 831, 832-33 (5th Cir. 1997) ("Peebles was reprimanded sternly and found guilty of blatant misconduct. That reprimand must be seen as a blot on Peebles' professional record with a potential to limit his advancement in governmental service and impair his entering into otherwise inviting private practice."). A nonattorney pro se litigant has little interest in his reputation as a litigator, and mere "injury to reputation" cannot be "the guiding precept," for if it were, "there [would be]no principled basis for distinguishing between a chastised attorney and any other participant in the judicial process who becomes the target of the presiding judge's opprobrium." Williams, 156 F.3d at 91; see also, e.g., Bolte v. Home Ins. Co., 744 F.2d 572, 573 (7th Cir. 1984) (rejecting a rule under which "[l]awyers, witnesses, victorious parties, victims, bystanders—all who might be subject to critical comments by a district judge— could appeal their slight if they could show it might lead to a tangible consequence such as a loss of income."); cf. also, e.g., Weissman, 179 F.3d at 1197 ("A vexatious litigant order imposed against a pro se litigant, however, is distinguishable from an order that limits an attorney's right to file pleadings on behalf of a client, i.e., to practice his or her profession."). It is quite likely for this reason that "even the broadest understanding of what constitutes an appealable sanction requires a finding of [professional] misconduct." Teaford v. Ford Motor Co., 338 F.3d 1179, 1182-83 (10th Cir. 2003) (emphasis added). Mr. Collura obviously is no professional, and the Court implied no such misconduct vis-à-vis Mr. Collura's only garden-variety, if morbidly creative, name-calling. Thus, the Court's directive does not "bear[] a greater resemblance to a reprimand than a comment that is merely critical of [Mr. Collura's] behavior," Adams v. Ford Motor Co., 653 F.3d 299, 306 (3d Cir. 2011). The Order contains no statement or other finding that Mr. Collura has violated a canon or code of professional conduct such as to constitute an "affront" to Mr. Collura's (nonexistent) professional reputation as a lawyer, id.
Upon consideration of Mr. Collura's "Motion to Strike and Destroy Scandalous, Impertinent, Erroneous, Material" ("Motion to Strike" Docket No. 59) (which is based on the false premise that the filing in question had been filed publicly on the docket in this case), Defendants' Response thereto (Docket No. 60), and Mr. Collura's Reply (Docket No. 64), the Court will deny Mr. Collura's Motion to Strike for the following reasons.
Contrary to Mr. Collura's expressed understanding, the Probation Officer Defendants' Supplemental Submission in Support of Their Motion to Set Aside the Clerk of Court's Entry of Default and Amended Proposed Answer (Docket No. 50) has always been under seal, and not accessible to the public. The Supplemental Submission was submitted on Friday, April 11, 2014. The Clerk of Court thereafter noted on the docket—on Monday, April 14, 2014—that such a motion had been received in court and "FILED UNDER SEAL." The Court then confirmed by its April 14, 2014 Order (Docket No. 51) that the Supplemental Submission was, indeed, to be filed under seal. The public has never had access to the Supplemental Submission, nor is there any plan to "release[ it] to the public." Mot. Strike 1.
Mr. Collura's other arguments must also be rejected. Mr. Collura has put a number of facts, including his mental health, at issue with this lawsuit because, perhaps most importantly, he was apparently assigned to the Mental Health Unit. Thus, he cannot now argue that the Probation Officer Defendants' service of the Supplemental Submission and its exhibits on Martha Gale, the Administrative Office of Pennsylvania Courts lawyer for former Defendant (and Judge) Pamela Pryor Dembe, violated the Health Insurance and Portability Act of 1996, Pub. L. No. 104-191. Further, his arguments that "[i]t makes no difference whether or not [he] has a valid conviction," Mot. Strike 1, or that "it makes no difference whether or not [he] was correctly assigned to [the Mental Health U]nit," id., are thus without merit. For substantially the reasons described in the Memorandum also issued today regarding whether the default should be lifted, the terms and conditions of Mr. Collura's probation and the circumstances of his interactions with the Probation Officer Defendants are indeed relevant. See supra Section III.C. To the extent that Mr. Collura seeks to contest the accuracy of the contents of the Exhibits attached to the Defendants' Supplemental Submission, see Mot. Strike at 4-8, he may do so through discovery as this litigation progresses. At this early stage of the litigation, the facts are in dispute rather than truths "know[n] to be fact," as Mr. Collura contends. Mot. Strike 5.
