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April 28, 1998

COUNTY OF BUCKS, PENNSYLVANIA COURT OF COMMON PLEAS ADULT PROBATION & PAROLE DEPT., COUNTY OF BUCKS, PENNSYLVANIA SHERIFF'S OFFICE, VENTURA VASQUEZ, individually & in his official capacity as an Adult Probation Officer, JANE DOE, individually & in her official capacity as an employee of the Bucks County Sheriff's Office, JOHN DOES 1 through 10, individually & in their official capacities as Bucks County Sheriff's Officers

The opinion of the court was delivered by: SHAPIRO


 Norma L. Shapiro, J.

 April 28, 1998

 Plaintiff Brian C. Duffy ("Duffy"), alleging due process violations under the Fifth and Fourteenth Amendments, filed this action under 42 U.S.C. § 1983 against defendants the Bucks County Adult Probation and Parole Department ("Probation Dept."), probation officer Ventura Vasquez ("Vasquez"), the Bucks County Sheriff's Office ("Sheriff's Office"), Jane Doe, an unidentified employee of the Sheriff's Office and ten John Does, unidentified officers in the Sheriff's Office. The parties agree that Jane Doe and the John Does were actually employees of the Bucks County Correctional Facility (the "Facility"), not the Sheriff's Office.

 Defense counsel has provided the real names of Jane Doe and the John Does: Jane Doe is Charmaine Henderson ("Henderson"), an employee of the Facility; the John Does are Officer Mark Nagorski ("Off. Nagorski"), a correctional officer who booked Duffy upon admission to the Facility; Officers Terry Jackson ("Off. Jackson"), Gerrity ("Off. Gerrity"), Christopher Greene ("Off. Greene") and David Hagerity III ("Off. Hagerity"), correctional officers on duty September 30, 1995; Officers David Godin ("Off. Godin"), John Keim ("Off. Keim"), Eugene Ledger ("Off. Ledger") and Ronald Feliciano ("Off. Feliciano"), correctional officers on duty October 1, 1995; and Officers Joseph Cavanaugh ("Off. Cavanaugh") and Colin Burns ("Off. Burns"), correctional officers on duty October 2, 1995 (collectively the "correctional officers"). *fn1"

 Defendants have moved to dismiss Duffy's Amended Complaint. For the reasons stated below, defendants' motion will be granted in part and denied in part.


 Duffy resides in Trevose, a municipality in Bucks County Pennsylvania. At some time in the past five years, Duffy pled guilty to a criminal misdemeanor and was sentenced by the Bucks County Court of Common Pleas to forty-eight hours confinement in the Facility and ordered to pay court costs and fines. Duffy's sentence did not include a term of probation. (Compl. P 10). *fn2"

 In February, 1995, Vasquez visited Duffy at home and accused Duffy of "violating his probation" by failing to report to Vasquez. (Id. P 11). Duffy informed Vasquez that he had not been placed on probation. The documents concerning the probation violation referred to a Brian Duffy with a different birth date and Social Security number than that of plaintiff Duffy. Duffy showed Vasquez his driver's license with a birth date different than that of the Duffy Vasquez was seeking. (Id. P 12).

 Vasquez did not report the confusion between plaintiff Duffy and the other Brian Duffy to the Probation Dept. or correct the Probation Dept.'s computer records to reflect that plaintiff Duffy was not violating any term of probation. (Id. PP 13, 14). Duffy alleges the Probation Dept.'s "policies or customs regarding the maintenance of its computer system ... did not adequately provide for the correction or elimination of false or inaccurate information." (Id. P 14).

 Despite the information provided by plaintiff Duffy, Vasquez filed a Praecipe for a Probation/Parole Violation Hearing on June 6, 1995. (Id. P 15). Vasquez caused a Bucks County Court of Common Pleas judge to issue a bench warrant for plaintiff Duffy's arrest in July, 1995. (Id. P 17).

 On September 29, 1995, Duffy tendered a timely child support payment to the Philadelphia County Court of Common Pleas. A law enforcement officer, running a routine background check, learned of the Bucks County Court of Common Pleas bench warrant. The Philadelphia law enforcement officer contacted the Bucks County Sheriff's Office to inform them of Duffy's presence; an employee of the Bucks County Sheriff's Office asked the Philadelphia officer to hold Duffy for arrest. (Id. P 18).

 Duffy was arrested by Bucks County Sheriff's officers and transported to the Facility at approximately 2:00 p.m. on Friday, September 29, 1995. (Id. PP 19, 30). Duffy was fingerprinted; he provided the Sheriff's Office with identification bearing his birth date and Social Security number. Henderson, a Correctional Facility "counselor," informed Duffy his record did not reveal any reason for his incarceration, but he would be imprisoned anyhow. (Id. P 20). Henderson refused to notify superiors that Duffy should not be detained. (Id. P 21).

