Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Burch v. Commonwealth

March 19, 2010

DALE BURCH, PLAINTIFF,
v.
COMMONWEALTH OF PENNSYLVANIA, BOARD OF PROBATION AND PAROLE, ET AL., DEFENDANTS.



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

MEMORANDUM OPINION

Presently pending before the Court are Motions to Dismiss filed on behalf of the Pennsylvania Board of Probation and Parole, Caroline McVey, Joseph Motts, and Shawn Hartman (Docket No. 12) and the Erie County Public Defender's Office, Tony Logue, Michael DeJohn and Carolyn Gold (Docket No. 20). For the reasons which follow, the motions will be granted.

I. BACKGROUND

The following allegations are gleaned from the Plaintiff's Complaint: on or about August 9, 2006, the Plaintiff, Dale Burch ("Burch"), while on parole for past convictions for operating a motor vehicle without a license, became involved in a non-violent confrontation with his housemate, Sue Van Tassel. (Complaint ¶¶ 11-13). During the course of the altercation, another individual living with Burch and Van Tassel, Nathan Barstow, obtained a knife and stabbed Burch while Van Tassel and her daughter held his arms. (Complaint ¶ 15). Burch sustained injuries that required hospitalization and aftercare. (Complaint ¶ 15). While in the hospital, Burch was interviewed by Sergeant Kevin Goode of the Corry Police Department concerning the altercation. Goode allegedly found "no evidence of a struggle or injuries to [Van Tassel]." (Complaint ¶ 16).

On August 16, 2006, shortly after his release from the hospital, Burch was arrested and charged with violating his parole by exhibiting "assaultative tendencies" and "failing and refusing to take prescribed psychotropic medication."*fn1 (Complaint ¶ 17). Burch admits that he had not been taking his medication but blames "Medicaid errors" and an inability to pay for the medication. (Complaint ¶ 17). He denies that he engaged in any "violent or threatening acts" and contends that his arrest was the result of false statements provided by Van Tassel and Barstow and a "personal vendetta" against him by his parole officer, Shawn Hartman ("Hartman"), and the Pennsylvania Board of Probation and Parole ("Parole Board"). (Complaint ¶ 18).

Following his arrest, Plaintiff was provided legal representation through the Erie County Public Defender's Office ("Public Defender's Office") with respect to the parole violations. (Complaint ¶ 19). Assistant Public Defenders Michael DeJohn ("DeJohn") and Carolyn Gold ("Gold") undertook to represent Burch under the direction of Chief Public Defender Tony Logue ("Logue").*fn2 According to Burch, the Public Defender Defendants refused to gather evidence or interview witnesses, attend parole hearings on his behalf, present evidence or testimony at parole hearings, consult with Burch as to his defense, or otherwise provide adequate legal representation. (Complaint ¶¶ 21-22). Burch contends that the Public Defender Defendants ignored his numerous requests to gather evidence or interview witnesses, including Sergeant Goode. (Complaint ¶ 20). He further contends that the Parole Board and Logue failed to adequately train and supervise DeJohn or Gold, all of which resulted in his confinement pursuant to the allegedly improper parole revocation. (Complaint ¶ 21-22).

On February 17, 2009, Burch filed a Complaint in the Court of Common Pleas of Erie County, Pennsylvania, alleging fourteen separate counts against eight defendants. In addition to the Public Defender Defendants, Burch names as defendants the Parole Board, Hartman, Hartman's Supervisor, Joseph Mott ("Mott"), and the Chairman of the Parole Board, Catherine McVey ("McVey").*fn3

Count I of the Complaint seeks relief against all Defendants pursuant to 42 U.S.C. § 1983 claiming, inter alia, that his arrest was effectuated without probable cause in violation of the Fourth Amendment. Counts II and VII attempt to state a claim against an individual identified only as "NGD" who does not appear in the caption as a named defendant and against whom Burch makes no factual allegations. Count III alleges a violation of Burch's rights under the Pennsylvania Constitution. Counts IV-VI, VIII-XI and XIII-XIV consist of various state law tort claims against the Parole Board, Mott and Hartman.*fn4 Finally, in Count XII, Plaintiff asserts a legal malpractice claim against the Public Defender Defendants.

Subsequent to the removal of the action to federal court, the Commonwealth Defendants and the Public Defender Defendants each filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Burch responded to each motion with the assistance of counsel and thereafter supplemented his response with his own pro se filing. This matter is ripe for review.

II. STANDARD FOR REVIEW

Rule 8(a) of the Federal Rules of Civil Procedure states that a pleading must set forth a claim for relief which contains a short and plain statement of the claim showing that the pleader is entitled to relief. A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) must be viewed in the light most favorable to the plaintiff and all the well-pleaded allegations of the complaint must be accepted as true. Erickson v. Pardus, ___ U.S. ___, ___ 127 S.Ct. 2197, 2200 (2007); Neitzke v. Williams, 490 U.S. 319 (1989); Estelle v. Gamble, 429 U.S. 97 (1976). The issue is not whether the plaintiff will prevail at the end but only whether he should be entitled to offer evidence to support his claim. Neitzke; Scheuer v. Rhodes, 419 U.S. 232 (1974). As the United States Supreme Court recently held in Bell Atlantic Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955 (May 21, 2007), a complaint must be dismissed pursuant to Rule 12 (b)(6) if it does not allege "enough facts to state a claim to relief that is plausible on its face." Id. at ___, 1974 (rejecting the traditional 12 (b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41 (1957)). The court must accept as true all allegations of the complaint and all reasonable factual inferences must be viewed in the light most favorable to plaintiff. Angelastro v. Prudential-Bache Securities, Inc., 764 F.2d 939, 944 (3rd Cir. 1985). The Court, however, need not accept inferences drawn by plaintiff if they are unsupported by the facts as set forth in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3rd Cir. 2004) (citing Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3rd Cir. 1997)). Nor must the court accept legal conclusions set forth as factual allegations. Twombly, ___ U.S. ___, 127 S.Ct. at 1965 citing Papasan v. Allain, 478 U.S. 265, 286 (1986). "Factual allegations must be enough to raise a right to relief above the speculative level." Twombly, ___ U.S. ___, 127 S.Ct. at 1965. Although the United States Supreme Court does "not require heightened fact pleading of specifics, [the Court does require] enough facts to state a claim to relief that is plausible on its face." Id. at ___, 1974.

In other words, at the motion to dismiss stage, a plaintiff is "required to makes a 'showing' rather than a blanket assertion of an entitlement to relief." Smith v. Sullivan, 2008 WL 482469 (February 22, 2008) (quoting Phillips v. County of Allegheny, ___ F.3d ___, 2008 WL 305025, at *5 (3rd Cir. Feb. 5, 2008)). "This does not impose a probability requirement at the pleading stage, but instead simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element." Phillips, 2008 WL 305025, at *6 (quoting Twombly, ___ U.S. at ___, 127 S.Ct. at 1965 n.3).

III. ANALYSIS

Although the Defendants raise several arguments in support of their motions to dismiss, I will confine my analysis, in large measure, to the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.