Opinion
Civil Action No. 4:CV-05-2450.
December 14, 2005
REPORT AND RECOMMENDATION
I. Background.
On November 25, 2005, Plaintiff, Sydney L. Pope, an inmate at Schuylkill County Prison ("SCP"), filed a Complaint pursuant to 42 U.S.C. § 1983 and § 1985. (Doc. 1). Plaintiff is proceeding pro se. Plaintiff also filed a Motion to proceed in forma pauperis. (Doc. 2).
Plaintiff is not complaining about prison conditions during his incarceration at SCP. Rather, Plaintiff claims that he was maliciously prosecuted and illegally convicted in Schuylkill County, located in the Middle District of Pennsylvania, as a result of a conspiracy to violate his constitutional rights between the district magistrate judge and the Frackville Police Department ("FPD") personnel.
The Plaintiff's action is against the following five (5) Defendants: Bernadette Nattas, District Magistrate Judge for Frackville; unnamed Frackville Police Chief; Police Officer Hands of FPD; Police Officer Little of FPD; and Frackville Borough Council. (Doc. 1, pp. 1, 3-4). All Defendants are sued in the individual and official capacities. (Doc. 1, p. 4, ¶ 9.).
The Clerk of Court erroneously indicated on the docket sheet that Defendant Nattas was FPD Chief and failed to list the FPD Chief as a Defendant. We shall direct the Clerk of Court to correct these errors.
With respect to two named Defendants, the District Magistrate Judge and Frackville Borough Council, as will be discussed, the Judge is entitled to absolute immunity and the Borough Council is not a person for purposes of § 1983. Further, no personal involvement of Defendant Officer Little is alleged.
As relief, the Plaintiff requests monetary damages, both compensatory and punitive, as well as injunctive and declaratory relief. (Doc. 1, p. 7).
II. Allegations of Complaint.
Plaintiff alleges that on August 23, 2005, he told Defendant Hands that, due to his color and race, the FPD Chief had no right to insist that he make undercover drug buys for the benefit of the FPD. Plaintiff states that the Chief "had no right to use threat of willfully subjecting the Plaintiff to do illegal acts for there (sic) benefit." (Doc. 1, p. 2). Plaintiff alleges that, since he refused to help the FPD, the Chief instructed Defendant Hands to file a driving under suspension charge against Plaintiff. Plaintiff indicates that he was charged with the stated offense, but states that he was not driving his car; rather, Plaintiff claims that he loaned his car to a friend and Defendant Hands only saw Plaintiff's car and assumed Plaintiff was driving it. ( Id.). Plaintiff had a preliminary hearing on the stated charge which was presided by Defendant District Magistrate Judge Nattas. Plaintiff states that Defendant Nattas did not accept his evidence in the nature of his friend's testimony that he [Plaintiff's friend] was driving Plaintiff's car. Plaintiff also states that "Magistrate Nattas completely ignored positive proof due to her conspiracy and prejudicial conduct against the Plaintiff." ( Id.). Plaintiff further states that at his preliminary hearing, the Magistrate also mentioned an unrelated subject regarding the custody of Plaintiff's daughter and that the Magistrate "openly informed the Plaintiff to give up his parental right." ( Id.).
In his Facts Section of his Complaint, Plaintiff states that on August 23, 2005, he met with the Defendant Chief and Defendant Hands regarding a protection from abuse order, and that "the Chief of Police with malicious and direct threats insisted that the Plaintiff . . . make drug buys for him in his area and also in the Shenandoah Borough." Plaintiff alleges that the Chief told him that "his cooperation can be beneficial to his benefit." ( Id., p. 4).
Plaintiff also alleges that he was charged with harassment by the FPD and State Police, and that five days before his hearing, the County Work Release Coordinator told him that Magistrate Nattas agreed to let Plaintiff participate in the work release program if he [Plaintiff] agreed to set up a payment plan for the harassment charge, which was not even adjudicated yet by the Magistrate. Plaintiff states that since he was offered work release prior to being convicted, the FPD and Magistrate Nattas essentially found him guilty five days before his hearing was scheduled in violation of due process. ( Id., p. 5).
