C. DARNELL JONES, II, District Judge.
Plaintiff Kevin Bandy, an inmate at the State Correctional Institution in Huntingdon, Pennsylvania (SCI-Smithfield), filed this pro se
Essentially, Plaintiff asks this Court to award him monetary damages against Defendants for injuries he sustained as a result of having been the subject of state prosecution for both felony retail theft charges and probation violation. Plaintiff argues he is entitled to such relief because: all persons involved, including the police, were driven by racial animus;
Upon a liberal reading of the averments in Plaintiff's Complaint, this Court interprets his claims as claims for unconstitutional search and arrest; malicious prosecution; conspiracy; and conversion, all deriving from the same bundle of facts.
Shortly after 10:00 a.m. on April 5, 2016, Bloomingdales LPO Waters observed two individuals enter Bloomingdales in King of Prussia and proceed to the Women's Burberry department. (Jun. 1, 2016 Habeas Hearing Transcript,
Approximately thirty minutes later, Plaintiff was traveling eastbound on Interstate 76 with one Darryl Adams and a woman when he was pulled over by Pennsylvania State Trooper Bunza.
Plaintiff alleges Probation Officer Khun thereafter
Subsequently, Plaintiff was prosecuted for felony retail theft, felony conspiracy, and felony receiving stolen property. (Pl.'s Montgomery County Court of Common Pleas Court Summary ("Court Summary") 2-3.) Plaintiff alleges the prosecution sought to convict him "because of racial profile, and his past." (Compl. 10.) On December 7, 2017, he pled guilty to felony retail theft and associated felony conspiracy
Plaintiff claims resulting mental and emotional injury, loss of opportunity, economic losses, and harm to reputation. (Compl. 8, 13-14.) He demands $800,000 to $2,000,000 for his trouble, the value of the stolen merchandise (which he estimates to be $35,000), plus $100,000 for mental damage, and he insists that the police be prosecuted for corruption. (Compl. 8, 13-14.) Alternatively, Plaintiff simply wants the police and the District Attorney to drop the charges to which he pled guilty. (Compl. 22.)
In deciding a Rule 12(b)(6) motion, courts must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (internal quotation marks and citation omitted). "A pro se complaint must be liberally construed and . . . can only be dismissed for failure to state a claim if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Wyche v. City of Phila., CIVIL ACTION NO. 15-3900, 2016 U.S. Dist. LEXIS 30671, *3, (F.D. Pa. March 10, 2016) (citing Estelle v. Gamble, 429 U.S. 97, 97 (1976)) (internal citations and quotations omitted). Nevertheless, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Phillips, 515 F.3d at 233 (internal quotation marks and citation omitted). This standard, which applies to all civil cases, "asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "[A]ll civil complaints must now set out sufficient factual matter to show that the claim is facially plausible." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (internal quotation marks omitted). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)). "Generally, in ruling on a motion to dismiss, a district court relies on the complaint, attached exhibits, and matters of public record." Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007).
Plaintiff's claim against Defendant Khun consists of three sentences, one of which encapsulates them all: "Daniel Khun wrote a false report, and committed perjury in court to say [Plaintiff] fail [sic] to report." (Compl. 11.) In response, Khun argues this Court lacks subject matter jurisdiction over Plaintiff's claim under the Rooker-Feldman doctrine. (Def. Khun's Mot. Dismiss, 6-8.) Because this argument challenges subject matter jurisdiction, a threshold issue, it will be addressed first.
The Rooker-Feldman doctrine provides that federal district courts lack jurisdiction over suits that are essentially appeals from state court judgments. Sims v. Gregg, CIVIL ACTION NO. 15-5426, 2017 U.S. Dist. LEXIS 28574, at *9 (E.D. Pa. Feb. 28, 2017); see also Parkview Assocs. Pshp. v. City of Lebanon, 225 F.3d 321, 324 (3d Cir. 2000). Khun submits that Plaintiff's claim against him amounts to a challenge to Montgomery County Court of Common Pleas' ("CCP") adjudication that Plaintiff violated the terms of his probation and, as such, this Court has no jurisdiction over the claim under the Rooker-Feldman doctrine.
