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Joseph Guarrasi v. County of Bucks et al

March 28, 2011


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


Joseph Guarrasi, a pro se state prisoner and former attorney, brings this suit against twenty-two defendants pursuant to 42 U.S.C. §§ 1981, 1982, 1983, 1985, 1986, and 1987.*fn1 Guarrasi alleges that the defendants violated his rights under Articles I, IV, V, VI, VIII, and XIV of the Constitution by depriving him of an adequate post-deprivation remedy to retrieve his personal property seized on March 2, 2004. Currently before the court are four separate motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) filed by defendants Cuba, Hower, Zartman, and Borough of Hatboro; a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(5) or 12(b)(6) by County of Montgomery; and a joint motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) or, in the alternative, a motion for a more definite statement, filed by defendants County of Bucks ("Bucks County"), Kerner, McAteer, Carroll, Gibbons, McDonough, Gorman, Lachman, Mosiniak, and Walp (collectively, "the Bucks County defendants"). For the reasons set forth below, I will grant all six motions to dismiss.

I. Factual and Procedural History*fn2

Guarrasi was arrested for various inchoate felonies*fn3 and his personal property was seized after his homes, office, vehicles, and person were searched on March 2, 2004, pursuant to a warrant and as a search incident to arrest. (Compl. ¶¶ 29, 37.) The seized property includes deeds, titles to four vehicles, stocks, corporate kits to six corporations, client files, over $10,000 from his safe and over $2,000 from his wallet, five registered handguns and a shotgun, household items, and credit and bank records as well as personal records and various documents.*fn4 (Id. ¶ 31.) The money seized was not recorded on the inventory receipt. (Id. ¶ 33, Ex. 1 "Warrant Inventory List.") No property was forfeited or placed into evidence "at the termination of his criminal proceedings on May 25, 2005." (Id. ¶ 41.)*fn5

Guarrasi has continuously sought the return of his property since the seizure occurred on March 2, 2004.*fn6 (Id. ¶ 42.) Guarrasi, through his attorney Richard Fink, attempted to retrieve his property immediately after the completion of criminal proceedings on May 25, 2005. (Id. ¶ 46, Ex. 5 "Letter 9/23/2005 Fink.") In a letter dated November 3, 2005, Fink informed Guarrasi that he had filed the petition for return of seized property. (Id. ¶ 46, Ex. 5 "Letter 11/3/2005 Fink.") From 2005 until 2008, Fink worked with the prosecutor's office in an effort to come to an agreement over what could be returned to Guarrasi. (Id. ¶¶ 46-57.) Through a series of letters, Fink updated Guarrasi about his conversations with Assistant District Attorney Gambardella, in which Gambardella assured Fink that all property without evidentiary value would be returned. (Id.) In several letters, however, Fink explained to Guarrasi that Gambardella would not "return any evidence which might conceivably relate to the evidence which the prosecution might use in a new trial."(Id. ¶ 49.)

In July 2006, Fink and Gambardella agreed to come to a resolution regarding the return of property and present it in the form of a stipulation to Judge Biehn of the Court of Common Pleas of Bucks County. (Id. ¶¶ 51-52.) But "defendants continue[d] to stall." (Id. ¶ 53.) Nevertheless, Fink continued to work with the prosecutor's office. Fink explained to Guarrasi, however, that notwithstanding Gambardella's promise to review Guarrasi's requests for the return of his property, some items were "contested by the District Attorney's office since your case may be on post-sentence motions and/or appeal, and should be approached at the conclusion of those motions." (Id. Ex. 9 "Letter 5/8/2006 Fink.") Also, Fink wrote that "on at least one occasion [Gambardella] indicated that an appeal was pending. This would prevent return of seized property." (Id. ¶ 55, Ex. 14 "Letter 1/11/2007 Fink.") Despite continued assurances that all non-contraband, non-evidentiary property would be returned, no resolution was reached and no property was returned. (Id. ¶¶ 55-57.)

Then, Guarrasi received a letter from Gambardella on May 31, 2007, stating that the detectives were too busy to go through the inventory at that time to determine whether Guarrasi's property should be returned, and that the Commonwealth opposes the return of many of the items listed in Guarrasi's petition for the following reasons:

(1) The items have evidentiary value and appeals have not been exhausted.

(2) The items are contraband.

(3) The items are evidence of other crimes (as there is evidence of alleged child pornography on the computers, we oppose their return).

(4) The items are firearms, which you may not own or possess as a result of your convictions

(5) The item relates to the informants and serves no value to you.

(Id. Ex. 16 "Letter 5/31/2007 Gambardella.") Gambardella invited Guarrasi to submit a list of items that Guarrasi wanted returned along with an explanation as to why those items are not disqualified based on the reasons listed above. (Id.) Guarrasi does not allege whether he responded to Gambardella's letter.