Upon consideration of Mr. Collura's "Motion to Invoke Judicial Estoppel [to] Disqualify Archer and Greiner" ("Motion to Disqualify," Docket No. 61), Defendants' Response thereto (Docket No. 63), and Mr. Collura's Reply (Docket No. 66), the Court will deny Mr. Collura's Motion to Disqualify as an unwarranted attempted third bite at the apple, under both the reconsideration standard and de novo.
As Defendants point out, Mr. Collura has tried to disqualify their counsel twice before. See "Plaintiff's Motion to Disqualify/Oppose Entry of Appearance by Oleg W. Nudelman, Jeffrey Scott, Archer and Greiner" (Docket No. 36); "Plaintiff's Motion to Disqualify Archer and Greiner" (Docket No. 45). These efforts were denied. Feb. 10, 2014 Order ¶ 5 (Docket No. 37); Mar. 28, 2014 Order 14-15, 19 (Docket No. 47).
Mr. Collura now argues that Archer and Greiner, counsel for the remaining Probation Officer Defendants, must be disqualified because
Mot. Disqualify 1-2.
Mr. Collura already raised this argument, albeit more concisely, in "Plaintiff's Motion to Disqualify Archer and Greiner" (Docket No. 45). It would be enough here simply to observe that Mr. Collura has offered nothing to meet the motion for reconsideration standard outlined already above. See generally, e.g., Quinteros, 176 F.3d at 677.
Despite the sufficiency of denial under the motion for reconsideration standard, the Court will attempt to explain one last time why the instant Motion must be denied.
Mr. Collura appears to contend that because, as in this case, "[t]he City of Philadelphia Law Department provides legal representation to First Judicial District employees upon request," Decl. of Jeffrey M. Scott ¶ 4.c, Docket No. 41, Ex. B, and because "the City was served on July 22nd," Mot. Invoke 1, the City's refusal to accept service for the Probation Officer Defendants on the basis that the Probation Officer Defendants were not City employees now preclude the City, by hiring Archer and Greiner, from representing the Probation Officer Defendants (and therefore treating the Probation Officer Defendants as City employees). Further, Mr. Collura observes, the Court "somehow [in] a prior filing declared that the City did not hire
Mr. Collura is correct that the Court inadvertently misstated in its March 28, 2014 Order that "there is no indication that it is the City that is hiring Archer and Greiner for the Probation Officer Defendants." Mar. 28 Order 15 (Docket No. 47). In fact, the office of Dominic J. Rossi, Deputy Court Administrator for the First Judicial District, "forwarded the summons and complaint to Elizabeth Mattioni, the Litigation Chair for the City of Philadelphia Law Department, via email, requesting legal representation for Defendants Nicholas Ford, Mary Politano, Steffen Boyd, Steven Austin, Deputy Chief Charles Hoyt and Chief Robert Malvesuto." Scott Decl. ¶ 4.f. (Notably, Mr. Collura never pointed to these statements in his original motion to disqualify. See Mot. Disqualify (Docket No. 45)). The language from the Court's March 28, 2014 Order might properly have read, for instance, that "there is no indication that the City had hired Archer and Greiner for the Probation Officer Defendants before the Probation Officer Defendants were served, or, even if it had, that either the City or Archer and Greiner had any legal duty to accept service on behalf of the Probation Officer Defendants."
None of this, however, changes the force of the Court's reasoning and the result it reached. As Mr. Scott's Declaration establishes, "[t]he City of Philadelphia Law Department provides legal representation to First Judicial District employees upon request." Scott Decl. ¶ 4.c. But the fact that the City has procured Archer and Greiner's representation for the Probation Officer Defendants does not mean that the Probation Officer Defendants are City employees or that on July 22, 2013, as counsel for the City, Archer and Greiner was obligated to accept service for the Probation Officer Defendants. As the Court explained earlier, the First Judicial District and its employees do not answer to the City of Philadelphia. Rather, as a matter of Pennsylvania constitutional law, the First Judicial District is a creature of the Commonwealth of Pennsylvania. As another Eastern District of Pennsylvania court observed in Scott v. Yates, No. 00-5024, 2001 WL 1636309 (E.D. Pa. Dec. 20, 2001):
The Pennsylvania Constitution provides:
Scott, 2001 WL 1636309, at *2 (E.D. Pa. Dec. 20, 2001) (footnotes omitted).