Regelman v. Weber, Civil Action No. 10-675, 2012 U.S. Dist. LEXIS 140398, at *18-19 (E.D. Pa. Sep. 28, 2012) (internal quotations and alterations omitted) (quoting Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 166 (3d Cir. 2010) (quoting Exxon Mobil Corp. v. Saudi Basic Industries Corporation, 544 U.S. 280, 284 (2005))). Claims that fulfill these elements were either adjudicated in state court or could be described as "inextricably intertwined" with claims adjudicated in state court. Id. at * 19. Because the facts and pleadings related to Plaintiff's convictions for felony retail theft and probation violation are so intertwined,
The low hanging fruit: There is no dispute regarding the fact of Plaintiff's convictions for felony retail theft and probation violation by the Montgomery County CCP, and public documents reflect same.
Next this Court must ascertain whether Plaintiff complains of injuries caused by state-court judgments. The specific injuries alleged by Plaintiff are mental injury, emotional and mental anguish, economic loss, harm and danger to his life in the prison environment, harm to his reputation,
Finally, Plaintiff is clearly inviting this Court to review and reject the state court judgment when he asserts "[t]he reason I should be awarded [damages] is because I was improper [sic] arrested and charged," and when he states "[a]ll I want is these [police and prosecutor] to dismiss my case because of a [sic] improper arrest (lack of evidence)." (Compl. 14, 22.) Plaintiff's Complaint sounds in collateral attack. He complains generally to this Court of the underpinnings of his state court judgment—his arrest, his charges, and the evidence used to convict him (upon which the state court passed judgment)—and he wants his case dismissed.
Assuming arguendo this Court had subject matter jurisdiction over Plaintiff's claims, they would still be dismissed for failure to state a claim under the federal pleading standard. Though courts must liberally construe the claims of a pro se litigant, Wyche, 2016 U.S. Dist. LEXIS 30671 at *3, when asserting a cause of action pursuant to 42 U.S.C. § 1983, even a pro se litigant may not rely on vague and conclusory allegations, but instead "must set forth with factual specificity the conduct of defendants alleged to have harmed the plaintiff." Darr v. Wolfe, 767 F.2d 79, 80-81 (3d Cir. 1985); see also Rivera v. Chester Cnty., CIVIL ACTION NO. 15-5609, 2017 U.S. Dist. LEXIS 45755, at *8 (E.D. Pa. March 28, 2017) ("even a pro se complaint must conform with the [pleading] requirements"). Consisting solely of vague, conclusory, "the defendant unlawfully harmed me" allegations, Plaintiff's Complaint would still be dismissed for failure to satisfy the pleading requirements if this Court had subject matter jurisdiction over it.
Furthermore, Upper Merion Police Defendants argue Officers Smull, Staquet, and Geckle should be dismissed outright because Plaintiff pleads no facts involving them. (Upper Merion Police Defendants' Mot. Dismiss, 5.) Said Defendants are correct.
The Third Circuit requires a plaintiff to show personal participation by defendants who are alleged to have harmed him. See Gandy v. Graterford, 646 F. App'x 144, 145 (3d Cir. 2016) (citing Iqbal, 556 U.S. at 676); Colburn v. Upper Darby Township, 838 F.2d 663, 666 (3d Cir. 1988) (requiring plaintiffs to "identify[] the particular conduct of defendants that is alleged to have harmed the plaintiffs."); Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (requiring that allegations "be made with appropriate particularity"). Officers Smull, Staquet, and Geckle are merely mentioned in the caption of Plaintiff's Complaint and in the list of defendants. He does not plead any personal participation by Officers Smull, Staquet, or Geckle. Therefore, Upper Merion Police Defendants' Motion to Dismiss Plaintiff's claims against said officers would be granted even if this Court had subject matter jurisdiction over Plaintiff's Complaint.
Assuming arguendo this Court had subject matter jurisdiction over Plaintiff's claims and the federal pleading rules did not apply, his claims would still fail. Plaintiff sues all Moving Defendants under the Civil Rights Act, 42 U.S.C. § 1983.