Guarrasi petitioned the Court of Common Pleas of Bucks County for the return of his property,*fn7 and a hearing was scheduled for January 23, 2008. (Id. ¶¶ 58-59.) The Honorable Albert J. Cepparulo denied Guarrasi's motion, stating, "We are here today on an open PCRA . . . therefore the petition for the return of property is denied as untimely." (Id. ¶ 59, Ex. 18 "Transcript 1/23/2008.") Guarrasi does not allege that he has appealed this order. Nor does he allege whether his PCRA petition has been resolved or is on appeal. Guarrasi sought a writ of mandamus from the Pennsylvania Supreme Court on January 24, 2008, requesting a recusal, change of venue, and the return of property. (Id. ¶ 60.) Guarrasi's new counsel, Ronald Elgart, in a letter dated February 25, 2008, acknowledged the futility of Guarrasi's continued motions for the return of property, explaining that the property is "quite clearly not going to be released until you have exhausted all of your post conviction appeals." (Id. ¶ 61, Ex. 20 "Letter 2/5/2008 Elgart.") From January 23, 2008, to October 1, 2009, the Court of Common Pleas of Bucks County refused to hear his further motions. (Id. ¶ 62.) On January 14, 2009, Guarrasi filed an interlocutory appeal to the Superior Court of Pennsylvania, appealing a December 18, 2008, order denying his motion for recusal. (Id. ¶ 63, Ex. 21 "Time-Stamped Notice of Appeal.") And in a letter dated February 26, 2009, the Bucks County Court Administrator advised Guarrasi that the court declined to act on his renewed motion for recusal and change of venue. (Id. ¶ 64.) Then, on May 26, 2009, Guarrasi learned from an expert that he hired that renter Falco, had not been arrested, charged, or convicted, received an opportunity to challenge the validity of the seizure and to request the return of his laptop at a hearing scheduled a few months after the seizure. (Id. ¶ 39.)

Guarrasi received a letter on July 27, 2009, from the Bucks County Solicitor's Office stating that $2,000 of the money seized was, with Guarrasi's agreement, forfeited. (Id. ¶ 65, Ex. 23 "Letter 7/21/2009 Bucks County Solicitor.")*fn8 But Guarrasi claims that he never agreed to the forfeiture. (Id. ¶ 72.) In response to Guarrasi's request for the chain of custody and the alleged forfeiture agreement, the Bucks County Solicitor explained that the forfeiture was pursuant to a verbal agreement made between Fink and Gambardella before Judge Biehn "that took place in the hallway adjacent to Courtroom 1;" the agreement was that the forfeited funds could be used to purchase electronic surveillance equipment." (Id. ¶ 67, Ex. 25 "Letter 1/8/2010.") Gambardella believed that it was reduced to a writing or order, but he could not find a copy, and that the money was in the prosecutor's office's account and had not been spent. (Id.) Guarrasi did not receive, however, a chain of custody as requested. (Id. ¶ 68.) After hiring a private investigator who could not find any evidence of a forfeiture hearing, Guarrasi filed a right-to-know request. (Id. ¶ 69.) On February 2, 2010, Bucks County Open Records Officer Det. Lt. Gorman wrote to Guarrasi that the money was deposited in the bank on July 7, 2005, by order of Judge Biehn directing it be forfeited. (Id., Ex. 26 "Letter 2/2/2010 Gorman.") Guarrasi alleges that the letter did not provide a chain of custody or photocopy of the currency forfeited.*fn9 (Id. ¶¶ 69-70.) Guarrasi questioned Fink about his participation in the forfeiture agreement, but Fink denied making such an agreement. (Id. ¶ 71.)

Guarrasi filed his fifth return of property motion and on March 1, 2010, he received notice that the court declined to act upon the application. (Id. ¶¶ 73-74.) Guarrasi alleges that also on March 1, 2010, he conclusively learned that it is defendants' municipal policy and custom, which is given force of law by the Bucks County court, that no post-deprivation remedy for the return of property exists until all post-conviction appeals are exhausted. (Id. ¶¶ 44-45.)

Guarrasi filed his complaint on July 1, 2010. On October 1, 2010, defendant Cuba filed a motion to dismiss. On October 8, 2010, the Bucks County defendants filed a joint motion to dismiss or, in the alternative, a motion for a more definitive statement. Then, on October 14, 2010, defendant Hower filed a motion to dismiss. On January 11, 2011, defendant Zartman also filed a motion to dismiss. Defendant Hatboro's motion to dismiss was filed on January 17, 2011.

Lastly, defendant Montgomery County filed a motion to dismiss on January 24, 2011.

II. Legal Standard

"To survive a motion to dismiss [under Rule 12(b)(6)], a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949 (2009).

In evaluating a motion to dismiss, "the factual and legal elements of a claim should be separated." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). The court "must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions." Id. at 210-11. The assumption of truth does not apply to legal conclusions couched as factual allegations or to "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Iqbal, 129 S. Ct. at 1949. Rather, the complaint must contain "'enough factual matter (taken as true) to suggest' the required element. This 'does not impose a probability requirement at the pleading stage,' but instead 'simply calls for enough facts to raise a reasonable ...

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