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Walke v. Cullen

May 14, 2009

LAVELLE WALKE
v.
JAMES CULLEN, ET AL.,



The opinion of the court was delivered by: McLaughlin, J.

MEMORANDUM

This is a civil rights suit brought, pro se, by Lavelle Walke*fn1 against two police officers, challenging actions taken during Mr. Walke's arrest and prosecution. The case was stayed pending the resolution of the criminal proceedings against Mr. Walke. Those proceedings have now concluded. Mr. Walke was convicted of felony possession of cocaine and firearms and Mr. Walke's direct appeal has ended with the Pennsylvania Supreme Court's denial of allocatur. The defendants, Officers James Cullen and Robert Freil, have moved to dismiss on the ground that Mr. Walke's now-final conviction bars his claims under Heck v. Humphrey, 512 U.S. 477 (1994).

Mr. Walke has not filed a response to the defendants' motion. The motion was filed on February 6, 2009, but Mr. Walke did not receive a copy of it until April 3, 2009.*fn2 The Court ordered Mr. Walke to file his response by May 1, 2009. On April 20, 2009, Mr. Walke wrote the Court, stating that he could not respond to the motion to dismiss without "a copy of the original § 1983 motion," which he no longer has, but which he has requested "from the Clerk's office." Mr. Walke states the reason he no longer has a copy is that he "went to Butner F.C.I. Medical Center for evaluation, and F.D.C. Philadelphia, before I went to trial, and my properties were lost."

By "the original § 1983 motion," the Court understands Mr. Walke to be referring to his complaint in this matter. The Court understands Mr. Walke to be saying that his copy of the complaint was lost when he was transferred, sometime before he went to trial. Mr. Walke was convicted in September 2008 and presumably lost his copy of his complaint sometime before then. Mr. Walke does not explain why he did not request a replacement copy of his complaint earlier nor does he explain why, despite several communications with the Court and repeated extensions of the deadline to respond to the motion to dismiss, he failed to mention the loss of his complaint until now.

The Court finds that Mr. Walke has not provided adequate grounds for another extension of his deadline to respond to the defendants' motion to dismiss. The Court will therefore proceed to decide the motion. Because Mr. Walke is proceeding pro se, Mr. Walke's failure to file a timely response will not result in the motion to dismiss being granted as uncontested. Instead, the Court will examine the defendants' motion on the merits and grant it only to the extent that the defendants have established that Mr. Walke cannot state a claim. See Stackhouse v. Mazurkiewicz, 951 F.2d 29 (3d Cir. 1991).

The Court will grant the defendants' motion to dismiss in part and deny it in part. The Court will dismiss Mr. Walke's claims for damages resulting from his post-conviction incarceration and confinement, finding those claims barred by Heck v. Humphrey. The Court will dismiss sua sponte Mr. Walke's claims concerning the actions of his criminal counsel and the allegedly improper search of his real estate, voter, and motor vehicle records. The Court will deny the motion to dismiss as to Mr. Walke's other claims because the Court lacks sufficient information to conduct the "fact-based" analysis of them required under Heck. This denial is without prejudice to the defendants' ability to argue that these claims are barred by Heck at a later stage of the proceedings on a fuller record.

I. ALLEGATIONS OF THE COMPLAINT

Mr. Walke's complaint was filed on the form provided by the United States District Court for the Eastern District of Pennsylvania for prisoners seeking to bring pro se suits under 28 U.S.C. § 1983. The complaint named as defendants police officers James Cullen and Robert Friel and Assistant United States Attorney Gallagher. AUSA Gallagher has already been dismissed.

Mr. Walke's complaint contains a lengthy statement of his case. He makes a number of different claims, all of which involve alleged violations of his substantive and procedural due process rights.

Mr. Walke alleges that he was deprived of procedural due process when property of his was taken without notice or hearing. Mr. Walke appears to be alleging that his assets were taken prior to his conviction in alleged violation of "Title 26 U.S.C. Section 2461(c)." There is no such section of the U.S. Code, but the plaintiff is likely referring to 28 U.S.C. § 2461(c), which allows the government to seek forfeiture, if authorized by statute, as part of a defendant's indictment. The complaint does not clearly specify the property allegedly taken, although it does say Mr. Walke "claims a Property interest at 7032 Cedar Park, in obtaining personal property and records." Compl. pp 4-5.

Mr. Walke alleges he was deprived of both procedural and substantive due process in the events leading up to his arrest. He specifically alleges that there was a lack of probable cause for his arrest, that the police investigated his motor vehicle and real estate records without complying with the provisions of 18 U.S.C. §§ 2721-2725; that the police subjected him to an unreasonable search and seizure; and that the police at some point blindfolded him, which Mr. Walke contends was in violation of the law. Compl. pp. 5-6. Mr. Walke also appears to challenge the use by the police of a confidential informant to obtain a warrant (it is unclear whether a search or arrest warrant) for Mr. Walke, alleging that the informant's testimony was not sufficiently reliable to support issuance of the warrant. Compl. pp 9-10.

Mr. Walke also alleges constitutional violations during his trial, both in the failure to suppress evidence and his counsel's alleged ineffective conduct. He states that certain evidence used against him at trial was found at his home as a result of an involuntary statement he made before being given his Miranda warnings. He also alleges that the defendant officers were allowed to testify about these statements at trial. Mr. Walke argues that his constitutional rights were violated when these statements and the evidence resulting from them were used at his trial. Mr. Walke also alleges that his rights were violated because he was not able to have his court-appointed counsel removed. Compl. pp. 6-12.

At the end of his statement of the case, Mr. Walke summarizes his claims:

Continued detention is illegal. The trial court cannot conclude that the circumstances warranting the issuance of the arrest warrant was specific and articulable justifying directing a reasonable officer to the plaintiff. The police officers lacked reasonable suspicion to search the plaintiff[']s home, the search violated the Fourth Amendment, the plaintiff[']s confession was not a product of knowing and intelligent waiver of his MIRANDA right. All the evidence obtain[ed] in violation of the plaintiff's Fifth Amendment right against self-incrimination, should have been suppressed, district court erred in forcing Attorney Tinari upon the plaintiff when the plaintiff ...


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