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McGarrey v. Marquart

January 12, 2010

DAVID B. MCGARREY, PLAINTIFF,
v.
MRS. MARQUART, RECORDS SUPERVISOR AT SCI MERCER, INDIVIDUALLY; MR. STOWICKY, SUPERINTENDENT OF SCI MERCER, INDIVIDUALLY, BRIAN MCCOLLIM; DIRECTOR OF CCC ALLE-KISKI, INDIVIDUALLY, JASON GORDISH, PA DEPT. OF CORRECTIONS COUNSELOR, INDIVIDUALLY; MR. GENT, SCI MERCER EMPLOYEE, INDIVIDUALLY; MS. JANET KIMMEL, SCI MERCER COUNSELOR, INDIVIDUALLY; DAVID JENKINS, COMMUNITY CORRECTIONS PAROLE AGENT, INDIVIDUALLY; JOANNE RICARDI, RSAT SUPERVISOR PAROLE AGENT, INDIVIDUALLY; KATHERINE ROWE, CASE ANALYSIS PBPP, INDIVIDUALLY; ALAN M. ROBINSON, PBPP ASSISTANT COUNSEL, INDIVIDUALLY; AND INVESTIGATOR RAY HEINLE, PENNSYLVANIA DEPT. OF CORRECTIONS, INDIVIDUALLY, DEFENDANTS.



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

MEMORANDUM OPINION AND ORDER OF COURT

Presently before the Court is the MOTION TO DISMISS PLAINTIFF'S SECOND AMENDED COMPLAINT, with brief in support, filed by Defendants Mrs. Marquart, Mr. Stowicky, Mr. Gent, Janet Kimmel, David Jenkins, Joanne Ricardi, Katherine Rowe, Allen M. Robinson and Ray Heinle (Document Nos. 78 and 79); the MOTION TO DISMISS (JOINDER) filed by Defendants Brian McCollim and Jason Gordish (Document No. 86), the RESPONSE and BRIEF in Opposition filed by Plaintiff (Document Nos. 89 and 90), and the REPLY BRIEF filed by Defendants McCollim and Gordish. All briefs have been timely filed and the matter is now ripe for disposition.

BACKGROUND

The events leading up to this lawsuit began on October 30, 1998, when Plaintiff David McGarrey ("Plaintiff") pled guilty in the Court of Common Pleas of Beaver County, Pennsylvania to five counts of theft by deception and one count of driving under the influence. Thereafter, Plaintiff was sentenced to a term of imprisonment of four (4) to ten (10) years.

On March 17, 2004, after being incarcerated for approximately five and one-half years, the Pennsylvania Board of Probation and Parole ("PBPP") granted Plaintiff parole and mandated that he complete the Pennsylvania Department of Corrections ("DOC") Residential Substance Abuse Treatment ("RSAT") Program. In a decision letter dated March 22, 2004, which is attached to Plaintiff's Complaint, the PBPP stated that Plaintiff was to be "reparoled to Phase II upon successful completion of Phase I. [Plaintiff] [m]ust successfully complete Phase II and Phase III of RSAT supervision." (Document No. 93-2).*fn1

On April 12, 2004, the Pittsburgh RSAT office received a second letter from the PBPP regarding Plaintiff's participation in the RSAT program. Plaintiff alleges that this second letter was fraudulently created and then placed in his DOC file, replacing the letter dated March 22, 2004, in order to improperly charge him with the crime of escape. The April 12, 2004 letter differs from the March 17, 2004 letter only insofar as it states that Plaintiff was "[r]eparoled to an approved plan upon successful completion of phase II of RSAT. [Plaintiff is] required to complete Phase III of RSAT supervision."*fn2 (Document No. 60-4) (emphasis added). Despite the change in language, both letters reflect that, pursuant to directives from the PBPP, Plaintiff was placed in Phase II of the RSAT program on March 17, 2004, at the Alle-Kiski Community Corrections Center. Both letters also indicate that Plaintiff was required to complete Phase III of the RSAT program as a prerequisite to his release.

Plaintiff alleges that he was paroled on March 17, 2004, and that on August 15, 2004, he legally "relocated" to the State of Colorado.*fn3 Plaintiff further alleges that on August 19, 2004, four (4) days after he relocated to Colorado, the PBPP "temporarily suspended" his parole without hearing or due process. Plaintiff alleges that Defendant Brian McCollim (Director of Alle-Kiski) and those individuals working under his authority, mistakenly and negligently classified Plaintiff as an escapee, which resulted in a warrant for his arrest being issued.

On February 8, 2005, Plaintiff, while in Colorado, was taken into custody as an escapee. He waived extradition, was transported back to Pennsylvania, and was returned to the custody of the Pennsylvania DOC. Plaintiff alleges that he was held in the "hole" without access to counsel until December 23, 2005, when Judge R.D. Hathaway dismissed the fugitive charges filed against him.

On March 8, 2006, Plaintiff sent a letter to the Pennsylvania DOC at SCI Somerset and a letter to Alan M. Robinson, the Assistant Counsel to the PBPP. The two letters, which are both attached to the Complaint, reflect Plaintiff's desire to bring a civil action against the named agencies pursuant to 42 PA. CONS. STAT. ANN. § 5522. The letters allege that Plaintiff "did not become aware of incident (sic) until he was extradited back to Pennsylvania from the State of Colorado and brought before District Justice Frank J. Pallone, Jr. on or about April 14, 2005."

On March 9, 2007, a year after Plaintiff sent his two letters, Plaintiff, pro se, filed the present action in the United States District Court for the Eastern District of North Carolina, Southern Division. On October 29, 2007, the district court in North Carolina granted the request of the Defendants to transfer the case to the United States District Court for the Western District of Pennsylvania on the basis of improper venue pursuant to, inter alia, Title 28, United States Code, § 1406(a), and Title 28, United States Code, § 1391(b).

On April 29, 2009, Plaintiff, through counsel, filed a Second Amended Complaint, which is the subject of the present motions to dismiss. In the Second Amended Complaint, Plaintiff alleges four (4) counts of civil rights violations, all purportedly arising under Title 42, United States Code, § 1983.

In Count One of the Second Amended Complaint,*fn4 Plaintiff alleges that his constitutional rights were violated by his "unlawful and malicious arrest. In Count Two,*fn5 Plaintiff alleges that his constitutional rights were violated as a result of the "concerted unlawful and malicious detention and confinement." In Count Three,*fn6 Plaintiff alleges that Defendants conspired to deprive him of his liberty in violation of the Fifth and Fourteenth Amendments. Finally, in Count Four,*fn7 Plaintiff claims that Defendants "knowingly, recklessly, or with gross negligence failed to instruct, supervise, control and discipline on a continuing basis any and all officers, agents and employees" who engaged in the alleged acts of false imprisonment, false arrest, and conspiracy.

All Defendants have moved to dismiss the Second Amended Complaint for failure to state a claim upon which relief can be granted. See FED. R. CIV. P. 12(b)(6). Defendants argue, inter alia, that Plaintiff's claims are barred by the applicable statute of limitations because all of Plaintiff's alleged claims accrued on February 8, 2005, the day Plaintiff was arrested in Colorado. Defendants also argue that the letters sent by Plaintiff to the two state agencies are not adequate to toll the statute of limitations because such letters do not apply to claims in federal court and, further, because such letters do not constitute adequate service of process. In response, Plaintiff contends that his lawsuit is not time-barred because he did not become aware of the "incident" until he was ...


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