Opinion
Civil Action No. 19 - 1330
06-17-2020
HASAN SHAREEF, Plaintiff, v. BRIAN PALKO, Officer, WILLIAM FULLERTON, Judge, TIM MCCUNE, Judge, THOMAS DOERR, Judge, TERRY SCHULTZ, District Attorney, MARK LOPE, District Attorney, CHUCK M. NEDZ, Lawyer, CINGOLANI, Lawyer, ANDREW STIFFLER, Lawyer, Defendants.
District Judge J. Nicholas Ranjan
REPORT AND RECOMMENDATION
I. RECOMMENDATION
For the following reasons, it is respectfully recommended that Plaintiff's Complaint (ECF No. 5) be dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) & (iii) and 28 U.S.C. § 1915A(b)(1) & (2).
II. REPORT
Plaintiff Hasan Shareef ("Plaintiff") is a state prisoner currently in the custody of the Pennsylvania Department of Corrections and confined at SCI-Forest. He initiated this action by filing a Motion for Leave to Proceed in forma pauperis, which was granted on October 18, 2019. (ECF Nos. 1 & 2.) His Complaint, filed pursuant to 42 U.S.C. § 1983, was docketed that same day. (ECF No. 5.) On December 10, 2019, Plaintiff filed a notice of voluntary dismissal. (ECF No. 9.) As a result, this case was closed by Order dated December 11, 2019. (ECF No. 10.) On May 14, 2020, Plaintiff moved to reopen this case. (EF No. 11.) Said motion was granted and the case was reopened on May 15, 2020. (ECF No. 12.) Upon review, the undersigned now recommends that this case be dismissed with prejudice pursuant to the screening provisions of the Prison Litigation Reform Act.
A. The Prison Litigation Reform Act
The Prison Litigation Reform Act ("PLRA"), Pub.L. No. 104-134, §§ 801-810, 110 Stat. 1321-66 to 1321-77 (April 26, 1996), requires a district court to review a complaint in a civil action in which a prisoner is proceeding in forma pauperis (28 U.S.C. § 1915(e)(2)) or seeks redress against a governmental employee or entity (28 U.S.C. § 1915A). The Court is required to identify cognizable claims and to sua sponte dismiss any claim that is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). This action is subject to sua sponte screening for dismissal under both 28 U.S.C. §§ 1915(e)(2) and 1915A because Plaintiff is a prisoner proceeding in forma pauperis and seeking redress from governmental officers or employees.
B. Standard of Review
The legal standard for dismissing a complaint for failure to state a claim pursuant to § 1915(e)(2)(B)(ii) or § 1915A(b)(1) is identical to the legal standard used when ruling on a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). See Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999). However, before dismissing a complaint or claims for failure to state a claim upon which relief may be granted pursuant to the screening provisions of 28 U.S.C. §§ 1915 and 1915A, a court must grant the plaintiff leave to amend his complaint, unless amendment would be inequitable or futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 113-14 (3d Cir. 2002).
In reviewing a pro se plaintiff's complaint, the court must accept all factual allegations in the complaint as true and take them in the light most favorable to the pro se plaintiff. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007); Phillips v. County of Allegheny, 515 F.3d 224, 234-35 (3d Cir. 2008). A complaint must be dismissed if it does not allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 570 (2007). "Factual allegations must be enough to raise a right to relief above a speculative level." Id. at 555. The court need not accept inferences drawn by the plaintiff if they are unsupported by the facts as set forth in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the court accept legal conclusions set forth as factual allegations. Bell Atlantic Corp., 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Additionally, a civil rights claim "must contain specific allegations of fact which indicate a deprivation of constitutional rights; allegations which are nothing more than broad, simple and conclusory statements are insufficient to state a claim under § 1983." Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 887 (2d Cir. 1987).