We fail to see how an offer of a plea agreement made before a hearing on a criminal charge violates due process. In fact, we are well aware that such agreements are commonplace in criminal cases.
Plaintiff states that at his preliminary hearing on the driving while suspended charge, he was convicted on the basis of his color and race and that the "black Assistant District Attorney" who prosecuted his case "has already discriminated against the Plaintiff in other cases pending in court." ( Id.).
Plaintiff concludes by alleging that since December 2003 to present, he asked the entire FPD for assistance in enforcing his custody order granting him partial custody of his daughter, but that they refused to help him "due to the outright intimidation, oppressing and the right to equal protection of the law." ( Id., pp. 5-6).
Plaintiff claims that he has been discriminated against and that his due process rights have been violated. ( Id., p. 6).
III. Discussion.
The individual Defendants have not yet been served. However, we find that the Complaint against all of them is subject to dismissal. The Prison Litigation Reform Act of 1995, (the " PLRA"), obligates the Court to engage in a screening process when a prisoner wishes to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Specifically, § 1915(e)(2), which was created by § 805(a)(5) of the Act, provides:
Pub.L. No. 104-134, 110 Stat. 1321 (April 26, 1996).
As stated, the Plaintiff completed an application to proceed in forma pauperis. (Doc. 2).
(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that (A) the allegation of poverty is untrue; or (B) the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.
We have reviewed the allegations lodged against all of the Defendants and have determined that the Complaint is subject to dismissal as to all Defendants pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and (iii).
In an action brought pursuant to 42 U.S.C. § 1983, the Plaintiff must prove the following two essential elements in order to state a claim: (1) that the conduct complained of was committed by a person acting under color of state law; and (2) that the conduct complained of deprived the Plaintiff of rights, privileges or immunities secured by the law or the Constitution of the United States. Parratt v. Taylor, 451 U.S. 527 (1981); Kost v. Kozakiewicz, 1 F. 3d 176, 184 (3d Cir. 1993). Further, Section 1983 is not a source of substantive rights. Rather, it is a means to redress violations of federal law by state actors. Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002); See also Holocheck v. Luzerne County Head Start, Inc., 385 F. Supp. 2d 491, 498-499 (M.D. Pa.).
It is well established that personal liability under section 1983 cannot be imposed upon a state official based on a theory of respondeat superior. See, e.g., Rizzo v. Goode, 423 U.S. 362 (1976); Hampton v. Holmesburg Prison Officials, 1546 F.2d 1077, 1082 (3d Cir. 1976); Parratt, supra. It is also well settled in the Third Circuit that the defendant's personal involvement in alleged constitutional deprivations is a requirement in a § 1983 case and that a complaint must allege such personal involvement. Id. Each named defendant must be shown, through the complaint's allegations, to have been personally involved in the events or occurrences upon which Plaintiff's claims are based. Id. As the Court stated in Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1998):
A defendant in a civil rights action must have personal involvement in the alleged wrongs. . . . [P]ersonal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence. Allegations of participation or actual knowledge and acquiescence, however, must be made with appropriate particularity. (Citations omitted).
Courts have also held that an allegation seeking to impose liability on a defendant based on supervisory status, without more, will not subject the official to section 1983 liability. See Rode, 845 F.2d at 1208.
1. Defendant Magistrate Nattas
In this case, the Plaintiff names Frackville District Magistrate Judge Nattas as a Defendant. Plaintiff's claims against this Defendant arise out the Judge's handling of Plaintiff's criminal cases, including his driving with a suspended license charge and harassment charge, and the preliminary hearings over which she presided. We find that the claims against Magistrate Nattas are subject to dismissal, since she is entitled to absolute judicial immunity.
