Opinion
Case No. 1:20-cv-164
04-08-2021
BRIAN DOUGLAS ANTHONY, Plaintiff v. A.D.A. MICHAEL BURNS, et al., Defendants
UNITED STATES DISTRICT JUDGE SUSAN PARADISE BAXTER REPORT AND RECOMMENDATION
I. Recommendation
It is hereby recommended that Plaintiff Brian Douglas Anthony's claims be dismissed, with prejudice, in accordance with 28 U.S.C. § 1915(e).
II. Report
A. Standards
Because he is proceeding in forma pauperis in this action, Anthony's claims are subject to the screening provisions in 28 U.S.C. § 1915(e). Among other things, that statute requires the Court to dismiss any action in which the Court determines that the action is "frivolous or malicious; fails to state a claim upon which relief may be granted; or seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2); Muchler v. Greenwald, 624 Fed. Appx. 794, 796-97 (3d Cir. 2015). A frivolous complaint is one which is either based upon an indisputably meritless legal theory (such as when a defendant enjoys immunity from suit) or based upon factual contentions which are clearly baseless (such as when the factual scenario described is fanciful or delusional). Neitzke v. Williams, 490 U.S. 319, 327 (1989). The determination as to whether a complaint fails to state a claim upon which relief may be granted is governed by the same standard applicable to motions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. D'Agostino v. CECOM RDEC, 436 Fed. Appx. 70, 72 (3d Cir. 2011) (citing Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999)).
As a pro se litigant, Plaintiff's allegations, "however inartfully pleaded," must be held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520-521 (1972). Moreover, under the liberal pleading rules, during the initial stages of litigation, a district court should construe all allegations in a complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997).
B. Background
In his Complaint, Anthony details a lengthy and abusive personal history with an individual known as Kelly Renee Harper. Although not explicitly identified as such, Harper appears to be a former girlfriend of Anthony's who shared a residence with him for most of 2018 and 2019. ECF No. 1-1. Anthony alleges that Harper physically and verbally abused him on a regular basis and accuses her of filing several false police reports against him. Id. at pp. 7-11.
His allegations against the remaining Defendants appear to stem from criminal contempt proceedings that occurred in early 2020 in the Erie County Court of Common Pleas. Id. at pp. 12-19. Judge Marshall J. Piccinini presided over each of the proceedings. Id. at 15. Although Anthony has not supplied any meaningful context for his allegations, he primarily appears to object to the government's introduction of one or more pieces of his unopened mail as evidence in the proceedings. As alleged in the Complaint:
- On April 15, 2020, Assistant District Attorney (ADA) Michael Burns opened a piece of mail addressed to Anthony during a criminal contempt proceeding and read the contends inside, causing embarrassment and humiliation
- Judge Piccinini displayed bias and prejudice towards Anthony during court proceedings, improperly allowed Anthony's mail to be introduced as evidence, and relied on ambiguous or unpersuasive evidence to hold Anthony in criminal contempt
- ADA Justin Smith allowed Harper to open a piece of Anthony's mail during a contempt hearing on February 12, 2020ECF No. 1-1 at pp. 12-19. Anthony maintains that Defendants' conduct violated an exhaustive list of federal and state statutory and constitutional provisions. Id. at p. 6.
- ADA Grant Miller violated Anthony's constitutional rights in an unspecified manner
- The Commonwealth of Pennsylvania violated various laws and constitutional provisions by allowing Anthony's mail to be illegally opened in court and by introducing defective, unsigned affidavits as evidence
- The City of Erie failed to adequately train ADAs Burns, Smith and Miller
- Anthony's defense attorney, Michael Harmon, provided ineffective assistance throughout the aforementioned proceedings
C. Analysis
In the instant case, Anthony's claims should be dismissed pursuant to § 1915(e) because the allegations seek monetary relief from non-state actors or "defendant[s] who [are] immune from such relief." 28 U.S.C. § 1915(e)(2). Each will be discussed below.