Finally, a court must employ less stringent standards when considering pro se pleadings than when judging the work product of an attorney. Haines v. Kerner, 404 U.S. 519, 520 (1972). When presented with a pro se complaint, the court should construe the complaint liberally and draw fair inferences from what is not alleged as well as from what is alleged. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003). In a section 1983 action, the court must "apply the applicable law, irrespective of whether the pro se litigant has mentioned it by name." Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (quoting Holley v. Dep't of Veteran Affairs, 165 F.3d 244, 247-48 (3d Cir. 1999)). See also Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) ("Since this is a § 1983 action, the [pro se] plaintiffs are entitled to relief if their complaint sufficiently alleges deprivation of any right secured by the Constitution.") (citing Holder v. City of Allentown, 987 F.2d 188, 194 (3d Cir. 1993)). Notwithstanding this liberality, pro se litigants are not relieved of their obligation to allege sufficient facts to support a cognizable legal claim. See, e.g., Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002); Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996).
C. Discussion
The allegations contained in Plaintiff's Complaint are difficult to comprehend. As best the undersigned can tell, he complains that he was not brought in front of the same magistrate judge who issued the warrant for his arrest, that the magistrate judge was not neutral and detached, that he was subject to a malicious prosecution by the Butler County District Attorney's Office, that he was subject to a false arrest and/or false imprisonment, and that he complained about all of this to his defense attorneys who failed to take any action. (ECF No. 5, pp.2-3.) The arrest of which he complains appears to have occurred on May 27, 2016. (ECF No. 5, p.2.) As relief, he seeks compensatory and punitive damages and asks that this Court dismiss his criminal case. (ECF No. 5, pp.3, 8-9.)
In addition to stating that the "date of event" at issue was May 27, 2016, Plaintiff's docket sheet for his criminal case confirms that he was indeed arrested on May 27, 2016. See Commonwealth v. Shareef, MJ-50305-CR-338-2016. The docket sheet, which is a public record that is accessible online, reveals that he was charged with four counts of Intentional Possession of a Controlled Substance by a Person Not Registered; three counts of Manufacture, Delivery, or Possession with Intent to Manufacture or Deliver; and one count each of Possession of a Firearm Prohibited, Use/Possession of Drug Paraphernalia, and Dealing in Proceeds of Unlawful Activity with the Intent to Promote. All charges were held over and sent to the Butler County Court of Common Pleas to proceed at docket number CP-10-CR-1714-2016. The docket sheet for that case reveals that Plaintiff pled guilty to one count of Manufacture, Delivery, or Possession with Intent to Manufacture or Deliver and he was found guilty of one count of Possession of a Firearm Prohibited. On December 20, 2018, he was sentenced to a term of incarceration of four-and-a-half to nine years.
1. Defendants Fullerton , McCune and Doerr
Plaintiff names as Defendants Judges Fullerton, McCune and Doerr. The Court should take judicial notice that Judge Fullerton is a judge of Magisterial District Court 32-1-21, which is an entity of the Unified Judicial System of Pennsylvania. See 42 Pa. C.S.A. § 301(9). The Court should also take judicial notice that Judges McCune and Doerr are judges of the Butler County Court of Common Pleas in the Fiftieth Judicial District of Pennsylvania, which is also an entity of the United Judicial System of Pennsylvania. See 42 Pa. C.S.A. § 301(4).
To the extent Plaintiff has sued Judges Fullerton, McCune and Doerr in their official capacity, the Eleventh Amendment bars suit against them. In this regard, "a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office. As such, it is no different from a suit against the State itself." Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989) (internal citation omitted). Here, a claim against Judges Fullerton, McCune and Doerr in their official capacity is really a claim against the courts over which they preside; which are entities of the Commonwealth of Pennsylvania. See Callahan v. City of Philadelphia, 207 F.3d 668, 672 (3d Cir. 2000) ("All courts and agencies of the unified judicial system . . . are part of 'Commonwealth government' and thus are state rather than local agencies."); see also Benn v. First Judicial Dist. of Pa., 426 F.3d 233, 241 (3d Cir. 2005) (holding that the First Judicial District was a state entity and thus entitled to Eleventh Amendment immunity). As such, claims against them in their official capacity are no different than claims against the Commonwealth of Pennsylvania.
