LISA PUPO LENIHAN, Magistrate Judge.
Plaintiff Dion Lee McBride ("Plaintiff") filed a Complaint on September 8, 2014, with a subsequent Amended Complaint filed on December 23, 2014.
The following background is taken from the Commonwealth's Motion to Dismiss in Civil Action No. 13-54, wherein Plaintiff made similar challenges to the VOP Detainer and his violation of probation proceedings by way of a petition for writ of habeas corpus. The Court takes judicial notice of those proceedings and of the exhibits attached to the Commonwealth's Motion to Dismiss in CA No. 13-54, which are all public records in connection with Plaintiff's state court criminal proceedings, and also the exhibits attached to Defendant's Motion to Dismiss in this case.
McBride v. State of Pennsylvania, CA No. 2:13-cv-54, ECF No. 12 (W.D. Pa. Apr. 5, 2013) (Commonwealth's Motion to Dismiss Petition for Writ of Habeas Corpus) (footnotes and citations omitted).
Defendant has filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). The United States Court of Appeals for the Third Circuit summarized the standard to be applied in deciding motions to dismiss filed pursuant to Rule 12(b)(6):
Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014).
Because Plaintiff is proceeding without the aid of counsel, he must be accorded substantial deference and liberality. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (explaining that a pro se complaint, "however inartfully pleaded" must be held to "less stringent standards than formal pleadings drafted by lawyers"); Hughes v. Rowe, 449 U.S. 5, 9 (1980). Nevertheless, pro se litigants still must allege sufficient facts in their complaints to support a claim. Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citing Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996)). They also must abide by the same procedural rules that apply to all other litigants. Id. (citing McNeil v. United States, 508 U.S. 106, 113 (1993)). As summarized by the United States Court of Appeals for the Eighth Circuit:
Stone v. Harry, 364 F.3d 912, 915 (8th Cir. 2004). Consequently, a court "will not supply additional facts, nor will [it] construct a legal theory for plaintiff that assumes facts that have not been pleaded." Id. (quoting Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989)).
Plaintiff's claims stem from the issuance of a VOP Detainer that was lodged against him on August 20, 2012. Plaintiff believes that the VOP Detainer was issued to keep him confined in jail so that he would be unable to gather important documents necessary to aid in his defense against the new criminal charges that were brought against him at CP-02-CR-0010837-2012. He claims that the Attorney General's Office had Defendant issue the VOP Detainer after they found out that he was going to be released pursuant to the PBPP's Detainer Lift on August 21, 2012. Plaintiff states that, as a result of being held on the VOP Detainer, his landlord repossessed his property and destroyed important documents, including the contact information for his employees who he claims are necessary defense witnesses.
Plaintiff challenges Defendant's authority and jurisdiction to issue the VOP Detainer and also claims that he was denied due process in connection with his violation of probation proceedings. He further claims that he was denied his Sixth Amendment right to secure witnesses in his favor for his criminal defense and that he was falsely imprisoned because the VOP Detainer was issued unlawfully.
As an initial matter, the Court finds that Plaintiff's claims are barred by the doctrine of Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the Supreme Court ruled that a section 1983 claim for damages arising from a criminal conviction does not accrue "for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid," until the plaintiff proves that the "conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus." Id. at 486-87 (footnote omitted).
Here, all of Plaintiff's claims stem from the issuance of the VOP Detainer. While a final hearing on the revocation of Plaintiff's probation has not yet occurred, it is clear that Plaintiff's success in this action would necessarily imply the invalidity of his detention for the alleged probation violations. Plaintiff has not alleged, and public records do not indicate that he has been acquitted of the charges that prompted his detention for violating his probation or that his probation has already been revoked and overturned on appeal or otherwise declared invalid. In light of the foregoing, Plaintiff's claims are barred by Heck unless or until he has met the conditions of Heck. See Shreve v. Minium, No. 1:cv-12-2128, 2012 WL 6137992 (M.D. Pa. Nov. 19, 2012) (finding the plaintiff's challenge to his probation violation detainer and probation revocation sentence barred under Heck); Pollard v. Luzerne County Adult Probation, No. 1:11-cv-2195, 2012 WL 4101889 (M.D. Pa. Sept. 18, 2012) (same). As such, his Complaint will be dismissed without prejudice. See Brown v. City of Philadelphia, 339 F. App'x 143, 145-46 (3d Cir. 2009) (dismissal under Heck should be without prejudice).
Given the Court's decision that Plaintiff's claims are barred under Heck, and that this case is subject to dismissal on this basis alone, further inquiry into such claims is not required. However, the Court will briefly address Defendant's additional meritorious defenses to Plaintiff's claims.