 Duffy was detained at the Facility through Monday, October 2, 1995. (Id. PP 19, 30). Duffy alleges "defendants'" policies or custom did not require a court hearing between Friday afternoon and Monday, or, alternatively, the correctional officers improperly detained Duffy until Monday because they were deliberately indifferent and "did not want to delay their own weekend activities by preparing for and participating in a hearing on Friday afternoon." ( Id. P 30).

 During Duffy's four days of confinement, he was subjected to strip searches "at least once on every day" by the correctional officers on duty. The strip searches were "for no apparent reason and unprovoked by any action taken by Plaintiff Duffy which would have justified repeated strip searches." (Id. P 22). The correctional officers conducted Duffy's strip searches either in violation of official policies and customs or, alternatively, pursuant to official policies or customs which permit "excessive strip searches for no apparent reason and justified by no countervailing public policy or necessity." (Id. P 24).

 On October 2, 1995, Duffy attended a hearing in the Bucks County Court of Common Pleas. The judge found "no basis for arresting and imprisoning Plaintiff Duffy," rescinded the bench warrant and ordered Duffy's immediate release from incarceration. (Id. P 25). However, Facility personnel returned Duffy to the Facility, incarcerated him for several hours and subjected him to an additional strip search. (Id. P 26).

 Duffy filed a pro se Complaint on October 1, 1997. Process was served on January 23, 1998. Duffy obtained counsel and filed an Amended Complaint on February 25, 1998. The Amended Complaint alleges a due process *fn3" violation under the Fifth and Fourteenth Amendments because defendants: 1) falsely imprisoned plaintiff; 2) deprived plaintiff of a timely court hearing after his arrest; and 3) subjected plaintiff to numerous strip searches for no apparent reason.

 Defendants move to dismiss the Amended Complaint because: 1) there is no respondeat superior liability under § 1983; 2) Duffy has not alleged any custom or policy of the Probation Dept. or Sheriff's Office that caused his injuries; 3) Vasquez is entitled to qualified immunity; and 4) Duffy failed to commence this action within the statute of limitations.


 I. Standard of Review

 In considering a motion to dismiss under Rule 12(b)(6), the court "must take all the well pleaded allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the pleadings, the plaintiff may be entitled to relief." Colburn v. Upper Darby Township, 838 F.2d 663, 665-66 (3d Cir. 1988) (citations omitted), cert. denied, 489 U.S. 1065, 103 L. Ed. 2d 808, 109 S. Ct. 1338 (1989); see Rocks v. City of Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989). The court must decide whether "relief could be granted on any set of facts which could be proved." Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988). A motion to dismiss may be granted only if the court finds the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. See Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957).

 II. False Imprisonment Under § 1983

 To maintain an action under § 1983, a plaintiff must allege defendants deprived him of a federal right while acting under color of state law. See 42 U.S.C. § 1983. *fn4" "Section 1983 focuses on misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." Davidson v. O'Lone, 752 F.2d 817, 826 (3d Cir. 1984), aff'd, 474 U.S. 344, 88 L. Ed. 2d 677, 106 S. Ct. 668 (1986). State action exists where a defendant's "official character is such as to lend the weight of the State to his decisions." Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937, 73 L. Ed. 2d 482, 102 S. Ct. 2744 (1982). Here the defendants are a County Sheriff's Office, Probation Dept., its employees and Facility employees. Defendants derive their authority from state law and are state actors.

 Duffy alleges his incarceration violated the Due Process Clauses of both the Fifth *fn5" and Fourteenth Amendments. *fn6" The Fifth Amendment only applies to actions taken by the federal government, not state or local governments. See Schweiker v. Wilson, 450 U.S. 221, 227, 67 L. Ed. 2d 186, 101 S. Ct. 1074 (1981); Bartkus v. Illinois, 359 U.S. 121, 158-59, 3 L. Ed. 2d 684, 79 S. Ct. 676 (1959); Brock v. North Carolina, 344 U.S. 424, 426, 97 L. Ed. 456, 73 S. Ct. 349 (1953); In re Bankers Trust Co., 752 F.2d 874, 886 (3d Cir. 1985); Nguyen v. United States Catholic Conference, 719 F.2d 52, 54 (3d Cir. 1983). Duffy cannot recover on a § 1983 claim for violation of the Due Process Clause of the Fifth Amendment; that claim will be dismissed.