Plaintiff's claims against the Magistrate may also be barred by the Rooker-Feldman doctrine. See Focus v. Allegheny CCP, 75 F.3d 834, 840 (3d Cir. 1996) (If requested relief in federal suit requires a determination that the state court decision is wrong or the state court's ruling is void, then the federal court lacks subject matter jurisdiction). Here, Plaintiff claims in part that the Magistrate abused her authority during Plaintiff's prosecution by ignoring his evidence and that she was prejudiced against Plaintiff. Plaintiff also claims that since, before his hearing, the Work Release Coordinator told him that the Magistrate would allow him to participate in work release if he set up a payment plan on his harassment charge, the Defendant Magistrate violated his due process rights.
The Plaintiff alleges that Magistrate Nattas, in his criminal cases, deprived him of his due process rights which seemingly resulted in his illegal convictions and that Magistrate Nattas ignored his evidence due to "her conspiracy and prejudicial conduct against the Plaintiff." (Doc. 1, p. 2). Magistrate Nattas, who presided over Plaintiff's criminal cases, is absolutely immune from this action and Plaintiff's claims under § 1983.
It is a well-established principle of law that judges are absolutely immune from suit for damages for conduct performed in the course of their official duties. Stump v. Sparkman, 435 U.S. 349, 359 (1978); Oatess v. Sobolevitch, 914 F.2d 428, 431 (3d Cir. 1990) (recognizing that a court may dismiss an allegation against a judge based on an exercise of judicial power). Consequently, since all of the claims against Magistrate Nattas are based on actions taken in the exercise of her official duties, she is entitled to absolute immunity from monetary damages.
As indicated above, Plaintiff seeks both monetary damages as well as injunctive and declaratory relief.
We read Plaintiff's allegations against Magistrate Nattas as all related to her official duties in presiding over the Plaintiff's criminal cases. As the Court in Garrett v. Nesbitt, 1998 WL 531841 at * 6 (E.D. Pa.), stated, "[i]f the acts complained of are of the kind normally performed by a judge, and if the Plaintiff was dealing with the judge in his judicial capacity, then suit cannot be entertained." (citation omitted). In our case, the Plaintiff's allegations against the presiding Magistrate relate to actions taken in her judicial capacity, such as not accepting Plaintiff's evidence that his friend was driving his car. Defendant Nattas is clearly absolutely immune from Plaintiff's § 1983 claims, and this action should be dismissed as to her. See 28 U.S.C. § 1915(e)(2)(iii).
The Plaintiff also seeks a declaratory judgment that the alleged acts of Defendants violated his constitutional rights and injunctive relief as against Defendants enjoining them from further unlawful actions against him. (Doc. 1, p. 7). With respect to Plaintiff's request for injunctive relief, Plaintiff makes no allegations that any Defendant is continuing to violate any of his rights. The alleged refusal of the FPD to assist him in upholding his custody order for his daughter does not implicate the violation of a constitutional right. Further, Defendant Nattas is not alleged to have participated in the police's refusal to assist Plaintiff. Indeed, Plaintiff states that his custody order for partial custody was signed by two judges and he had an adequate remedy at law to simply file a motion with the court to uphold his custody order. ( Id., p. 5).
In any event, we do not find that any of Plaintiff's allegations against Magistrate Nattas state a constitutional claim. Plaintiff alleges that Magistrate Nattas ignored his evidence in his driving while suspended case, and by allowing Plaintiff to participate in work release on his harassment charge if he agreed to a payment plan, she prejudged him guilty before his hearing. However, Defendant Nattas clearly did not initiate the prosecution against Plaintiff, she did not charge Plaintiff, and she did not play any role in the prosecution of Plaintiff. Further, there is no personal liability alleged against Defendant Nattas that she was in any way responsible for the decision to prosecute Plaintiff or that she played any role in the charging of Plaintiff with the stated crimes in Frackville. Moreover, Plaintiff appears to admit that he was convicted of the charges in Frackville and has been incarcerated at SCP as a result, and thus, his malicious prosecution claim is not cognizable. In a § 1983 action claiming malicious prosecution, Plaintiff must show that underlying criminal charge was favorably terminated in his favor. See Gilles v. Davis, C.A. No. 04-2542 (3d Cir. 10-25-05), slip op. 23, 427 F.3d 197 (3d Cir. 2005).
