United States District Court, W.D. Pennsylvania
January 14, 2004.
JAMES L. LEVENTRY, Plaintiff
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
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] . . .
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
(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
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
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 subsequent
charges have been filed against Plaintiff.
Plaintiff alleges though that within "one month after Judge Smith's
dismissal" on August 26, 2002, the Defendants in the case sub judice
"began bargaining for more entrapment type activity with another
informant . . ." (Document No. 9). Plaintiff contends that the Defendants
have been "vindictive" and "selective" in their attempts to entrap
Plaintiff because Plaintiff knows "the law a little". (Document No. 9).
In particular, Plaintiff alleges in this complaint that Defendant,
Detective Price, has tried to recruit other informants in an attempt to
denounce the Plaintiff. (Document No. 7).
On December 30, 2002, Defendants filed a Motion to Dismiss Plaintiff's
claims pursuant to Fed.R.Civ.P. 12(b)(6).
When the court considers a Rule 12(b)(6) motion to dismiss, the issue
is not whether plaintiff will prevail in the end, or whether recovery
appears to be unlikely or even remote. The issue is limited to whether,
when viewed in the light most favorable to plaintiff, and with all
well-pleaded factual allegations taken as true, the complaint states any
valid claim for relief. In this regard, the court will not dismiss a
claim merely because plaintiff's factual allegations do not support the
particular legal theory he advances. Rather, the court is under a duty to
independently examine the complaint to determine if the factual
allegations set forth could provide relief under any viable legal
theory. See 5 A Charles Alan Wright & Arthur R. Miller, Federal Practice
Procedure § 1357, at 337 & n.40 (2d ed. 1990). See also Conley v.
Gibson, 355 U.S. 41, 45-46 (1957).
Before the Court can review Defendants' Motion to Dismiss on this
standard though, the Court must consider the threshold issue of whether
Plaintiff is collaterally estopped from advancing his claims in the case
As a general rule, the doctrine of collateral estoppel, now called
issue preclusion, precludes a party from relitigating in subsequent suits
issues that have been fully and fairly litigated in an earlier case. See
Montana v. United States, 440 U.S. 147 (1979). When an issue of fact or
law actually litigated and determined is essential to the judgment, the
determination is conclusive in a subsequent claim. See Electro-Miniatures
Corp. v, Wendon Co., 889 F.2d 41 (3d Cir. 1989).*fn2 Collateral estoppel
is appropriate if four factors are met: "(1) the issue to be precluded is
identical to that involved in a prior action; (2) the issue was actually
litigated; (3) there was a valid and final judgment; and (4) the
determination was essential to the prior judgment." Weber v. Henderson,
275 F. Supp.2d 616, 620 (E.D.Pa.) (citing Burlington N. Railroad Co. v.
Hyundai Merch. Marine Co., Ltd., 63 F.3d 1227, 1231 (3d Cir. 1995).
In the case sub judice, Plaintiff alleges that since Judge Smith's
Order dismissing Plaintiff's Civil Action No. 01-CV-220J, the following
has occurred: Defendant Price has recruited alleged drug suspects to
entrap Plaintiff (Document No. 2, ¶ 17); Defendants have
continued to harass and threaten Plaintiff with prosecution (Document
No. 2, ¶¶ 16, 18); and Defendants have unfairly targeted Plaintiff as
engaging in the practice of "doctor-shopping" despite the lack of
evidence to support such claims. (Document No. 9).*fn3 Plaintiff
subsequently requests that this Court enjoin the Defendants from the
following: "deploying entrapment" stings against him, using "illegal
electronic surveillance" against him, using deceptive tactics against
him, "cajoling" the Plaintiff into entering a "reverse sting",
interfering with Plaintiff's ability to seek methadone treatments, and
punishing Plaintiff for exercising his "constitutional and statutory
rights." (Document No. 2).
The issues of whether Defendants Tulowitzki, Miller, and Portash have
continually threatened Plaintiff with prosecution, unfairly targeted
Plaintiff as a drug-dealing suspect, and interfered with his ability to
exercise his federal constitutional rights have been already advanced by
Plaintiff in previous civil actions. Leventry v. Tulowitzki, et al., No.
02-CV-171-J (W.D. Pa.) (Chief Judge Donetta W. Ambrose dismissed
Plaintiff's claims filed under 42 U.S.C. § 1983 pursuant to the United
States Supreme Court holding in Heck v. Humphrey, 512 U.S. 477 (1994));
and Leventry v. Tulowitzki, et al., No. 01-CV-220-J (W.D.Pa.).
In Leventry v. Tulowitzki, et al., No. 01-CV-220-J (W.D.Pa.), the
Honorable D. Brooks Smith determined the following with respect to these
Leventry filed the instant action seeking injuntive
relief, apparently against both then-pending criminal
prosecution as well as any other future
doctor-shipping prosecution, [citations omitted]. The
criminal action against Leventry has since been
terminated, apparently, via a plea-bargain, and the
defendants in the instant civil action have moved to
dismiss the instant action. Because Leventry lacks
standing to pursue this claim, I will dismiss his
"The issue of standing is jurisdictional," St.
