Opinion
CIVIL ACTION NO. 3:18-CV-02248
02-26-2019
WESLEY M. POLLARD, SR., Plaintiff, v. COUNTY OF LUZERNE, et al., Defendants.
(CAPUTO, J.)
() REPORT AND RECOMMENDATION I. BACKGROUND
Wesley M. Pollard, Sr. ("Pollard") initiated the instant complaint pursuant to 42 U.S.C. § 1983 ("1983") on November 23, 2018. (Doc. 1). Pollard named Stefanie Salavants ("Salavants"), Jenny Roberts ("Roberts"), and Gregory Skibitsky, Jr. ("Skibitsky") as defendants, and seeks compensatory and punitive damages against each, along with damages against Luzerne County. (Doc. 1 at 25). Pollard alleges all three defendants are employed by Luzerne County as District Attorneys. (Doc. 1 at 25). ("District Attorneys", collectively). At all times relevant to the complaint, and currently, plaintiff is incarcerated at SCI Benner in Bellefonte, Pennsylvania. (Doc. 1 at 2; 19).
Pollard alerts the Court that his "case lies at the intersection of the most fertile sources of federal-court prisoner litigation... (those sources being) the Civil Rights Act of 1871... 42 U.S.C. 1983, and the federal habeas corpus statute, 28 U.S.C. 2254." (Doc. 1 at 3). Pollard then dedicates nearly three pages to statements of law, before beginning his complaint. (Doc. 1 at 3-5). Pollard alleges that he was convicted under a statute was held to be in violation of the Pennsylvania Constitution, which gives rise to a malicious prosecution claim, and possibly a habeas corpus claim. (Doc. 1 at 5). Pollard also seeks to proceed in forma pauperis. (Doc. 2); (Doc. 10).
Pollard's troubles with the Pennsylvania legal system began in 1990, when he was sentenced to a prison term of at least six and one-half years following his conviction for involuntary deviate sexual intercourse. (Doc. 1 at 8). Pollard was released and placed on probation. (Doc. 1 at 8-10). While on probation, Pollard was charged with "failure to provide accurate information" and sentenced to a term of ten to twenty years. (Doc. 1 at 10). The failure to provide information charge stemmed from Pollard's non-compliance with Megan's Law requirements, a law which Pollard claims has been held unconstitutional, and since replaced by a different law. (Doc. 1 at 10; 12). Pollard alleges malicious prosecution claims against the Defendants on the grounds that their confinement of him was based on this purportedly unconstitutional law. (Doc. 1 at 15-16; 18). Pollard seeks $25,000 in punitive and compensatory damages against each individual Defendant, as well as $50,000 in compensatory damages against Luzerne County for each twelve-month period of his wrongful incarceration. (Doc. 1 at 24-25). II. SECTION 1915 STANDARDS
Under 28 U.S.C. § 1915A, the Court is obligated, prior to service of process, to screen a civil complaint in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a); James v. Pa. Dep't of Corr., 230 Fed. Appx. 195, 197 (3d Cir. 2007) (not precedential). The Court must dismiss the complaint if it fails to state a claim upon which relief can be granted. 28 U.S.C. § 1915A(b)(1); Mitchell v. Dodrill, 696 F. Supp. 2d 454, 471 (M.D. Pa. 2010). The Court has a similar obligation with respect to actions brought in forma pauperis. See 28 U.S.C. § 1915(e)(2). In performing this mandatory screening function, a district court applies the same standard applied to motions to dismiss under Rule 12(b)(6) of the FEDERAL RULES OF CIVIL PROCEDURE. Mitchell, 696 F. Supp. 2d at 471; Banks v. Cnty. of Allegheny, 568 F. Supp. 2d 579, 588 (W.D. Pa. 2008).
Rule 12(b)(6) of the FEDERAL RULES OF CIVIL PROCEDURE authorizes a defendant to move to dismiss for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). The United States Court of Appeals for the Third Circuit has noted the evolving standards governing pleading practice in federal court, stating that:
Standards of pleading have been in the forefront of jurisprudence in recent years. Beginning with the Supreme Court's opinion in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), continuing with our opinion in Phillips [v. County of Allegheny, 515 F.3d 224 (3d Cir. 2008)] and culminating recently with the Supreme Court's decision in Ashcroft v. Iqbal, 556 U.S. 662 (2009), pleading standards have seemingly shifted from simple notice pleading to a more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss.
Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).
In considering whether a complaint fails to state a claim upon which relief may be granted, a court must accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom are to be construed in the light most favorable to the plaintiff. Jordan v. Fox, Rothschild, O'Brien &Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). A court "need not credit a complaint's 'bald assertions' or 'legal conclusions' when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Additionally, a court need not assume that a plaintiff can prove facts that the plaintiff has not alleged. Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). In order to state a valid cause of action a plaintiff must provide some factual grounds for relief which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). When ruling on a motion to dismiss, a trial court must assess whether a complaint states facts upon which relief can be granted, and should "begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). "[T]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678.
In addition to these pleading rules, a civil complaint must comply with the requirements of Rule 8(a) of the FEDERAL RULES OF CIVIL PROCEDURE, which defines what a complaint should contain:
(a) A pleading that states a claim for relief must contain (1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief in the alternative or different types of relief.Thus, a pro se plaintiff's well-pleaded complaint must recite factual allegations which are sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation, set forth in a "short and plain" statement of a cause of action. Indeed, Fed. R. Civ. P. 8(a) requires a "showing that 'the pleader is entitled to relief, in order to give the defendant fair notice of what the...claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93-94 (2007); Phillips, 515 F.3d at 233 (citing Twombly, 550 U.S. at 545).