Plaintiff also fails to state a viable conspiracy claim against Defendant Nattas. As the Court stated in Pardue v. Gray, C.A. No. 04-2784 (3d Cir. 6-2-05), slip op. p. 8 (non-precedential):
[t]o establish the existence of a conspiracy under § 1983 a plaintiff must show that two or more conspirators reached an agreement to deprive her of a constitutional right under color of state law . . .
(citations omitted).
Since we find Plaintiff's allegation insufficient to claim that Defendant Nattas violated any of Plaintiff's constitutional rights, his conspiracy claim cannot be sustained. See Pardue v. Gray, supra, p. 8.
We recognize that a pro se prisoner should be freely granted leave to amend a pleading. However, since Plaintiff fails to state any cognizable claim against Defendant Nattas, and Defendant Nattas is entitled to absolute immunity, we find that any amendment as to this Defendant would be futile in this case. See Fauver v. Shane, 213 F. 3d 113, 116-17 (3d Cir. 2000).
We also find futility based on the following factor. Even if Plaintiff is claiming that his continued incarceration in SCP is the result of his being illegally convicted in Frackville and that he is entitled to release from prison, Plaintiff's claims are more appropriately habeas claims that he can pursue after he exhausts his state court remedies.
We believe that the Third Circuit case of Leamer v. Fauver, 288 F. 3d 532, 542 (3d Cir. 2002), is on point with the present case. In Leamer, the Third Circuit stated:
whenever the challenge ultimately attacks the `core of habeas' — the validity of the continued conviction or the fact or length of the sentence — a challenge, however denominated and regardless of the relief sought, must be brought by way of a habeas corpus petition. Conversely, when the challenge is to a condition of confinement such that a finding in plaintiff's favor would not alter his sentence or undo his conviction, an action under § 1983 is appropriate. (Emphasis added).
Nor does Plaintiff allege that Defendant Nattas violated his due process rights. Plaintiff claims that the Magistrate ignored his evidence that he was not driving his car and that she agreed to a work release sentence if he set up a payment plan. However, the weighing of testimony and evidence by the Magistrate clearly did not violate Plaintiff's due process rights. Nor did Defendant Nattas' alleged agreement to work release violate Plaintiff's rights. Plaintiff indicates that with respect to both charges he had hearings, and thus was given all due process. Further, Plaintiff has adequate remedies with the Pennsylvania state courts to file appeals in his criminal cases regarding his convictions and if they fail, he can file collateral appeals. After he exhausts these state court remedies, he can seek habeas relief in federal court.
Thus, as discussed, Plaintiff's allegations do not state a viable due process claim. Plaintiff also alleges a vague pattern of discrimination with respect to his criminal cases. There is no cognizable equal protection claim stated.
The Equal Protection Clause does not require that all persons be treated alike, but instead, a plaintiff must show that the differential treatment to those similarly situated was unreasonable, or involved a fundamental interest or individual discrimination. Tigner v. Texas, 310 U.S. 141, 147 (1940); Price v. Cohen, 715 F.2d 87, 91 (3d Cir. 1983), cert. denied, 465 U.S. 1032 (1984). It is well-settled that a litigant, in order to establish a viable equal protection claim, must show an intentional or purposeful discrimination. Snowden v. Hughes, 321 U.S. 1, 8 (1944); Wilson v. Schillinger, 761 F.2d 921, 929 (3d Cir. 1985), cert. denied, 475 U.S. 1096 (1986); E T Realty v. Strickland, 830 F.2d 1107, 1113-14 (11th Cir. 1987), cert. denied 485 U.S. 961 (1988). This "state of mind" requirement applies equally to claims involving (1) discrimination on the basis of race, religion, gender, alienage or national origin, (2) the violation of fundamental rights, and (3) classifications based on social or economic factors. See, e.g., Britton v. City of Erie, 933 F. Supp. 1261, 1266 (W.D. Pa. 1995), aff'd, 100 F.3d 946 (3d Cir. 1996); Adams v. McAllister, 798 F. Supp. 242, 245 (M.D. Pa.), aff'd. 972 F.2d 1330 (3d Cir. 1992).