Defendant is entitled to Eleventh Amendment immunity to the extent he is sued in his official capacity. Pursuant to the Eleventh Amendment to the Constitution, state agencies and state officials who are sued in their official capacity are generally immune from lawsuits in federal courts brought against them by citizens. Seminole Tribe v. Florida, 517 U.S. 44, 54 (1996). Under the Eleventh Amendment, the Commonwealth's immunity exists as a matter of law unless waived by the state, or expressly and unequivocally abrogated by Congress. Congress has not expressly abrogated this constitutional immunity with respect to federal civil rights lawsuits against the Commonwealth of Pennsylvania, and the Commonwealth clearly has not waived its immunity. Quite the contrary, the Commonwealth has specifically invoked its Eleventh Amendment immunity in 42 Pa. C.S.A. § 8521(b). Thus, while Pennsylvania has, by law, waived sovereign immunity in limited categories of cases brought against the Commonwealth in state court, see 42 Pa. C.S.A. § 8522, Section 8521(b) flatly states that: "Nothing contained in this subchapter shall be construed to waive the immunity of the Commonwealth from suit in federal courts guaranteed by the Eleventh Amendment to the Constitution of the United States." 42 Pa. C.S.A. § 8521(b).
The constitutional protections afforded to the states under the Eleventh Amendment also expressly apply to claims involving the various county common pleas court agencies, like county probation offices, which are defined by statutes as institutions of state governing. Haybarger v. Lawrence Cnty. Adult Prob. And Parole, 551 F.3d 193, 198 (3d Cir. 2008) ("Pennsylvania's judicial districts, including their probation and parole departments, are entitled to Eleventh Amendment immunity"); see, e.g., Callahan v. City of Philadelphia, 207 F.3d 668, 672 (3d Cir. 2000) (noting that "[a]ll courts and agencies of the unified judicial system" are part of the Commonwealth government); Walters v. Washington County, No. 06-1355, 2009 WL 7936639 (W.D. Pa. Mar. 23, 2009); Van Tassel v. Lawrence County Domestic Relations Section, No. 09-266, 2009 WL 3052411 (W.D. Pa. Sept. 22, 2009). Therefore, the Court finds that Defendant, to the extent he is sued in his official capacity, is entitled to Eleventh Amendment immunity.
Plaintiff claims that Defendant did not have the authority to issue the VOP Detainer because the sentencing court, i.e., Judge Todd, had not ordered his detainment. Plaintiff's argument is predicated on the fact that the VOP Detainer is not signed by Judge Todd and there is no entry on the docket indicating that it was issued by Judge Todd.
Defendant is identified as a Probation Officer assigned to the Court Liaison Unit and employed by the Allegheny County Adult Probation Department in the Court of Common Pleas, Fifth Judicial District of Pennsylvania. A county probation department operates under the authority of the court. See Commonwealth v. Druce, 868 A.2d 1232, 1238 (Pa. Super. 2005) (Dauphin County Adult Probation and Parole Office is an arm of the court); L.J.S. v. State Ethics Com'n, 744 A.2d 798, 802 (Pa. Commw. Ct. 2000) (County's chief adult probation officer was a "judicial officer"). The courts of common pleas in Pennsylvania delegate authority to county probation officers to detain defendants who violate probation. See Commonwealth v. Kelly, 931 A.2d 694, 698 (Pa. Super. 2007) (county probation department, as agent of court, was authorized to detain defendant for violating his probationary sentences); see also 42 Pa. C.S.A. § 9913 (a probation officer shall have police powers and authority throughout this Commonwealth to arrest, with or without a warrant, writ, rule or process, any person on probation, intermediate punishment, or parole under the supervision of the court for failing to report as required by the terms of that person's probation, intermediate punishment or parole or for any other violation of that person's probation, intermediate punishment or parole.) As such, Defendant, as an agent of the court, had the authority to issue the detainer against Plaintiff for allegedly violating his probation. There is no law of which the Court is aware, or to which Plaintiff has cited, that prohibits county probation officers from issuing violation of probation detainers.
Plaintiff next claims that Defendant did not have jurisdiction to issue the VOP Detainer based on charges that were filed before he started his term of probation. He claims that because the alleged criminal activity for which the VOP Detainer was issued occurred prior to the start of his probation it cannot be a violation of that probation since it was not yet in effect. Thus, Plaintiff maintains that the trial court had no authority to detain him for probation violations in CP-02-CR-0001101-2007 solely on the basis of his arrest for the charges at CP-02-CR-0010837-2012.
Plaintiff concedes that, in the Commonwealth of Pennsylvania, a criminal defendant's probation may be revoked by the sentencing court prior to the actual commencement of his or her probation. However, he argues that there can be a revocation only when there has been a new criminal conviction, not simply an arrest. This exact argument was made by the appellant and rejected by the Superior Court of Pennsylvania in Commonwealth v. Hoover, 909 A.2d 321 (Pa. Super. 2006).