42 U.S.C. § 1983.
"To prevail on a § 1983 claim, [a plaintiff must] show, first, that she was deprived of a constitutional right and, second, that the alleged deprivation was committed by a person acting under color of state law. Harvey v. Plains Twp. Police Dep't, 635 F.3d 606, 609 (3d Cir. 2011) (internal quotation marks omitted) (citing West v. Atkins, 487 U.S. 42, 48 (1988)). Action under color of state law requires that one liable under § 1983 have exercised power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." Id. (citing Abbott v. Latshaw, 164 F.3d 141, 146 (3d Cir. 1998)) (internal quotation marks omitted).
Plaintiff's claims against Bloomingdales Defendants would be dismissed because said Defendants are private actors, not state actors, and, therefore, they are not susceptible to § 1983 action. Id.
With respect to the remaining Moving Defendants, upon a liberal reading of the averments in Plaintiff's Complaint, this Court construes his claims against said Defendants as alleging deprivation of his Fourth Amendment right to be free from unreasonable searches and seizures, and state law claims
Plaintiff's Complaint candidly states that Trooper Bunza "is the only innocent one . . . because he left the scene [before] the corruption began" (Compl. 22), yet he still names Bunza as a defendant. Since Trooper Bunza simply pulled Plaintiff over and held him until the Upper Merion Police arrived, at which point Bunza left, the only potential claim that can be construed from Plaintiff's averments with respect to Trooper Bunza is a claim for unconstitutional traffic stop.
Warrantless seizure by a police officer "is reasonable under the Fourth Amendment where there is probable cause to believe that a criminal offense has been or is being committed." United States v. Fredericks, 684 F. App'x 149, 152 (3d. Cir. 2017); cf. Barna v. City of Perth Amboy, 42 F.3d 809, 819 (3d Cir. 1994) (indicating a seizure is unconstitutional when it is effected with unreasonable force or made without probable cause to believe a crime has been committed).
Plaintiff, who, though pro se, bears the burden of showing lack of probable cause, does not shoulder his burden. He makes a conclusory allegation of racial profiling as the cause for arrest without providing any facts to support his assertion. This does not satisfy the pleading standard. Phillips, 515 F.3d at 233. His assertion raises only a sheer possibility that Bunza acted unlawfully, which is not sufficient. Iqbal, 556 U.S. at 678.
Notwithstanding Plaintiff's deficient pleading, a reasonable reading of the facts provided in the Complaint indicates Bunza received information from Upper Merion Police about Plaintiff's crime and getaway car,
Additionally, having pled guilty to the crime that indirectly prompted Trooper Bunza to stop him, Plaintiff cannot now claim there was no probable cause. See Ross v. Donkocik, 60 F. App'x 409, 410, n.1 (3d Cir. 2003) ("guilty plea negates . . . argument that [police] did not have probable cause to arrest") (citing Heck v. Humphrey, 512 U.S. 477, 486-87 (1994)). Furthermore, a request for damages for an allegedly unconstitutional arrest is not cognizable unless the plaintiff first proves that the arrest was declared invalid by an authorized state tribunal or called into question by a federal court upon issuance of a writ of habeas corpus. Heck, 512 U.S. at 486-487. Therefore, as Plaintiff indicated, Trooper Bunza is "innocent" and Plaintiff's unlawful arrest claim
Likewise, Plaintiff cannot claim his arrest by Upper Merion Police is not based on probable cause after having pled guilty to the crimes for which they arrested him. Ross, 60 F. App'x at 410, n.1. Nor is his request for damages due to his arrest cognizable when he has not alleged, let alone proven, it was declared invalid. Heck, 512 U.S. at 486-487.