Plaintiff has failed to allege any facts from which it can be concluded that Defendants engaged in intentional or purposeful discrimination or that he was treated differently than similarly situated individuals on the basis of his race, religion, gender, alienage, or national origin.
Additionally, the Plaintiff has not stated any specific acts taken by Defendant Nattas in furtherance of the alleged deprivation of his rights or any discriminatory animus attributable to the stated Defendant. Plaintiff merely states that Defendant Nattas did not give him a fair hearing and that "race and color of Defendants should not enter into cases." (Doc. 1, p. 3, ¶ 4.). Plaintiff also alleges that Defendant Nattas ignored his evidence due to her "conspiracy and prejudicial conduct against the Plaintiff." ( Id., p. 2).
Even though Plaintiff indicates that he is asserting a § 1985 conspiracy claim, as discussed below, he fails to state such a claim.
Thus, the Plaintiff has not alleged any unconstitutional conduct as against Magistrate Nattas, and this Defendant is entitled to absolute judicial immunity. Therefore, we shall recommend that this case be dismissed as against Defendant Magistrate Nattas. 2. Defendant Officer Little
The Plaintiff makes no allegations specifically against Defendant Little. Since no personal involvement of Defendant Little is stated in Plaintiff's pleading, this Defendant should be dismissed. Further, respondeat superior is insufficient to implicate this Defendant. See Sutton v. Rasheed, 323 F.3d 236, 249-50 (3d Cir. 2003). 3. Conspiracy Claim against Defendants under Section 1985(3)
While Plaintiff does not name his public defender as a Defendant in his case, he alleges that at his preliminary hearing on his driving while suspended charge, his public defender did not recuse himself due to a direct conflict of interest. Plaintiff further alleges that his public defender openly stated that Plaintiff was going to jail and that not one of his defenses were "admitted into testimony by the public defender solely based on Plaintiff's color and race." Plaintiff states that this was proven "by making the Plaintiff wait four hours for a black Assistant District Attorney to arrive" who previously discriminated against him. (Doc. 1, p. 5).
Plaintiff seemingly claims that his attorney violated his rights by not proving his innocence. Plaintiff essentiality claims that this defense counsel failed to give him adequate representation to prove his innocence. Plaintiff's claims of ineffective assistance of counsel can be pursued in a collateral appeal of his conviction via a Pennsylvania Post Conviction Relief Act petition. Further, negligence is not a basis for a § 1983 action. It is well-settled that mere negligence is not an actionable § 1983 claim. See Davidsen v. O'Lone, 752 F.2d 817 (3d Cir. 1984); Daniels v. Williams, 474 U.S. 327 (1986).
We find no duty by defense counsel to prove a criminal Defendant's innocence. As stated, to the extent Plaintiff is asserting ineffective assistance of trial counsel claims, he can raise them in a PCRA petition with the state court. Moreover, it is well settled that a public defender does not act under color of state law for purposes of § 1983 when performing traditional functions as counsel for a Defendant in a criminal proceeding. Polk County v. Dodson, 454 U.S. 312, 325 (1981); Black v. Bayer, 672 F. 2d 309, 311 (3d Cir.), cert denied, 459 U.S. 916 (1982). Here, the Plaintiff's claims against his public defender are based on actions he took while serving as Plaintiff's defense counsel at his driving while suspended violation hearing.
The stated public defender is not a state actor, and as such, would not be a proper Defendant in this § 1983 action. See Parratt, supra. We also find that the Plaintiff's allegations against his attorney do not amount to any violation of his constitutional rights. The Plaintiff does not sufficiently allege how his attorney violated any of his rights or even that he was an agent of the state.