In Hoover, the appellant challenged the trial court's authority to revoke both of the probationary periods of his DUI sentences before he had begun to serve either of them after he was found intoxicated while on work release. Distinguishing his case from those where trial courts had revoked probationary periods from defendants who had committed new criminal offenses before their probation periods had commenced, the appellant in Hoover argued that the trial court exceeded its authority to do so in his case because he did not violate the law by becoming intoxicated. Quoting its prior holding in Commonwealth v. Wendowski, 420 A.2d 628 (Pa. Super. 1980), the Superior Court disagreed, stating
Hoover, 909 A.2d at 323-34 (quoting Wendowski, 420 A.3d at 630) (emphasis in original). While the appellant in Hoover did not "violate the law by becoming intoxicated," the trial court revoked his probation concluding that the appellant would be difficult to supervise and posed a risk to the community due to his history of alcohol abuse and inability to control his addiction to alcohol. The Superior Court affirmed the trial court's revocation of probation because the appellant had demonstrated to the trial court that he was "unworthy of probation" and that it "would not be in subservience to the ends of justice [or] the best interests of the public." Id.
Even though Plaintiff's probation has not yet been revoked, the sentencing court has the authority to revoke his probation notwithstanding the fact that his probationary period has not yet commenced. Additionally, to the extent Plaintiff argues that, pursuant to Commonwealth v. Sims, 770 A.2d 346, 352 (Pa. Super. 2001), "an arrest alone, without facts to support the arrest, is not sufficient to revoke probation or parole[,]" Plaintiff is reminded that he has not yet appeared before the sentencing court in a final probation revocation proceeding. He has only been detained on the alleged probation violations based on an arrest for new criminal activity, and he will not appear for a final probation violation hearing until the resolution of those charges at CP-02-CR-0010837-2007. Finally, to the extent Plaintiff argues that a determination of guilt must be made before a violation of probation detainer can be issued, he is incorrect. The Supreme Court has stated that probation violation detainers "may easily be based on arrests alone". Carchman v. Nash, 473 U.S. 716, n.3 (1985).
Plaintiff next alleges several violations of due process in connection with his violation of probation proceedings, namely that he was denied a Gagnon I hearing and written notice of the nature of the alleged violations of his probation.
Due process is a flexible concept and calls for such procedural protections as the, particular circumstances require. Morrisey v. Brewer, 408 U.S. 471, 481 (1972). A defendant has a liberty interest in the revocation of probation. Gagnon v. Scarpelli, 411 U.S. 778, 781 (1973) (minimum due process requirements for probation revocation are identical to those established in Morrisey v. Brewer, supra, for parole revocation). Although revocation of probation, like revocation of parole, is not part of a criminal prosecution, it entails a loss of liberty and minimum due process must therefore be accorded the probations. Commonwealth v. Davis, 336 A.2d 616, 620 (Pa. Super. Ct. 1975) (citing Gagnon, 411 U.S. at 781). Specifically, a two-step revocation procedure must be followed: a probationer is entitled to two hearings, one is a preliminary hearing at the time of his arrest and detention to determine whether there is probable cause to believe that he has committed a violation of probation (a Gagnon I hearing), and another, more comprehensive hearing prior to a final revocation decision (a Gagnon II hearing). See id. at 620.
When the alleged violation of probation is the commission of a crime, the Gagnon I hearing requirement is satisfied by a preliminary hearing at which the prosecutor has proved a prima facie case. Davis, 336 A.2d at 622-23 (1975); see also Commonwealth v. Parker, 366 A.2d 941 (Pa. Super. Ct. 1976) ("We have . . . held that a preliminary hearing resulting in a parolee's being held for court complies with the requirements of a Gagnon I hearing."). This is because "the Gagnon I hearing is similar to the preliminary hearing afforded all offenders before a Common Pleas Court trial: the Commonwealth must show probable cause that the violation was committed." Davis, 336 A.2d at 621.
On April 25, 2012, Plaintiff was arrested and detained pursuant to the new criminal charges at CP-02-CR-0010837-2012. On August 17, 2012, Plaintiff received a criminal preliminary hearing at which it was determined there was probable cause for his arrest and detainment. Thus, Plaintiff received adequate procedural due process for purposes of his probation violation at CP-02-CR-0001101-2007.
Furthermore, Plaintiff's claim that he did not receive written notice of the nature of his alleged probation violations is rebutted by his signature on the PBPP's "Notice of Charges and Hearing" form that was given to him on May 10, 2012, and which listed "new criminal charges" as the reason for his violation of probation detention hearing.