To the extent Plaintiff argues unlawful, unwarranted search, his claim would be dismissed if this Court had jurisdiction to hear it. To state a § 1983 claim for unlawful search, a plaintiff must show the search was unreasonable and it "caused him actual, compensable injury." Tucker-Smart v. Bucks Cnty., Pa., CIVIL ACTION NO. 2:15-cv-0210, 2015 U.S. Dist. LEXIS 114317, at *16 (E.D. Pa. Aug. 28, 2015). "The automobile exception to the warrant requirement permits law enforcement to seize and search an automobile without a warrant if probable cause exists to believe it contains contraband." United States v. Williams, 898 F.3d 323, 340 (3d Cir. 2018) (citing United States v. Burton, 288 F.3d 91, 100 (3d Cir. 2002)) (internal quotation marks omitted). "To find probable cause to search, there needs to be a fair probability that contraband or evidence of a crime will be found in a particular place." United States v. Burton, 288 F.3d 91, 103 (3d Cir. 2002).
A reasonable reading of the facts provided by Plaintiff indicates the police had probable cause to believe Plaintiff's getaway vehicle contained stolen merchandise. Bloomingdales LPO provided Upper Merion Police with a description of the theft he observed and the getaway vehicle. Since the vehicle matched that description and was stopped within thirty minutes of the time the theft occurred, within a thirty-minute radius,
"[U]nder Pennsylvania law, conversion is the deprivation of another's right of property, or use or possession of a chattel, or other interference therewith, without the owner's consent and without legal justification." Universal Premium Acceptance Corp. v. York Bank & Trust Co., 69 F.3d 695, 704 (3d. Cir. 1995) (internal quotation marks omitted).
To the extent Plaintiff sues for loss of the items he was convicted of having stolen, his conversion claim is dismissed because it is axiomatic that he has no property right in and is not otherwise entitled to the items he stole.
To the extent Plaintiff requests compensation for conversion of "other stuff' removed from his car at the time of arrest, his allegations are vague, bald, and conclusory. Therefore, they fail to satisfy the federal pleading standard. Phillips, 515 F.3d at 233. Furthermore, adding particular information to his allegations would not cure this claim because Plaintiff also fails to show the police did not have legal justification to take custody of his belongings incident to his arrest. See Universal Premium Acceptance Corp., 69 F.3d at 704.
Plaintiff included the word "conspiracy" in the context of his conversion allegations. Notwithstanding that mere inclusion of the name of a potential claim does not satisfy the federal pleading standard, Phillips, 515 F.3d at 233, conspiracy is only unlawful to the extent the object of the conspiracy is unlawful. Pfizer Inc. v. Giles, 46 F.3d 1284, 1292 (3d Cir. 1994) ("To prove civil conspiracy in Pennsylvania . . . a plaintiff must show that two or more persons combined or entered an agreement to commit an unlawful act or to do an otherwise lawful act by unlawful means.") (citing Burnside v. Abbott Lab., 505 A.2d 973, 982 (Pa.Super. 1985)). Because Plaintiff failed to show unlawful conversion, his conspiracy claim is also dismissed for, among other reasons, failure to establish the underlying offense. Id.
Plaintiff levels accusations of perjury-ridden, racist, baseless, fraudulent prosecution. This Court construes his accusations as a claim for malicious prosecution.
Mann v. Brenner, 375 F. App'x 232, 236 (3d Cir. 2010). Plaintiff merely alleges in a conclusory fashion that defendants acted maliciously. He does not plausibly "demonstrate" as much. Plaintiff also fails to show defendants prosecuted him without probable cause
Assuming arguendo this Court had jurisdiction over Plaintiff's § 1983 claim against Defendant Khun, said claim would be dismissed as non-cognizable under Heck because Plaintiff has not shown his conviction for probation violation was declared invalid or otherwise called into question by anyone besides himself. 512 U.S. at 486-487.
For the reasons set forth above, Moving Defendants' Motions to Dismiss are granted. Normally, when justice so requires, leave to amend should be freely given. Fed. R. Civ. P. 15(a). However, because this Court lacks subject matter jurisdiction over Plaintiff's claims and because he included no facts in his sixty-nine (69) page Complaint (including exhibits) to suggest a violation of his rights, amendment would be futile. See Wagner v. Unemployment Comp. Bd. of Review, 550 F. App'x 99, 100 (3d Cir. 2014); Abuhouran v. SSA, 291 F. App'x 469, 472 (3d Cir. 2008).
An appropriate Order follows.