1. Harper and Harmon
As an initial matter, all claims against Anthony's ex-girlfriend, Harper, and his defense attorney, Harmon, must be dismissed because neither Defendant is a state actor. To establish a claim under 28 U.S.C. §1983, it is axiomatic that a plaintiff must allege the deprivation of a federal right by a person acting under the color of state or territorial law. Williams v. Dark, 844 F.Supp. 210, 213 (E.D. Pa. 1993), aff'd, 19 F.3d 645 (3d Cir. 1994) (citing Gomez v. Toledo, 446 U.S. 635, 640 (1980)). "[P]urely private acts which are not furthered by any actual or purported state authority are not acts under color of state law." Barna v. City of Perth Amboy, 42 F.3d 809, 816 (3d Cir. 1994).
Anthony does not proffer any facts to suggest that Harper or Harmon acted under color of state law. Harper's participation as a witness in criminal contempt proceedings does not alter her status as a private citizen for purposes of § 1983 liability. See Humphrey v. Pa. Court of Common Pleas of Phila., 462 F.Supp.2d 532, 536 (E.D. Pa. 2020) (participation in state domestic court proceedings child did not render plaintiff's former partner a state actor). Similarly, an attorney acting on behalf of his client is not a state actor for the purposes of a §1983 claim. Polk County v. Dobson, 454 U.S. 312, 325 (1981). See also Coudriet v. Vardaro, 2012 WL 5990344, at *4 (W.D. Pa. Oct. 12, 2012) ("Private attorneys, including public defenders, acting on behalf of their clients are not state actors, and therefore, cannot be held liable under §1983."); Valerio-Mendez v. Yeager, 2013 WL 790245, at *1 (M.D. Pa. Mar. 4, 2013) ("Attorneys performing their traditional functions will not be considered state actors solely on the basis of their position as officers of the court."). Accordingly, Anthony's § 1983 claims against Harper and Harmon must be dismissed.
2. ADAs Burns, Smith, and Miller
Anthony's claims against Burns, Smith and Miller are barred by the immunity afforded to prosecutors from liability related to their official acts. Imbler v. Pachtman, 424 U.S. 409, 417-20 (1976). "More than a mere defense to liability, prosecutorial immunity embodies the right not to stand trial." Odd v. Malone, 538 F.3d 202, 207 (3d Cir. 2008) (internal quotations and citations omitted). Under this doctrine, a prosecutor is absolutely immune from liability for money damages under § 1983 for acts "within the scope of his duties in initiating and pursuing a criminal prosecution." Imbler, 424 U.S. at 410. "Ultimately, whether a prosecutor is entitled to absolute immunity depends on whether she establishes that she was functioning as the state's 'advocate' while engaging in the alleged conduct that gives rise to the constitutional violation." Yarris v. Cnty. of Del., 465 F.3d 129, 136 (3d Cir. 2006) (citing Buckley v. Fitzsimmons, 509 U.S. 259, 274 (1993)).
Applying these principles to the instant case, the Court concludes that the actions taken by Burns, Smith and Miller are protected by the doctrine of absolute prosecutorial immunity. Anthony's only specific factual allegation regarding Burns and Smith is that they each violated his constitutional rights by introducing his mail as evidence without his permission and soliciting unfavorable testimony from Harper during criminal contempt hearings. Courts have consistently held that such acts fall within the scope of a prosecutor's duties while pursuing a criminal prosecution. See Fogle v. Sokol, 957 F.3d 148, 160 (3d Cir. 2020) ("[P]rosecutors are immune from claims arising from their conduct in beginning a prosecution, including soliciting false testimony from witnesses in grand jury proceedings and probable cause hearings, presenting a state's case at trial, and appearing before a judge to present evidence.") (internal quotations and quoting sources omitted); Simonton v. Ryland-Tanner, 836 Fed. Appx. 81, 84 (3d Cir. 2020) ("The conduct of a [hearing] and presentation of evidence are undeniably activities 'intimately associated with the judicial phase of the criminal process,' and therefore a prosecutor enjoys absolute immunity from suit based on those activities."). The Court reaches the same conclusion here.
The Complaint does not contain any factual allegations at all concerning Miller.
In contrast, "absolute immunity does not apply when a prosecutor gives advice to police during a criminal investigation, when the prosecutor makes statements to the press, or when a prosecutor acts as a complaining witness in support of a warrant application[.]" Van de Kamp v. Goldstein, 555 U.S. 335, 343 (2009) (internal citations omitted). No such allegations appear in Anthony's pleading.
