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BIEROS v. NICOLA

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


August 5, 1994

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

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

MEMORANDUM & ORDER

 Joyner, J.

 Presently before the Court is County Defendants' *fn1" Motion to Dismiss Plaintiff's Second Amended Complaint.

 I. HISTORY OF THE CASE

 Plaintiff Bieros, an inmate at the state correctional institution in Graterford, Pennsylvania, filed a pro se complaint alleging civil rights violations arising from his arrest and subsequent conviction for assault. By orders dated December 9, 1993 and April 28, 1994 this Court dismissed with prejudice Plaintiff's claim of violation of 42 U.S.C. § 1986 and dismissed without prejudice granting leave to amend Plaintiff's claims of violations of 42 U.S.C. §§ 1983, 1985 and 1997 *fn2" against County Defendants. County Defendants now seek dismissal of Plaintiff's Second Amended Complaint. By this order, all claims against County Defendants are dismissed.

 II. STANDARD

 A Federal Rule of Civil Procedure 12(b)(6) motion to dismiss is the appropriate method by which to challenge the legal sufficiency of a claim. See e.g. United States v. Marisol, Inc., 725 F. Supp. 833 (M.D. Pa. 1989). 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 (3d Cir. 1990). 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 (3d 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 (3d Cir. 1988). Courts 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).

 III. DISCUSSION

 A. 42 U.S.C § 1983

 Two essential elements must be alleged to state a section 1983 *fn3" claim. First, the conduct complained of must be committed by someone acting under color of state law; and second, as a result of this conduct, plaintiff must be deprived of rights, privileges or immunities secured by the Constitution or the laws of the United States. Cohen v. City of Philadelphia, 736 F.2d 81, 83 (3d Cir. 1984), cert. denied, 469 U.S. 1019, 105 S. Ct. 434, 83 L. Ed. 2d 360 (1984).

 Plaintiff has not sufficiently pleaded a section 1983 claim against Hamel and Samodelov. Probation officers appear to be state actors, cf. Pittock v. McCray, 1992 U.S. Dist. LEXIS 16350, No. CIV. A. 92-5924, 1992 WL 310257 (E.D. Pa. Oct. 22, 1992), and due process guarantees convicted criminals the right not to be sentenced on materially false information. United States v. McDowell, 888 F.2d 285, 290 (3d Cir. 1989) (citations omitted). See also United States v. Gomez, 831 F.2d 453, 455 (3d Cir. 1987) (requiring the sentencing court to either resolve the dispute or not rely on the disputed information). Plaintiff alleges that Hamel and Samodelov deprived him of due process by knowingly using false information to compile a presentencing report which Plaintiff by court order could not review and correct. However, Plaintiff fails to allege any specific false information that was presented to and relied on by the sentencing court and that Plaintiff or defense counsel had no opportunity to rebut. Plaintiff cannot support a claim that he was deprived of a fair sentencing hearing with merely conclusory allegations.

 Nor has Plaintiff sufficiently pleaded a section 1983 claim against Gerber, Glammer, Armstrong and Dickerson. Public defenders who conspire with state officials to deprive a person of constitutional rights are state actors for purposes of section 1983. Dennis v. Sparks, 449 U.S. 24, 27-28, 101 S. Ct. 183, 186, 66 L. Ed. 2d 185 (1980); Flowers v. Marino, 1993 U.S. Dist. LEXIS 12038, No. CIV. A. 93-1212, 1993 WL 331825, at * 3 (E.D. Pa. Sept. 2, 1993). Plaintiffs must allege conspiracy with particularity, Loftus v. Southeastern Pennsylvania Transportation Authority, 843 F. Supp. 981, 1994 U.S. Dist. LEXIS 1455, No. CIV. A. 93-2471, 1994 WL 45153 (E.D. Pa. Feb. 9, 1994) (citing Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 122 L. Ed. 2d 517, 113 S. Ct. 1160, 1163 (1993) and Rose v. Bartle, 871 F.2d 331, 366 (3d Cir. 1989)), even though a heightened pleading standard does not apply to civil rights actions against individual defendants. See e.g. Alexander v. Hargrove, 1994 U.S. Dist. LEXIS 8884, No. CIV. A. 93-5510, 1994 WL 327025, at * 5 (E.D. Pa. June 28, 1994); Comp v. Warren, 1994 U.S. Dist. LEXIS 1081, No. CIV. A. 93-5436, 1994 WL 30303, at * 3 (E.D. Pa. Feb. 3, 1994); McCallen v. Holland-Hull, 1994 U.S. Dist. LEXIS 1364, No. CIV. A. 93-3415, 1994 WL 34251, at * 1 (E.D. Pa. Jan. 31, 1994); Boone v. Falls Township, No. CIV. A. 92-3909, 1993 WL 228909, * 2 (E.D. Pa. June 17, 1993). Plaintiff alleges that public defenders Gerber, Glammer, Armstrong and Dickerson conferred with each other regarding Plaintiff's defense and failed to offer or argue for certain exculpatory evidence. However, as Plaintiff fails to allege that these public defenders conspired with any state actors, the section 1983 claim against these defendants must be dismissed.

 B. 42 U.S.C. § 1985(3)

 Plaintiff's section 1985(3) claim against County Defendants must be dismissed for failure to allege facts in support of a claim. Five elements must be alleged to state a section 1985(3) *fn4" claim: (1) a conspiracy by the defendants, (2) designed to deprive plaintiff of the equal protection of the laws, (3) the commission of an overt act in furtherance of that conspiracy, (4) a resultant injury to person or property or a deprivation of any right or privilege of citizens, and (5) defendant's actions were motivated by a racial or otherwise class-based invidiously discriminatory animus. Carter F--3999 v. Cuyler, 415 F. Supp. 852, 857 (E.D. Pa. 1976) (citing Griffin v. Breckenridge, 403 U.S. 88, 102-3, 91 S. Ct. 1790, 29 L. Ed. 2d 338 (1971)); Whetzler v. Krause, 411 F. Supp. 523, 528 (E.D. Pa. 1976), aff'd 549 F.2d 797 (3d Cir. 1977). The last element above is dispositive of Plaintiff's claim as none of Plaintiff's allegations suggest that County Defendants were motivated by a racial or otherwise class-based invidiously discriminatory animus. Further, Plaintiff now acknowledges that he never based the conspiratorial actions of defendants Gerber, Glammer, Armstrong and Dickerson on a racial or otherwise class-based invidiously discriminatory animus, and purposely never advanced and stipulated to the dismissal of claims of discrimination against defendants Hamel and Samodelov. As such, Plaintiff's section 1985(3) claim fails.

 B. CONCLUSION

 As Plaintiff has been granted two opportunities to amend his complaint and still failed to sufficiently state any claims against County Defendants under sections 1983 and 1985(3), this court must grant County Defendants' motion to dismiss Plaintiff's Second Amended Complaint with prejudice.

 ORDER

 AND NOW, this 5th day of August, 1994, upon consideration of County Defendants' Motion to Dismiss Plaintiff's Second Amended Complaint and Plaintiff's Response thereto, it is hereby ORDERED that County Defendants' Motion is GRANTED and all claims against Defendants Hamel, Samodelov, Gerber, Glammer, Armstrong and Dickerson are DISMISSED WITH PREJUDICE.

 BY THE COURT:

 J. CURTIS JOYNER, J.


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