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BIEROS v. NICOLA

December 9, 1993

ROGER BIEROS, Plaintiff,
v.
POLICE CHIEF NICOLA, et al., Defendants.



The opinion of the court was delivered by: J. CURTIS JOYNER

 Joyner, J.

 This action involves a pro se complaint brought by plaintiff, Roger Bieros, an inmate, alleging violations of his civil rights by defendants pursuant to 42 U.S.C. §§ 1983, 1985 and 1986, as well as violations of the Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997d. Defendants consist of the Chief of the Bridgeport Police Department, six police officers, four attorneys in the Montgomery County Public Defender's Office, the Chief Probation Officer for Montgomery County and a probation officer in charge of pre-sentence reporting. *fn1" Plaintiff's allegations stem from the events surrounding his arrest to subsequent conviction on assault charges, for which he is now incarcerated at the state correctional institution in Graterford, Pennsylvania.

 I. Motion to dismiss

 Defendants Hamel and Samodelov move to dismiss the complaint against them on the basis that the complaint fails to state a claim for which relief can be granted. Defendants, both probation officers for the Court of Common Pleas of Montgomery County, argue that the plaintiff fails to allege a course of action against them in that they are not named in any of the three counts included in the complaint, whereas the complaint specifically states a prayer for relief against other defendants in each of the three counts. Defendants further argue that even if a liberal reading of the complaint is afforded the plaintiff, section 1983 is not applicable because of the absolute immunity granted to them. They also argue that section 1985 is inapplicable because plaintiff has not set out any facts showing that a conspiracy occurred, that plaintiff has failed to bring his claim under section 1986 within the one year time frame designated in the statute, and that plaintiff's claim under section 1997d also fails because there are no facts showing that plaintiff ever reported any prohibited conduct as required by the statute. For the reasons stated more fully below, we will grant defendants' motion to dismiss.

 A. Standard

 A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure is the appropriate method in which to challenge the legal sufficiency of a claim. See United States v. Marisol, Inc., 725 F. Supp. 833 (M.D. Pa. 1989). In ruling upon a 12(b)(6) motion, the court primarily considers the allegations in the complaint, although matters of public record, orders, items appearing in the record of the case and exhibits attached to the complaint may also be taken into account. Chester County Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3rd Cir. 1990). In so reviewing the pleadings and any materials of record, the court must accept as true all of the matters pleaded and all reasonable inferences that can be drawn therefrom, construing them in the light most favorable to the non-moving party. Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3rd Cir. 1990); Hough/Lowe Assoc., Inc. v. CLX Realty Co., 760 F. Supp. 1141, 1142 (E.D. Pa. 1991). A complaint is properly dismissed if it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 101-102, 2 L. Ed. 2d 80 (1957); Ransom v. Marrazzo, 848 F.2d 398, 401 (3rd Cir. 1988). However, a court must construe pro se complaints liberally, and such complaints are held to less stringent standards than those drafted by attorneys. Blassingale v. Administration at Suburban Gen. Hosp., 1993 U.S. Dist. LEXIS 15597, No. CIV. A. 93-2601, 1993 WL 451491, at 1 (E.D. Pa. Nov. 3, 1993) (citations omitted); Orrs v. Comings, 1993 U.S. Dist. LEXIS 14615, No. CIV. A. 92-6442, 1993 WL 418361 at 1 (E.D. Pa. Oct. 13, 1993) (citations omitted).

 It is true that plaintiff has not included defendants in any of the three counts seeking relief from the other defendants in the complaint. In fact, plaintiff's only mention of defendants, other than stating their occupations and state of residency, is that they "knowingly used false information to compile the pre-sentence report that was submitted to the court prior to plaintiff's sentencing." Complaint, para. 32. Thus, the issue before us is whether we can construe the complaint as stating a claim against defendants for the above violations in light of this allegation.

 B. Section 1983

 Defendants first argue that the complaint fails to state a claim against them under section 1983 because of the absolute immunity afforded to probation officers from civil suits for acts occurring while they are carrying out their official duties. However, this argument fails for two reasons. First, it is not clear that probation officers are entitled to absolute immunity. Rather, they are entitled to absolute immunity only if their acts which are the subject of the lawsuit occurred when they were engaged in adjudicatory duties; otherwise, if their acts occurred when they were engaged in executive or administrative duties, then they are only entitled to a qualified, good-faith immunity. Wilson v. Rackmill, 878 F.2d 772, 775 (3rd Cir. 1989); Harper v. Jeffries, 808 F.2d 281, 284 (3rd Cir. 1986) (citing Thompson v. Burke, 556 F.2d 231, 236-38 (3rd Cir. 1977)). A qualified immunity only protects defendants if it can be shown that they did not violate any clearly established constitutional or statutory rights of which a reasonable person would have known. Harper, 808 F.2d at 284.

 In this case, defendants' actions apparently consisted of gathering information in order to prepare the pre-sentence report. It appears that the defendants were engaged in an executive or administrative capacity, rather than in an adjudicative capacity, thus entitling them only to qualified immunity. See Wilson, 878 F.2d at 776 (parole officers who investigated allegations of parole violations, typed up a warrant application for plaintiff's arrest and assisted in initiating a criminal investigation only performed executive duties); Harper, 808 F.2d at 284 (probation officer who charged appellant with parole violations and presented evidence to parole board of such wrongdoing, in addition to his general duties, performed executive duties).

 Second, "since good faith is a matter of defense, the determination of that issue as to each defendant must also await proceedings beyond a Rule 12(b)(6) motion." Safeguard Mutual Ins. Co. v. Miller, 472 F.2d 732, 734 (3rd Cir. 1972). Moreover, even if defendants were entitled to absolute immunity here, in order to succeed on the merits of the motion to dismiss, the existence of absolute immunity must be clearly indicated from the face of the complaint. Wilson, 878 F.2d at 776. No such defense is indicated by plaintiff's allegations in this case.

 Notwithstanding defendants' lack of absolute immunity, plaintiff still has not alleged sufficient facts to state a claim for violations of section 1983 by defendants. *fn2" In order to state a claim under section 1983, plaintiff must show that defendants "participated in, or had knowledge of and acquiesced in the alleged unlawful conduct." Orrs, 1993 U.S. Dist. LEXIS 14615, 1993 WL 418361, at 1 (citations omitted). Further, "plaintiff must set forth facts showing that each named defendant was personally involved in the alleged deprivation of his civil rights." Id. The complaint must also contain an allegation of a direct causal link between the alleged constitutional deprivations and the official conduct by defendants causing the deprivations. Prochaska v. Fediaczko, 473 F. Supp. 704, 708 (W.D. Pa. 1979).

 From a thorough reading of the complaint, there is no indication that the alleged acts of defendants in filing a false pre-sentence report caused any constitutional deprivation. Although plaintiff alleges various constitutional deprivations in the three counts of the complaint, there are no facts specifying which deprivation, if any, defendants caused. In his response to the motion to dismiss, plaintiff appears to state that defendants have violated his Sixth Amendment right to confrontation. However, even though plaintiff is not held to the stringent pleading standards that an attorney is, he still must state sufficient facts in order for the court to ascertain there is an adequate basis for the relief he is seeking. Since plaintiff has not satisfied the requirement of causation in Prochaska, he therefore fails to state a claim for violations of section 1983 against defendants Hamel and Samodelov.

 C. Section 1985

 Defendants next argue that the complaint fails to state a claim against them for violations of section 1985(3) because there are no factual allegations that these defendants conspired to violate plaintiff's rights. *fn3" In order to state a ...


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