Indeed, the Pennsylvania statute states, in full:
42 Pa. Cons. Stat. Ann. § 3722. As the Supreme Court of Pennsylvania has noted, the "goods and services" that counties must provide to the courts and court personnel include legal services. Commonwealth ex rel. Jiuliante v. County of Erie, 657 A.2d 1245, 1249 (Pa. 1995). And, as Scott explains, counties (such as Philadelphia, which is "a First Class County," Callahan, 207 F.3d at 671 n.2) must provide services to the Commonwealth courts located within their districts, and that obligation does not morph a Commonwealth court into a creature of the county in which the court sits.
Thus, Archer and Greiner's actions and contentions are not at all inconsistent. Mr. Scott's statement that "[t]he City of Philadelphia Law Department provides legal representation to First Judicial District employees upon request" is not a statement that the City of Philadelphia Law Department is obligated to accept service on behalf of First Judicial District employees, nor is it a statement that the Probation Officer Defendants are City employees. Moreover, the exhibits tendered here establish that the Probation Officer Defendants requested legal representation from the City (consistent, as described above, not with an employment relationship, but rather with a narrow obligation imposed by Pennsylvania law on the City of Philadelphia) after they were properly served—on November 7, 2013, rather than on July 22, 2013, when, in Mr. Collura's view, the City improperly refused to accept service on behalf of the Probation Officer Defendants.
For the foregoing reasons, there is no basis for Mr. Collura's argument that Archer and Greiner must be disqualified as counsel for the Probation Officer Defendants.
Upon consideration of Mr. Collura's Motion for ECF Account (Docket No. 39) and his various filings in this case, the Court will deny Mr. Collura's Motion for ECF Account because Mr. Collura has proved unable to limit his filings to "respectful and appropriate language." Mar. 28, 2014 Order 19. To the contrary, Mr. Collura continues to hurl vitriol at lawyers, litigants, a lawyer no longer involved in the case (Mark Maguire), and the Court
For the foregoing reasons, the Court lifts the Clerk of Court's entry of the Probation Officer Defendants' default and denies Mr. Collura's Motion for Default Judgment and Motion for Judgment on the Pleadings. Additionally, the Court grants in part and denies in part Mr. Collura's Motion to Strike by striking several of the Defendants' proposed affirmative defenses. Finally, the Court denies Mr. Collura's motions seeking reconsideration, disqualification of opposing counsel, the striking of sealed defense exhibits, and an ECF account, and recusal.
An Order consistent with this Memorandum and a Scheduling Order follow.
The Court recognizes that Mr. Collura additionally presses several state law claims. E.g., Mot. J. Pldgs. 9 (Docket No. 58) ("Malicious Prosecution And Abuse of Process"). But, as the Court earlier held, "[t]hese [state law] claims are not relevant at this juncture (considering whether to lift default judgment), because if the Probation Officer Defendants establish complete defenses to Mr. Collura's federal claims, the Court will likely lose jurisdiction over Mr. Collura's Pennsylvania law-based claims." See Mar. 28, 2014 Order 2 n.2; see also id. at 18 n.8. If a defense, for purposes of default judgment, includes, in fact, an opportunity not to defend certain claims in state court, then loss of supplemental jurisdiction certainly counts. In any case, the Court observes that the Defendants have also raised several additional defenses to Mr. Collura's state law claims. See Defs.' Supp. Br. 19-22 (Docket No. 41). See also generally Section IV.C.
"Mr. Collura has failed to identify any similarly situated individual whom [Defendants] ha[ve] treated differently. . . . Accordingly, Mr. Collura's Equal Protection claim amounts to mere `general accusations' which are insufficient to prevail on a § 1983 claim." Collura v. Disciplinary Bd. of Supreme Court of Pa., No. 11-5637, 2013 WL 4479141, at *7 (E.D. Pa. Aug. 22, 2013), aff'd sub nom. Collura v. Maguire, ___ F. App'x ___, No. 13-3857, 2014 WL 2766760 (3d Cir. June 19, 2014). Accord also, e.g., Gomez v. Feissner, 474 F. App'x 53, 57-58 (3d Cir. 2012) ("Because [Plaintiff] does not allege that either [Defendant] treated him differently from any similarly situated individuals that actually existed, he fails to state a valid equal protection claim against them."); Santos v. Sec'y of DHS, 532 F. App'x 29, 34 (3d Cir. 2013) (per curiam) ("[T]he amended complaint asserts blanket, non-specific allegations that Santos was treated differently because of his race and/or gender. There are no specific allegations illustrating how Santos was treated differently than those similarly situated. Accordingly, the Equal Protection claims also fail."); Johnson v. Phila. Hous. Auth., 448 F. App'x 190, 193 (3d Cir. 2011) (per curiam) ("Johnson has not pleaded that he was treated differently from any similarly situated person or group.").