3. Judge Piccinini
Anthony's claims against Judge Piccinini fare no better. "It is a well-settled principle of law that judges are generally immune from a suit for money damages." Figueroa v. Blackburn, 208 F.3d 435, 440 (3rd Cir. 2000) (internal quotations omitted). Such immunity can only be overcome if the judge's actions are "nonjudicial in nature, or where such actions, while judicial in nature, are taken in the complete absence of all jurisdiction." Van Tassel v. Lawrence County Domestic Relations Section, 659 F.Supp.2d 672, 695 (W.D. Pa. 2009) (internal quotation omitted). Anthony's allegations concern actions taken by Judge Piccinini while presiding over a criminal contempt action in the Erie County Court of Common Pleas, and each of the alleged actions - such as conducting the hearing, ruling on the admission of evidence, and finding Anthony in contempt - is a fundamental judicial act that falls squarely within the jurisdiction of a Pennsylvania common pleas judge. See, e.g., 42 Pa. Cons. Stat. § 931(a) ("the courts of common pleas shall have unlimited original jurisdiction of all actions and proceedings, including all actions and proceedings heretofore cognizable by law or usage in the courts of common pleas"); Figueroa v. Blackburn, 208 F.3d 435, 443 (3d Cir. 2000) (explaining that the act of ordering a person to prison is a "paradigm judicial act"); Muhammad v. Cappellini, 2013 WL 1249029, at *3 (M.D. Pa. Mar. 27, 2013) (judicial acts include issuing orders, making rulings, and conducting hearings). Accordingly, Anthony's claims against Judge Piccinini must be dismissed.
4. The Commonwealth of Pennsylvania
Anthony also asserts claims against the Commonwealth of Pennsylvania. It is axiomatic, however, that "the Eleventh Amendment proscribes actions in the federal courts against states, their agencies, and state officials acting within their official capacities." See, e.g., O'Donnell v. Pennsylvania Dept. of Corrections, 790 F.Supp.2d 289, 305 (M.D. Pa. 2011) (citing Seminole Tribe v. Florida, 517 U.S. 44, 54 (1996)). This principle bars actions against a state in federal court unless one of the following exceptions applies: (1) the state's immunity has been abrogated by Congress; (2) the state has waived sovereign immunity; or (3) a state official is being sued in his official capacity for prospective relief to end an ongoing violation of federal law. MCI Telecomm Corp. v. Bell-Atlantic-Pennsylvania, 271 F.3d 491, 503 (3d Cir. 2001); Ex parte Young, 209 U.S. 123 (1908).
None of these exceptions apply here. "Pennsylvania has not waived its immunity from suit in federal court." Toth v. California Univ. of Pennsylvania, 844 F.Supp.2d 611, 648 (W.D. Pa. 2012) (citing 42 Pa.C.S.A. § 8521(b)). Nor did Congress intend by the general language of § 1983 to override the traditional sovereign immunity afforded to the states. Quern v. Jordan, 440 U.S. 332, 342-45 (1979); see also Toth, 844 F.Supp.2d at 648. Finally, Anthony does not appear to be seeking prospective relief against an individual state official to end an ongoing violation of federal law. Walker v. Beard, 244 Fed. Appx. 439, 440 (3d Cir. 2007) (holding that the Eleventh Amendment prevents an award of prospective injunctive relief against the state); Waterfront Commission of New York Harbor v. Governor of New Jersey, 961 F.3d 234, 238 (3d Cir. 2020) (noting that the Ex parte Young exception permits federal suits "against state officials" to end an "ongoing violation of federal law," but bars such suits where "the state is the real, substantial party in interest") (emphasis in original). The Commonwealth is entitled to dismissal.
5. The City of Erie
Finally, Anthony alleges, in a single, conclusory sentence, that the City of Erie "failed to adequately train District Attorney's Office [Public Officials] to not violate citizen's rights and victim's rights." ECF No. 1-1 at p. 19. Although it is unclear, this claim seems to be based on Anthony's belief that ADAs Burns and Smith engaged in "mail fraud" when they introduced a letter addressed to him into evidence during his criminal contempt proceedings. Id. at p. 22 (seeking, as relief, monetary damages from the City of Erie for "having employees in the county committing mail fraud"). Anthony seeks damages pursuant to Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658 (1978).