Plaintiff, while deemed as raising a conspiracy claim against the stated Defendants, alleges a vague conspiracy claim which took place due to an unspecified agreement to further prejudice against him due to his color and race. We find that Plaintiff's bare conclusory allegations of conspiracy against the stated Defendants are inadequate to allege a conspiracy claim. See Flanagan v. Shively, 783 F. Supp. 922, 928-29 (M.D. Pa. 1992), aff'd. 980 F. 2d 722 (3d Cir. 1992), cert. denied 510 U.S. 829 (1993). "The Plaintiff's allegations [of conspiracy] must be supported by facts bearing out the existence of the conspiracy and indicating its broad objectives and the role each Defendant allegedly played in carrying out those objectives. Bare conclusory allegations of `conspiracy' . . . will not suffice to allege an agreement or make averments of communication, consultation, cooperation, or command from which such an agreement can be inferred." Id. at 928. The Plaintiff does not specify any role or agreement of the stated Defendants in the alleged plan to allow the presiding magistrate to engage in prejudicial conduct against him or to allow the police to maliciously prosecute him due to his failure to agree to make drug buys for them. In fact, the alleged prejudice against Plaintiff by the FPD was because he refused to make drug buys for the police.
The Court, in Garrett v. Nesbitt, 1998 WL 531841 at * 3 (E.D. Pa.), stated,
In order to state a claim for violation of § 1985(3), a plaintiff must allege four elements: (1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States. See United Brotherhood of Carpenters and Joiners of Am. v. Scott, 463 U.S. 825, 828-29, 103 S.Ct. 3352,77 L.Ed. 2d 1049 (1983).
As the Garrett Court also stated,
Although § 1985(3) reaches "purely private" conspiracies, no cause of action exists when the private conspiracy interferes with rights that may only be abridged by state action. See Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 268, 113 S.Ct. 753, 122 L.Ed.2d 34 (1993) (citing Carpenters, 463 U.S. at 833 (1983)). In addition, in order to prove a private conspiracy under § 1985(3), the plaintiff must show that "some racial, or perhaps otherwise class-based, invidiously discriminatory animus [lay] behind the conspirators' action." Id. (quoting Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971).
There is no presumption of discriminatory purpose, and a plaintiff must clearly show intentional discrimination. See DeBotton v. Marple Township, 689 F.Supp. 477, 482 (E.D. Pa. 1988).
The Plaintiff has not sufficiently alleged any discriminatory purpose with respect to his claim against Defendants. Plaintiff only states that the police Defendants (Defendants Chief and Hands) charged him with a crime for his failure to agree to make drug buys for them, and that at his hearing, the Defendant Magistrate ignored his evidence, i.e. his friend's testimony that Plaintiff was not driving his car. (Doc. 1, p. 2). These claims are insufficient to state a discriminatory purpose. Plaintiff has failed to state a § 1985(3) claim against these Defendants, as discussed.
As mentioned, construe Plaintiff's allegations against the Defendants as raising claims under § 1983 and § 1985(3). The Garrett Court considered claims made against the Bucks County Probation Office in which the Plaintiff alleged that there was no evidence to support his probation violation and the Probation Office Defendants conspired to use the court hearing for an unlawful purpose, i.e., to cover-up Plaintiff's inadvertent release from prison. The Garrett Court found that the Plaintiff failed to state a § 1983 claim against the Probation Office Defendants since he did not allege that they violated any of his constitutional or federal rights. Garrett, supra. at * 5.
Similarly to Garrett, in the present case, the Plaintiff has failed to allege that Defendant police officers, by filing criminal charges (charges of which Plaintiff was convicted) for failing to cooperate with police by buying drugs for them, violated his rights. We find that the Defendants violated no constitutional rights of Plaintiff.
