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LEVENTRY v. PRICE

January 14, 2004.

JAMES L. LEVENTRY, Plaintiff
v.
KEVEN PRICE, DAVID J. TULOWITZKI, ROD MILLER, and RON PORTASH, Defendants



The opinion of the court was delivered by: KIM GIBSON, District Judge

MEMORANDUM OPINION AND ORDER

This case comes before the Court on Defendants' Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6). (Document No. 6). Defendants seek dismissal of Plaintiff's claims on the basis that Plaintiff fails to state a claim for which relief may be granted and note that Plaintiff has raised issues previously decided by this court. Finding that Plaintiff's complaint raises identical issues to those addressed in earlier decisions, and in consideration of Defendants' Motion to Dismiss and Plaintiff's Response to Defendants' Motion to Dismiss, this Court grants Defendants' Motion to Dismiss on the basis of collateral estoppel.

FACTUAL AND PROCEDURAL BACKGROUND

  On July 30, 2001, the Plaintiff, James L. Leventry, filed an action seeking injunctive relief against the following defendants: David Tulowitzki, District Atttorney; David Kaltenbaugh, Assistant District Attorney; Don Gerrod, Assistant District Attorney; Rod Miller, Chief County Detective; Ron Portash, Assistant County Detective; and Gladys McGough, State Constable. Leventry v. Tulowitzki, et al., No. 01-CV-220-J (W.D. Pa.). Although Plaintiff alleged that he Page 2 was under imminent threat of prosecution, the Honorable D. Brooks Smith dismissed Plaintiff's claims in August 2002 finding that Plaintiff was "under no imminent threat of prosecution, he has not suffered an injury-in-fact and therefore lacks standing." Leventry v. Tulowitzki, et al, No. 01-CV-220-J (W.D. Pa.) (Document No. 34).

  On September 23, 2002, Plaintiff filed a notice of appeal to the United States Court of Appeals for the Third Circuit. (C.A. 3d Cir. 02-3673). The Third Circuit Court of Appeals filed an opinion on April 3, 2003 affirming the District Court's judgment.

  On June 26, 2002, Plaintiff initiated another claim in the United States District Court for the Western District of Pennsylvania. Leventry v. Tulowitzki et al., No. 02-CV-171-J (W.D. Pa.). Plaintiff alleged that defendants, David J. Tulowitzki, Rod Miller, and Ron Portash violated his civil rights pursuant to 42 U.S.C. § 1983. Id. Specifically, the court relied on the following facts and pleadings:
. . . James L. Leventry alleges that on June 29, 2000, he was arrested in a reverse sting operation by the Cambria County Drug Task Force, [citations omitted]. Tulowitzki is the District Attorney for Cambria County and serves as the head of the Cambria County Drug Task Force. Miller, Chief County Detective, and Portash, an Assistant County Detective, made the physical arrest, Plaintiff viewed the arrest and charges as `entrapment and/or outrageous government conduct.' Initially, the District Attorney's Office negotiated a plea offer, but negotiations broke down. As a result, Plaintiff alleges that Portash, acting on orders from Miller and Tulowitzki, filed additional charges in retaliation for not taking the plea. Ultimately, Plaintiff entered into a plea bargain agreement and pleaded guilty to a pharmacy act charge.
  As a result of the incidents above, Plaintiff filed the within Complaint in this Court pursuant to 42 U.S.C. § 1983 for violations of his civil rights and constitutional rights, as well as, state torts. Although the Complaint is, at best, difficult to understand, I have discerned Plaintiff is apparently asserting that Defendants are liable for malicious prosecution and abuse of process for `conspiracy because of their agreement to prosecute Leventry by unlawful means, first by entrapping him and second by imposing additional charges over seven months later when Leventry refused to plead guilty.' [citations omitted] . . . Page 3 Plaintiff also asserts that Defendants conducted `unconstitutional warrantless searches' which violated his state and federal constitutional rights which led to the denial of due process, equal protection, freedom of assembly and `unenumerated rights.' [citations omitted]. Finally, Plaintiff alleges he was falsely arrested and imprisoned. Consequently, Plaintiff seeks damages, both actual and punitive, as his requested relief.

 Leventry v. Tulowitzki, et al, No. 02-CV-171J (W.D. Pa.).

  On January 24, 2003, Chief Judge Donetta W. Ambrose granted defendants' motion to dismiss. Leventry v. Tulowitzki, et al., No. 02-CV-171-J (W.D. Pa.) The court determined that if all of the potential claims brought by Plaintiff pursuant to 42 U.S.C. § 1983 were true, ("malicious prosecution, conspiracy, false arrest, equal protection, due process, and freedom of assembly)" then the validity of his conviction would be challenged. Id. However, in his complaint, the Plaintiff never pled that the conviction was "reversed on appeal, expunged by executive order, or declared invalid by an unauthorized state tribunal." Id. Thus, the court, in its reliance on Heck v. Humphrey, 512 U.S. 477 (1994) held that "a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence . . . the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated." Leventry v. Tulowitzki, et al., No. 02-CV-171-J (W.D.Pa) (quoting Heck, 512 U.S. at 486-87).*fn1

  Again, Plaintiff appealed to the United States Court of Appeals for the Third Circuit. (C.A. 3d Cir. 03-1529). In its judgment entered on May 22, 2003, the Court of Appeals dismissed Plaintiff's case for failure to timely prosecute. Leventry v. Tulowitzki, et al., No. 02-CV-171-J Page 4 (W.D. Pa.) (Document No. 19).

  Plaintiff subsequently filed the above captioned case on November 1, 2002 seeking equitable relief from threatened criminal prosecution under the authority of Ex parte Young 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). The facts under which Plaintiff bases his present claim are similar to the facts upon which his other claims were predicated. See Leventry v. Tulowitzki, et al., No. 02-CV-171-J (W.D, Pa.)

  Plaintiff concedes in his complaint in the case sub judice that he has been an outpatient at Addiction Specialist, Inc., a methadone clinic, since April 12, 2000, (Document No. 1). On June 29, 2000, Detectives Miller and Portash arrested Plaintiff for violating the Pennsylvania Controlled Substance Drug Device and Cosmetic Act. 35 P.S. § 780-113. ("Act") (Document No. 7). The arrest culminated from a reverse sting operation whereby Plaintiff attempted to purchase approximately 60 Oxycontin tablets from a confidential informant. (Document No. 7). Plaintiff was offered a plea bargain for the aforementioned criminal charges; however, he rejected the plea bargain and demanded a trial by jury. (Document No. 7).

  On February 28, 2001, subsequent charges were filed against the Plaintiff for obtaining a controlled substance by "misrepresentation, fraud, forgery, deception or subterfuge." (Document No. 7). These charges stemmed from two separate incidents, June 16, 2000 and July 20, 2000. (Document No. 7). Specifically, the charges allege that Plaintiff violated the Act by obtaining Oxycontin tablets from a physician while also attending methadone treatments for an opiatic dependency. (Document No. 9).

  Plaintiff hired counsel and defended against the criminal charges. Plaintiff's then counsel filed pretrial motions to suppress certain evidence and to dismiss the charges alleging bad faith Page 5 and selective prosecution. (Document No. 7). Certain motions to suppress were granted, but the motion to dismiss for bad faith and selective prosecution was denied. Id.

  On June 19, 2001, Plaintiff entered into a plea agreement which resolved all outstanding charges against the Plaintiff. No ...


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