The Eleventh Amendment, however, bars civil rights suits against a State in federal court by private parties where the State has not consented to such action. Laskaris v. Thornburgh, 661 F.2d 23, 25 (3d Cir. 1981) (citing Alabama v. Pugh, 438 U.S. 781 (1978)). In fact, it is subject to only three exceptions: (1) congressional abrogation, (2) state waiver, and (3) suits against individual state officers for prospective relief to end an ongoing violation of federal law under Ex parte Young, 209 U.S. 123, 159-60 (1908). MCI Telecommunication Corp. v. Bell Atlantic Pennsylvania, 271 F.3d 491, 503 (3d Cir. 2001).
No exceptions to Eleventh Amendment immunity are applicable here. Congress has not expressly abrogated Pennsylvania's Eleventh Amendment immunity from civil rights suits for damages. See, e.g., Will, 491 U.S. at 66 ("Section 1983 provides a federal forum to remedy many deprivations of civil liberties, but it does not provide a federal forum for litigants who seek a remedy against a State for alleged deprivations of civil liberties."); Quern v. Jordan, 440 U.S. 332, 341 (1979); Boykin v. Bloomsburg Univ. of Pa., 893 F. Supp. 378 (M.D. Pa. 1995) (holding that States' immunity has not been abrogated for actions brought under §§ 1981, 1983, 1985, and 1986), aff'd, 91 F.3d 122 (3d Cir. 1996). Additionally, by statute, the Commonwealth of Pennsylvania has specifically withheld its consent to be sued. See 42 Pa. C.S.A. § 8521(b); 1 Pa. C.S.A. § 2310; see also Laskaris, 661 F.2d at 25. Finally, the Ex parte Young exception does not apply because Plaintiff has not alleged an ongoing violation of federal law and he does not seek purely prospective relief. As such, Judges Fullerton, McCune and Doer are entitled to Eleventh Amendment immunity to the extent they are sued in their official capacities.
Judges Fullerton, McCune and Doerr are also entitled to absolute immunity from civil liability pursuant to the doctrine of judicial immunity, which "is founded upon the premise that a judge, in performing his or her judicial duties, should be free to act upon his or her convictions without threat of suit for damages." Figueroa v. Blackburn, 208 F.3d 435, 440 (3d Cir. 2000) (citing Bradley v. Fisher, 80 U.S. 335, 347 (1872)). Indeed, a judge's immunity from civil liability is overcome in only two situations: (1) for actions not taken in the judge's judicial capacity, and (2) though judicial in nature, for actions taken in the complete absence of all jurisdiction. Id. (citing Mireles v. Waco, 502 U.S. 9, 11-12 (1991)). Plaintiff's allegations against Judges Fullerton, McCune and Doerr do not give rise to either situation. Accordingly, they are also entitled to absolute judicial immunity.
2. Defendants Schultz and Lope
Plaintiff names as Defendants Schultz and Lope, who appear to be two Assistant District Attorneys of Butler County. He conclusively alleges that these prosecutors maliciously prosecuted him. Prosecutors, however, are shielded from liability by absolute immunity for actions which are "intimately associated with the judicial phase of the criminal process." Imbler v. Pachtman, 424 U.S. 409, 430 (1976). In this regard, the Supreme Court has found that prosecutors are immune from claims arising from their conduct "in initiating a prosecution and in presenting the State's case," id. at 431, as well as appearing before a judge to present evidence, Burns v. Reed, 500 U.S. 478, 491-92 (1991). "By contrast, a prosecutor's 'investigatory functions that do not relate to an advocate's preparation for the initiation of a prosecution or for judicial proceedings are not entitled to absolute immunity.'" Fogle v. Sokol, 957 F.3d 148, 160 (3d Cir. 2020) (quoting Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993)).
Plaintiff mistakenly identifies these Defendants as District Attorneys of Butler County.
Based on the allegations in the Complaint, it appears that Plaintiff attempts to hold Defendants Schultz and Lope liable solely for their actions as an advocate for the Commonwealth of Pennsylvania in initiation and pursuit of criminal prosecution. These actions are clearly judicial in nature, and, as a result, they are immune from liability under the doctrine of absolute immunity.