 The Fourteenth Amendment Due Process Clause protects against "abuse by a state official of his or her official position." Davidson, 752 F.2d at 826. Governmental conduct violates due process when it "shocks the conscience" of the court or is "arbitrary or irrational." See United States v. Salerno, 481 U.S. 739, 746, 95 L. Ed. 2d 697, 107 S. Ct. 2095 (1987); Hurtado v. California, 110 U.S. 516, 527, 28 L. Ed. 232, 4 S. Ct. 111 (1884); Giuffre v. Bissell, 31 F.3d 1241, 1258 (3d Cir. 1994).

 Not every breach of state law violates due process. See Reich v. Beharry, 883 F.2d 239, 242 (3d Cir. 1989). "'Violation of local law does not necessarily mean that federal rights have been invaded.'" Paul v. Davis, 424 U.S. 693, 699, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1976); see Davidson, 752 F.2d at 823-24. "'Errors of state law cannot be repackaged as federal errors simply by citing the Due Process Clause.'" Smith v. Horn, 120 F.3d 400, 414 (3d Cir. 1997) (quoting Johnson v. Rosemeyer, 117 F.3d 104, 109 (3d Cir. 1997)), cert. denied sub nom., District Attorney of Bucks County v. Smith, 118 S. Ct. 1037, 140 L. Ed. 2d 103 (1998). A plaintiff must allege an interest protected by the Due Process Clause.

 "The proper inquiry in a section 1983 claim based on false arrest or misuse of the criminal process is not whether the person arrested in fact committed the offense but whether the arresting officers had probable cause to believe the person arrested had committed the offense." Dowling v. City of Phila., 855 F.2d 136, 141 (3d Cir. 1988); see Groman v. Township of Manalapan, 47 F.3d 628, 634 (3d Cir. 1995). When probable cause existed for an arrest and the officer was not in violation of the Fourth Amendment, no substantive due process violation has occurred, even if the arrested individual was actually innocent. See Ruehman v. Sheahan, 34 F.3d 525, 528 (7th Cir. 1994). Whether an officer had probable cause to believe an individual committed an offense is an objective test, based on the facts available to the officers at the moment of arrest. See Barna v. City of Perth Amboy, 42 F.3d 809, 819 (3d Cir. 1994).

 "The Constitution does not guarantee that only the guilty will be arrested. If it did, § 1983 would provide a cause of action for every defendant acquitted-- indeed, for every suspect released." Baker v. McCollan, 443 U.S. 137, 145, 61 L. Ed. 2d 433, 99 S. Ct. 2689 (1979). "Due process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person." Patterson v. New York, 432 U.S. 197, 208, 53 L. Ed. 2d 281, 97 S. Ct. 2319 (1977). "Just as 'medical malpractice does not become a constitutional violation merely because the victim is a prisoner,' ... false imprisonment does not become a violation of the Fourteenth Amendment merely because the defendant is a state official." Baker, 443 U.S. at 146.

 "[A] sheriff executing an arrest warrant is [not] required by the Constitution to investigate independently every claim of innocence, whether the claim is based on mistaken identity or a defense such as lack of requisite intent." Id. at 145-46; see Criss v. City of Kent, 867 F.2d 259, 263 (6th Cir. 1988); Thompson v. Olson, 798 F.2d 552, 556 (1st Cir. 1986), cert. denied, 480 U.S. 908, 94 L. Ed. 2d 524, 107 S. Ct. 1354 (1987).

 Duffy, citing Sample v. Diecks, 885 F.2d 1099 (3d Cir. 1989), claims a § 1983 cause of action lies for wrongful incarceration. Sample was an inmate sentenced to a period of incarceration and then erroneously detained in prison for more than nine months after the date on which he was to be released. The Court of Appeals held that "imprisonment beyond one's term constitutes punishment within the meaning of the eighth amendment." Id. at 1108. The Eighth Amendment only applies to "convicted criminal defendants subjected to punishment in the context of criminal proceedings." Kelly v. Borough of Sayreville, 107 F.3d 1073, 1076 (3d Cir. 1997); see Ingraham v. Wright, 430 U.S. 651, 671-72 & n. 40, 51 L. Ed. 2d 711, 97 S. Ct. 1401 (1977). Sample was decided on Eighth Amendment grounds, not the Due Process Clause, and is inapposite.

 Even though substantive due process has not been violated by a false arrest and incarceration pending a court hearing, because the officer had probable cause, procedural due process may be implicated. Individuals have a liberty interest in remaining free from state custody; there is a procedural due process right to a hearing before a neutral magistrate to assess the propriety of continued confinement. See Jackson v. Virginia, 443 U.S. 307, 313, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979); Wolff v. McDonnell, 418 U.S. 539, 558, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974). But procedural due process is not violated by a ...

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