In summary, to the extent that the Plaintiff claims that the Police Officer Defendants were part of the conspiracy to charge him for failing to cooperate in drug buys, he has failed to specify any agreement as required. See Flanagan, supra. The Plaintiff has also failed to allege facts sufficient to state a § 1985(3) claim against Defendant Magistrate Nattas, since he has not identified any agreement she allegedly had with the police, and he has not alleged specific conduct (other than the failure to accept his evidence that his friend was driving his car) by this Defendant which was taken in furtherance of the alleged conspiracy. See Garrett, supra. at § 4. Nor has Plaintiff sufficiently alleged any discriminatory purpose regarding his § 1985 (3) claim against Defendants.
Therefore, it will be recommended that Plaintiff's § 1985(3) conspiracy claim against all Defendants be dismissed.
4. Malicious Prosecution Claim against Defendants Hands and FPD Chief
As mentioned, Plaintiff claims that Defendants Chief and Hands illegally and maliciously prosecuted him for driving while suspended because he would not agree to make drug buys for the police. Plaintiff also claims that the police would not assist him in enforcing his custody order. As stated above, we do not find Plaintiff's latter claim against the police Defendants to state a constitutional violation. Nor do we find that Plaintiff has stated a false arrest or malicious prosecution claim against the police Defendants.
While Plaintiff characterizes the police Defendants' request that he make drug buys for them as "illegal acts" (Doc. 1, p. 2), we note that we are cognizant that such drug buys are frequently utilized by police and are not per se illegal.
In Groman v. Township of Manalapan, 47 F.3d 628, 636 (3d Cir. 1995) the Court stated that "an arrest based on probable cause could not become the source of a claim for false imprisonment." See also Russoli v. Salisbury Twp., 126 F.Supp.2d 821, 852 (E.D. Pa. 2000) ("a claim for false imprisonment cannot be based on an arrest based on probable cause"). In Wagner v. Waitlevertch, 2001 Pa.Super. 100, 2001 WL 305843, * 4 (2001), the Court stated that "[t]he central issue in determining liability in a Section 1983 action based on a claim of false arrest is `whether the arresting officers had probable cause to believe the person arrested had committed the offense'." The Padilla Court stated that "probable cause `exists when the facts and circumstances are sufficient to warrant a reasonable person to believe that an offense has been or is being committed by the person to be arrested.' (Citation omitted). The existence of probable cause is based on the facts known by the arresting officer at the time of the arrest. Calamia v. City of New York, 879 F.2d 1025, 1032 (2d Cir. 1989)." Padilla, 143 F. Supp. 2d at 490.
The Padilla Court also noted that:
False arrest and false imprisonment often overlap. See Gagliardi v. Lynn, 446 Pa. 144, 149, 285 A.2d 109 (1971). As explained in 1 Dan Dobbs, The Law of Torts (2001):
False arrest is a term that describes the setting for false imprisonment when it is committed by an officer or by one who claims the power to make an arrest. Although false arrest is not essentially different from false imprisonment, detention by an officer or one acting under color of law may also amount to a civil rights violation.Id. at 489, n. 5.
In the present case, we find that the allegations, as detailed in Plaintiff's pleading do not establish that Defendant Hands violated Plaintiff's rights. Plaintiff states that Defendant Chief instructed Officer Hands to file a driving while suspension charge against him. Plaintiff then states that "due to the fact that the Plaintiff loaned his vehicle to a friend who drove through a seat belt check point and Officer Hands seen the Plaintiff's vehicle and assumed the Plaintiff was driving in which he was not." (Doc. 1, p. 2). Plaintiff does not seem to dispute as to whether Defendant Hands had probable cause to arrest the Plaintiff for driving while suspended. Plaintiff states that Officer Hands saw his [Plaintiff's] vehicle and assumed Plaintiff was driving it. Seemingly based on Officer Hands' eyewitness account of the driving incident, he found probable cause to charge Plaintiff.
We thus conclude, based on the Plaintiff's own allegations, that Officer Hands had probable cause to arrest Plaintiff for driving while suspended as a matter of law. See Pardue v. Gray, C.A No. 04-2784, slip op. p. 5, 6-27-05 (non-precedential). As the Pardue Court stated:
Probable cause is assessed by examining the "totality of the circumstances" and adopting a "common sense" approach. Illinois v. Gates, 462 U.S. 213 (1983). It is well established that probable cause exists where "facts and circumstances [are] sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense." Sharrar v. Felsing, 128 F.3d 810, 818 (3d Cir. 1997).