With the aforementioned standards in mind, a document filed pro se is "to be liberally construed." Estelle v. Gamble, 429 U.S. 97, 106 (1976). A pro se complaint, "however inartfully pleaded," must be held to "less stringent standards than formal pleadings drafted by lawyers" 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. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). In deciding a Rule 12(b)(6) motion, the court may also consider the facts alleged on the face of the complaint, as well as "documents incorporated into the complaint by reference, and matters of which a court may take judicial notice." Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). Further, the Third Circuit has instructed that if a complaint is vulnerable to dismissal for failure to state a claim, the district court must permit a curative amendment, unless an amendment would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). III. DISCUSSION
A. JURISDICTION & VENUE
"An action will only lie under [1983] when a state official, acting under color of law, violates a constitutionally protected right." Truhe v. Rupell, 641 F. Supp. 57, 59 (M.D. Pa. 1985) (citing Screws v. U.S., 325 U.S. 91, 158 (1945)). Malicious prosecution is actionable under § 1983. See Losch v. Borough of Parkersburg, 736 F. 2d 903, 906 (3d Cir. 1984). "Malicious prosecution implicates due process because it results in a denial of due process." Bussard v. Neil, 616 F. Supp. 854, 856 (M.D. Pa. 1985) (citing DiMaggio v. O'Brien, 497 F.Supp. 870, 878 (E.D.Pa.1980)). Thus, subject matter jurisdiction is proper under 28 U.S.C.A. § 1331. Because Pollard alleges that the events giving rise to his claim occurred in Bellefonte, Pennsylvania, which is located within the Middle District of Pennsylvania, venue is proper here. 28 U.S.C. § 1391(b); Chester v. Beard, Civil Action No. 07-4742, 2008 WL 2310946, *7 (E.D. Pa. June 2, 2008).
B. MALICIOUS PROSECUTION CLAIM
To bring a § 1983 claim for malicious prosecution, a plaintiff must show: "(1) the defendant initiated a criminal proceeding; (2) which ended in plaintiff's favor; (3) which was initiated without probable cause; and (4) the defendant acted maliciously or for a purpose other than bringing the defendant to justice." Hamidian v. Occulto, 854 F. Supp. 350, 353 (M.D. Pa. 1994) (internal citations omitted) (emphasis in original). Concerning the plaintiff in a malicious prosecution action, the "prior criminal case (against him) must have been disposed of in a way that indicates the innocence of the accused in order to satisfy the favorable termination element." Kossler v. Crisanti, 564 F. 3d 181, 187 (3d Cir. 2009) (citing Donahue v. Gavin, 280 F.3d 371, 383 (3d Cir.2002)). A plaintiff's conviction on the underlying charges initiated by the defendant against the plaintiff "defeat any federal civil rights claims based upon... malicious prosecution... and compels dismissal of the claim as a matter of law." McCool v. Snyder County, No. 4:CV-11-1038, 2014 WL 2930648, *8 (M.D. Pa. June 27, 2014). Here, Pollard's claim fails on the face of the complaint; he is currently serving a prison term after being convicted for failure to provide the information required under Megan's Law. (Doc. 1, at 27).
C. PROSPECTIVE HABEAS CORPUS PETITION
Pollard states that he "has also filed 2254 federal habeas petition (challenging the unconstitution [sic] conviction)." (Doc. 1 at 2) (emphasis added). "(A) person in state custody may file an application for a writ of habeas corpus challenging the fact or length of his confinement under section 2254." Ruffin v. Mooney, Civil Action No. 3:16-1987, 2017 WL 3390361, *2 (M.D. Pa. January 31, 2017) (citing 28 U.S.C. § 2254) ("2254"). Prisoners cannot use § 1983 to challenge the fact or duration of their confinement or to seek immediate or speedier release. Preiser v. Rodriguez, 411 U.S. 475, 497-98 (1973). "In the case of damages, habeas corpus is not an appropriate or available federal remedy." Id. at 494. IV. LEAVE TO AMEND
The Court recognizes that pro se plaintiffs often should be afforded an opportunity to amend a complaint before the complaint is dismissed with prejudice, see Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 253 (3d Cir. 2007), unless granting further leave to amend would be futile or result in undue delay. Alston v. Parker, 363 F.3d 229, 235-36 (3d Cir. 2004). Here, granting leave to amend would be futile at this time, because Pollard's malicious prosecution claim cannot proceed since Pollard remains, by his own admission, convicted on the underlying charges. However, the dismissal of these claims, without leave to amend, should be without prejudice. See Curry v. Yachera, 835 F.3d 373, 379 (3d Cir. 2016) (the order of dismissal should be without prejudice so that Plaintiff may refile his complaint should he succeed in challenging the legality of his continued confinement through appropriate state or federal remedies). Further, to the extent Plaintiff is seeking habeas relief pursuant to § 2254, his complaint should be dismissed without prejudice. See also Ruffin, 2017 WL 3390361, *2 (dismissing prisoner-plaintiff's case without prejudice where it was unclear whether he was seeking relief under 1983 or 2254). V. RECOMMENDATION
Based on the foregoing, it is recommended that:
1. Plaintiff's complaint (Doc. 1) be DISMISSED WITHOUT PREJUDICE for failure to state a claim upon which relief can be granted pursuant to 28 U.S.C. § 1915(A) and 28 U.S.C. § 1915(e)(2)(B)(ii);
2. Plaintiff's Motions to proceed In Forma Pauperis (Doc. 2); (Doc. 10) be GRANTED; and
3. The Clerk of Court be directed to close this case.
BY THE COURT:
Dated: February 26, 2019
/s/ _________
KAROLINE MEHALCHICK
United States Magistrate Judge NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated February 26, 2019. Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Dated: February 26, 2019
/s/ _________
KAROLINE MEHALCHICK
United States Magistrate Judge