3. Defendants Nedz , Cingolani and Stiffler
Plaintiff also names as Defendants Attorneys Nedz, Cingolani and Stiffler. All three of these attorneys appear to have represented Plaintiff at one point in time throughout the pendency of his criminal case and he appears to claim that they did not do anything when informed about the alleged violations in his Complaint. As such, Plaintiff's claims against his attorneys appear to be based entirely on their alleged ineffective assistance.
The docket sheet for Plaintiff's criminal case confirmed that all three of these attorneys appeared on behalf of Plaintiff. See Commonwealth v. Shareef, CP-10-CR-1714-2016 (Butler Cty. Ct. of Comm. Pleas).
While it is unknown whether these Defendants were public defenders, court appointed or privately retained, criminal defense attorneys do not "act under color of state law" while performing their traditional functions as counsel to a defendant in a criminal proceeding. Clark v. Vernon, 228 F. App'x 128, 131 (3d Cir. Apr. 5, 2007) (citing Polk County v. Dodson, 454 U.S. 312, 325 (1981) and Angelico v. Lehigh Valley Hosp., Inc., 184 F.3d 268, 277 (3d Cir. 1999)). Because there is no liability under section 1983 for those not acting under color of state law, see Groman v. Township of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995), Plaintiff cannot pass the threshold for bringing a section 1983 action against the attorneys who represented him in his criminal proceedings. As such, the claims against them should be dismissed.
4. Defendant Palko
Lastly, Plaintiff has sued Officer Brian Palko and appears to allege that his arrest by Officer Palko on May 17, 2016 was unconstitutional. This claim, however, is time-barred.
In determining the length of the limitations period, the court first looks to state law, and, under Pennsylvania law, the applicable limitations period for civil rights actions under 42 U.S.C. § 1983 is two years. See 42 Pa. C.S.A. § 5524. Next, the court looks to federal law to determine the time at which a § 1983 claim accrues, and, in Wallace v. Kato, 549 U.S. 384, 397 (2007), the United States Supreme Court held that "the statute of limitations upon a § 1983 claim seeking damages for a false arrest in violation of the Fourth Amendment, where the arrest is followed by criminal proceedings, begins to run at the time the claimant becomes detained pursuant to legal process."
Here, Plaintiff states, and the docket sheet confirms, that he was arrested and arraigned on May 27, 2016. See Commonwealth v. Shareef, MJ-50305-CR-338-2016. Since this occurred more than two years before he initiated the instant case, which at the earliest was on or about October 10, 2019, his claim should be dismissed as time-barred.
It is noted that Plaintiff brought the same claim against Defendant Palko in Civil Action 18-1494, which was dismissed as time-barred by Order dated March 25, 2020. --------
D. Amendment of Complaint
The court must allow amendment by the plaintiff in a civil rights case brought under § 1983 before dismissing for failure to state a claim, irrespective of whether it is requested, unless doing so would be "inequitable or futile." Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007); see also Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004) (asserting that where a complaint is vulnerable to dismissal pursuant to 12(b)(6), the district court must offer the opportunity to amend unless it would be inequitable or futile). The undersigned is cognizant of these holdings but finds that allowing for amendment by Plaintiff would be futile.
III. CONCLUSION
For the following reasons, it is respectfully recommended that Plaintiff's Complaint (ECF No. 5) be dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) & (iii) and 28 U.S.C. § 1915A(b)(1) & (2).
In accordance with the applicable provisions of the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B)&(C), and Rule 72.D.2 of the Local Rules of Court, the parties shall have fourteen (14) days from the date of the service of this report and recommendation to file written objections thereto. Any party opposing such objections shall have fourteen (14) days from the date on which the objections are served to file its response. A party's failure to file timely objections will constitute a waiver of that party's appellate rights.
Dated: June 17, 2020.
/s/_________
Lisa Pupo Lenihan
United States Magistrate Judge Cc: Hasan Shareef
NU-0779
SCI Forest
P.O. Box 307
Marienville, PA 16239