Thomas-St. John Hotel v. Gov't of the U.S. Virgin
Islands, 218 F.3d 232, 240 (3d Cir. 2000), and it must
therefore be addressed as a threshold issue in any
case before a United States Court, [citations
omitted]. There are three elements to constitutional
standing. There must be (1) a legally recognizable
injury-in-fact that is both (2) caused by the
defendant or at least traceable to him and (3)
redressable by the court, [citations omitted]. The
first element, injury-in-fact, must be concrete and
particularized, and actual or imminent as opposed to
conjectural or hypothetical, [citations omitted]. The
plaintiff bears the burden of establishing all three
As the Third Circuit has explained in a recent
decision, "[i]n cases where a plaintiff seeks
injunctive or declaratory relief only, . . . standing
will not lie if adjudication . . . rests upon
contingent future events that may not occur as
anticipated or indeed may not occur at all."
[citations omitted]. The instant case falls squarely
within this rule. As the course of these proceedings
has revealed, the criminal action against Leventry has
been terminated. As Leventry himself has stated, "this
Federal action is an exclusively prospective one,
seeking only the means for me to avoid a future
prosecution. . . ." [citations omitted]. Yet, nowhere
in his original complaint, amended complaint, or
various other papers has Leventry indicated that there
is an imminent threat that he will be unlawfully
prosecuted in the future. While an imminent threat of
a prosecution might enable some plaintiff to bring an
action similar to the instant one, there appears to be
no such imminent threat in this case, [footnote
omitted]. What Leventry appears to be seeking is an
injunction granting him immunity from criminal
prosecution, [footnote omitted]. Because he is under
no imminent threat of prosecution, he has not suffered
an injury-in-fact and therefore lacks standing. Thus,
I must dismiss this action in its entirety.
Leventry v. Tulowitzki, et al., No. 01-CV-220-J (W.D.Pa.).
This Court determines that Plaintiff's claims against Defendants were
already the subject of previous civil actions. The issues to be decided
in the case sub judice are identical to those
involved in the prior civil actions advanced by Plaintiff. Defendants*fn4
have established that the issue of whether Plaintiff's civil rights were
violated pursuant to 42 U.S.C. § 1983 was actually litigated in two
separate civil actions, Leventry v. Tulowitzki, et al., No. 02-CV-171-J
(W.D. Pa.) and Leventry v. Tulowitzki, et al., No. 01-CV-220-J (WD.Pa.),
that the issue was determined by a valid and final order, and that the
determination was essential to the judgment rendered.
Plaintiff seems to argue that new evidence should operate to preclude
the dismissal of Plaintiff's claims. Specifically, Plaintiff's complaint
alleges that new people are being recruited by Defendants in order to
entangle him into a sting operation. (Document No. 2). Additionally,
Plaintiff claims that he is the victim of retaliatory efforts by the
Defendants since he has learned to know a little about the practice of
the law. Id.
The Court acknowledges that "[c]hanged circumstances can operate to
preclude the operation of collateral estoppel." Scooper Dooper, Inc. v.
Kraftco. Corp. 494 F.2d 840? 846 (3d Cir. 1974). However, this exception
to the general rule of collateral estoppel is "limited to those instances
in which there are materially changed circumstances that implicate
controlling facts." Karibjanian v. Chromalloy Pharmaceutical, Inc. 1991
WL 34715 (E.D. Pa.) (citing Scooper Dooper, surpa).
Applying this standard to Plaintiff's apparent claim that new evidence
provides the necessary evidence in order to establish a prima facie case,
this Court finds that Plaintiff's "new evidence" does not trigger the
exception to the general rule of collateral estoppel. Although
Plaintiff attaches particular weight to Defendants' seeming need to learn
about Plaintiff's "household habits, the extent of [his] dependency and
the progress of [his] treatment," (Document No. 9) Plaintiff has failed
to demonstrate how Defendants have, in their official capacity, caused
the complained of constitutional violations. Accordingly, Plaintiff's
evidence in this complaint does not establish the existence of changed
factual circumstances that preclude the operation of collateral estoppel
The Court determines that since no exception to the general rule of
collateral estoppel is warranted, Defendants' Motion to Dismiss will be
granted on the basis of collateral estoppel.*fn5
AND NOW, this 14th day of January, 2004, after careful consideration of
Defendant's Motion to Dismiss Plaintiff's Complaint, IT IS HEREBY
ORDERED that all claims asserted against Defendants pursuant to
42 U.S.C. § 1983 are dismissed with prejudice. The clerk shall mark this
case "CLOSED" forthwith.