Plaintiff claims that he was denied his Sixth Amendment right to offer testimony of favorable witnesses and "to have compulsory process for obtaining witnesses in his favor." U.S. CONST. amend. VI. The Supreme Court has extended the Compulsory Process clause to cover a criminal defendant's right to present witnesses or evidence in his defense, "even though [such a right] is not expressly described in so many words." Taylor v. Illinois, 484 U.S. 400, 409 (1988).
However, the Compulsory Process clause protects the presentation of a defendant's case from unwarranted interference by the government, not conduct of a private individual like Plaintiff's landlord. Actions by private individuals qualify as "state action" only when the private actor (1) has engaged in the performance of a public function traditionally reserved for the state, (2) has acted with the help of or in concert with state officials, or (3) has a symbiotic relationship with the State such that the State has "so far insinuated itself into a position of independence" with the private actor that it must be considered a joint participant in the challenged activity. Mark v. Borough of Hatboro, 51 F.3d 1137, 1142 (3d Cir. 1995) (citations omitted). In the present case, Plaintiff's landlord is not a defendant, and, even if he were, there is no allegation or argument to suggest that he engaged in any kind of state action. Therefore, this claim fails because there was no action taken under color of state law; a basic requirement for a section 1983 claim.
Finally, Defendant, as an employee of Allegheny County, is entitled to governmental immunity against Plaintiff's state tort claim of false imprisonment. In this regard, the Pennsylvania Political Subdivision Tort Claims Act ("PSTCA"), 42 Pa. C.S.A. §§ 8541-64, grants governmental immunity to local agencies, including municipalities, against claims for damages on account of any injury to a person or to property caused by their own acts or the acts of their employees. Immunity is abrogated, however, for negligent acts falling into one of eight proscribed categories, 42 Pa. C.S.A, § 8542(b), none of which apply in this case.
An employee of local agency acting within the scope of his duties enjoys the same immunity as the local agency, 42 Pa. C.S.A. § 8545, but the employee may be stripped of his immunity when he engages in conduct that is found to constitute "a crime, actual fraud or willful misconduct," id. at § 8550. In other words, the PSTCA extends immunity to negligent acts by employees except those falling into the eight proscribed categories, but abrogates immunity for individual employees who commit intentional torts. See, e.g., Maloney v. City of Reading, No. 04-5318, 2006 WL 305440, at *5 (E.D. Pa. Feb. 8, 2006).
There is nothing in the Complaint to suggest that Defendant was not acting within the scope of his employment when he issued the VOP Detainer, or engaged in criminal or willful misconduct which would strip away his immunity. Nevertheless, Plaintiff fails to state a claim against Defendant even if he were not entitled to such immunity.
To state a claim for false imprisonment, a plaintiff must sufficiently allege the following two elements: "(1) the detention of another person, and (2) the unlawfulness of such detention." Renk v. City of Pittsburgh, 641 A.2d 289, 293 (Pa. 1994). An arrest based upon probable cause would be justified, regardless of whether the individual arrested was guilty or not. Id.; see also Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) ("The existence of probable cause to arrest constitutes justification and `is a complete defense to an action for false arrest,' whether that action is brought under state law or under § 1983.") Here, Plaintiff received a preliminary hearing on August 17, 2012, at which time probable cause was found for his arrest in CP-02-CR-0010837-2012. Because this arrest served as the basis for the issuance of the VOP Detainer in CP-02-CR-0001101-2007, Plaintiff cannot state a claim for false imprisonment.
Accordingly, this 3rd day of September, 2015,
The Court notes that Plaintiff prematurely filed a habeas corpus petition challenging his violation of probation detention. That petition, docketed at Civil Action No. 13-54, was dismissed without prejudice because Plaintiff is still a pretrial detainee in the course of ongoing state criminal proceedings and has not yet exhausted his state court remedies. In CA No. 13-54, the Court noted that if convicted, Plaintiff would be brought before the Court of Common Pleas to address his revocation of probation in a final hearing before Judge Todd. According to Plaintiff's docket sheet for his criminal case at docketed at CP-02-CR-0010837-2012, he is still awaiting trial, and, therefore, he has not yet had his final revocation hearing for his criminal case at CP-02-CR-0001101-2007.
As this Court pointed out, Plaintiff will have an opportunity to raise, or resolve, his federal claims in state court before or during his proceedings, or in a direct or post-conviction appeal. Only after he has exhausted his state court remedies can he file a petition for writ of habeas corpus in federal court challenging his probation revocation conviction and sentence. However, as discussed, a § 2254 habeas petition is the proper vehicle for Plaintiff to raise these claims; not a civil rights action. See Preiser, 411 U.S. at 499 (holding that a civil rights action is a proper remedy for a prisoner who claims that his conditions of confinement violate the constitution, but is not challenging the fact or length of his custody).