Furthermore, the lack of clarity on this issue might provide some basis—depending on the facts—for Defendants' qualified immunity defense, although the Court does not address the issue at this juncture. Cf., e.g., Lumsden v. Ramsey Cnty. Cmty. Corr. Dep't, No. 00-2223, 2003 WL 221806, at *6 (D. Minn. Jan. 28, 2003) ("[E]ven if a search of Plaintiff's home without a warrant would violate his Fourth Amendment rights, under the circumstances of his probation and the governing law, such right would not be so clearly established as to deprive Paul of immunity.").
In 2005, observing that the Rooker-Feldman "doctrine has sometimes been construed to extend far beyond the contours of the Rooker and Feldman cases," Exxon Mobil, 544 U.S. at 283, the Supreme Court began an effort to narrow the doctrine, first in Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, and, most recently in Skinner v. Switzer, 131 S.Ct. 1289. As the Supreme Court has now explained, "Rooker-Feldman is confined to cases of the kind from which the doctrine acquired its name: cases brought by state-court losers inviting district court review and rejection of the state court's judgments"—i.e., it does not apply to harms somehow related to, but not caused by, state court judgments. Skinner, 131 S. Ct. at 1297 (internal quotation marks and alterations omitted) (quoting Exxon Mobil, 544 U.S. at 284). See also generally, e.g., Mikhail v. Kahn, ___ F. Supp. 2d ___, ___, No. 13-5130, 2014 WL 114340, at *5-14 (E.D. Pa. Jan. 13, 2014), aff'd, ___ F. App'x ___, No. 14-1144, 2014 WL 3309172 (3d Cir. July 9, 2014).
The Heck defense is stricken without prejudice. If Mr. Collura seeks to renew an attack on the court-imposed conditions of his probation, he may well be subject to the defense, which, because it is a defense of failure to state a claim, may be raised sua sponte, as a number of courts have noted in passing. E.g., Hunt v. Michigan, 482 F. App'x 20, 21 (6th Cir. 2012) (per curiam), cert. denied, 133 S.Ct. 1999 (2013); Roberts v. O'Bannon, 199 F. App'x 711, 712-13 (10th Cir. 2006); Whatley v. Coffin, 496 F. App'x 414, 416 (5th Cir. 2012) (per curiam) ("Whatley was notified of the Heck-bar issue and afforded multiple opportunities to contest a dismissal on that ground."); Frost v. Fox, 53 F.3d 338, at *1-2 (9th Cir. 1995) (table opinion); cf. also, e.g., Bintliff-Ritchie v. Am. Reins. Co., 285 F. App'x 940, 943 (3d Cir. 2008) ("The District Court has the power to dismiss claims sua sponte under Rule 12(b)(6)." (citing Bryson v. Brand Insulations, Inc., 621 F.2d 556, 559 (3d Cir. 1980))). Further, Heck "is not waived by failure to plead it as an affirmative defense." Walker v. Munsell, 281 F. App'x 388, 389 (5th Cir. 2008) (per curiam) (state sovereignty-based rationale). Further, as a defense of failure to state a claim, the Heck doctrine is properly raised either in a motion to dismiss for failure to state a claim, Fed. R. Civ. P. 12(b)(6), or "(A) in any pleading allowed or ordered under Rule 7(a); (B) by a motion under Rule 12(c); or (C) at trial." Fed. R. Civ. P. 12(h)(2).
Of course, Mr. Collura appears to be avoiding the Third Circuit Court of Appeals' recent decision in another of his cases. Collura v. Maguire, ___ F. App'x ____, No. 13-3857, 2014 WL 2766760, at *1-2 (3d Cir. June 19, 2014) ("Collura's complaint does not allege facts that would show that there was a causal link between the filing of the lawsuits and Maguire's misstatements. . . . We also agree, for substantially the reasons set forth in the District Court's decision, that Collura failed to state a claim against Maguire for a violation of his constitutional rights based on injury to his reputation or for violations of his rights to equal protection or due process.").