The Pardue Court further held that:
Even without reference to the commonlaw presumptions, Gray had probable cause to arrest Pardue. "Probable cause to arrest exists when the facts and circumstances within the arresting officer's knowledge are sufficient in themselves to warrant a reasonable person to believe that an offense has been committed by the person to be arrested." Orsatti v. New Jersey State Police, 71 F.3d 480, 482 (3d Cir. 1995).Id., p. 7.
Thus, we shall recommend that Defendant Hands be dismissed. We shall also recommend that Plaintiff's false arrest and malicious prosecution claim against Defendant FPD Chief, since it is contingent upon Defendant Hands' actual arrest of Plaintiff, also be dismissed.
5. Defendant Frackville Borough Council
As noted above, Defendant Frackville Borough Council ("FBC") is not a person for § 1983. Further, no municipal liability is alleged with respect to this Defendant.
FBC, as a Borough Council, is not a person within the meaning of § 1983. See Fischer v. Cahill, 474 F. 2d 991, 992 (3d Cir. 1973); Philogene v. Adams County Prison, Civ. No. 97-0043, slip op. at p. 4 (M.D. Pa. 1-30-97); Sponsler v. Berks County Prison, 1995 WL 92370, at *1 (E.D. Pa.); Mitchell v. Chester County Farms Prison, 426 F. Supp. 271, 274 (E.D. Pa. 1976). Thus, Defendant FBC is clearly subject to dismissal. Further, Plaintiff makes no claims against FBC.
There is no municipal liability alleged against FBC. Plaintiff makes no allegations against FBC. Plaintiff does not directly state what FBC did to violate his civil rights. In any event, the Complaint's allegations that the FPD Defendants made threats to charge him with driving while suspended if he did not make drug buys for them are insufficient to establish a claim against the Borough Council, since the Plaintiff has failed to show any policies or practices issued by Council which led to the alleged violation of his constitutional rights. When a claim against a municipality or governmental entity such as FBC is based on Section 1983, the entity can only be liable when the alleged constitutional violation implements or executes a policy, regulation or decision officially adopted by the governing body or informally adopted by custom. Monell v. New York City Dept. of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018 (1978). Further, as discussed, Plaintiff's rights were not violated by Officer Hands or Magistrate Nattas. Therefore, the FBC should be dismissed as a Defendant in this case.
Therefore, it will be recommended that the matter be dismissed as to all Defendants pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and (iii).
Again, even though a pro se prisoner should be freely granted leave to amend a pleading, since the Plaintiff fails to state any cognizable claim against any of the stated Defendants, and Magistrate Nattas is entitled to absolute immunity, we find that any amendment as to these Defendants would be futile in this case. See Fauver 213 F. 3d at 116-17.
We also find futility based on the following factor. Even if Plaintiff was convicted of criminal offenses in Frackville, his claims against the Defendants may be barred by Heck v. Humphrey, 512 U.S. 477 (1994), which precludes a § 1983 claim challenging a Plaintiff's conviction. As the Third Circuit recently stated, "[u]nder Heck, a § 1983 action that impugns the validity of the Plaintiff's underlying conviction cannot be maintained unless the conviction has been reversed on direct appeal or impaired by collateral proceedings." Gilles v. Davis, C.A. No. 04-2542, (3d Cir. 10-25-05), slip op. 21. Further, Heck required that a Plaintiff asserting a malicious prosecution claim under § 1983 show that the previous criminal action terminated in his favor. Id., p. 23. Here, as mentioned, Plaintiff seemingly concedes that his criminal proceedings in Frackville did not terminate in his favor.
IV. Recommendation.
Based on the foregoing, it is respectfully recommended that the Complaint be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and (iii) as against all of the Defendants.