A local government's "culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to train." Connick v. Thompson, 563 U.S. 51, 61 (2011). In order to prevail, the plaintiff must demonstrate that the city's alleged failure to train "reflect[ed] a deliberate or conscious choice." Estate of Roman v. City of Newark, 914 F.3d 789, 798 (3d Cir. 2019). See also Forrest v. Parry, 930 F.3d 93, 106 (3d Cir. 2019) (explaining that a Monell claim that is "predicated on a failure or inadequacy has the separate, but equally demanding requirement of demonstrating a failure or inadequacy amounting to deliberate indifference on the part of the municipality"). "Ordinarily," this requires a plaintiff to identify a "pattern of similar constitutional violations by untrained employees" that "puts municipal decisionmakers on notice that a new program is necessary." Johnson v. City of Phila., 975 F.3d 394, 403 (3d Cir. 2020) (internal quotations and quoting sources omitted). See also Connick v. Thompson, 563 U.S. 51, 62 (2011) ("A pattern of similar constitutional violations by untrained employees is 'ordinarily necessary' to demonstrate deliberate indifference for purposes of failure to train.") (quoting Bd. of County Comm'rs v. Brown, 520 U.S. 397, 409 (1997). In other words, the plaintiff must show that "policymakers were aware of similar unlawful conduct in the past, but failed to take precautions against future violations." Bielevicz v. Dubinon, 915 F.2d 845, 851 (3d Cir. 1990).
Anthony's conclusory averment falls well short of this "stringent" standard. See Brown, 520 U.S. at 404-05 (noting that deliberate indifference "is a stringent standard of fault"). Rather than attempting to plead deliberate indifference, Anthony appears to rely entirely on "the discrete conduct of the Defendant [ADAs], in and of itself, [as] indicative of an absence of training." Wright v. Whitehall Township, 2021 WL 100091, at *16 (E.D. Pa. Jan. 12, 2021). The "flaw in [this] argument," however, is that a plaintiff "cannot, based upon the alleged conduct of the individual Defendants alone, impute to the municipality either (a) the existence of an affirmative policy or custom to act consistent with that conduct, or (b) the absence of training to not act consistent with that conduct." Id. (emphasis in original). Rather, Anthony must link the alleged violations to a municipal decision-maker, typically by pleading the existence of a pattern of similar violations on the part of the City of Erie's employees. See Bielevicz v. Dubinon, 915 F.2d 845, 851 (3d Cir. 1990) (holding that a plaintiff must show that the "policymakers were aware of similar unlawful conduct in the past, but failed to take precautions against future violations."). He has made no attempt to do so.
Finally, the Court notes that the allegations against Burns and Smith which form the basis for his failure to train claim against the City of Erie are patently frivolous. Anthony's only specific averment is that Burns and Smith used his mail as evidence in a criminal proceeding. Despite Anthony's insistence that this amounts to "mail fraud," the described conduct does not violate the United States Constitution or any federal statute. In the absence of "an underlying violation by the individual state actors, Monell liability cannot stand." Townsend v. City of Chester, 2020 WL 4347368, at * 13 (E.D. Pa. July 29, 2020) (citing Grazier v. City of Phila, 328 F.3d 120, 124 (3d Cir. 2003)).
III. Conclusion
For the foregoing reasons, it is recommended that all of Anthony's claims be dismissed as legally frivolous in accordance with 28 U.S.C. § 1915(e)(2). Moreover, because Anthony's claims seek monetary relief against defendants who are entitled to immunity and are premised on plainly frivolous allegations, any attempt at amendment would be futile. See, e.g., Bressi v. Gembic, 2018 WL 3596859, at *7 (M.D. Pa. July 2, 2018) (denying leave to amend where claims "clearly and universally lack merit and are legally frivolous"). The Clerk should be directed to terminate this action, with prejudice.
IV. Notice
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, the parties must seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the Objections shall have fourteen (14) days from the date of service of the Objections to respond thereto. See Fed.R.Civ.P. 72(b)(2). Extensions of time will not be granted. Failure to file timely objections may constitute a waiver of appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).
/s/_________
RICHARD A. LANZILLO
United States Magistrate Judge Dated: April 8, 2021