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Patrick Brown v. Francis Chardo

March 22, 2012

PATRICK BROWN,
PLAINTIFF,
v.
FRANCIS CHARDO, DEFENDANT



The opinion of the court was delivered by: (Judge Conner)

MEMORANDUM

This is a civil rights action filed by Patrick Brown ("Brown") against Francis Chardo ("Chardo"). Brown alleges that Chardo, a Dauphin County Assistant District Attorney, violated his Fourth, Sixth and Fourteenth Amendment rights under the United States Constitution and his rights under the Pennsylvania Constitution and Pennsylvania tort law by failing to disclose the results of a DNA report during Brown's post conviction relief proceedings on a burglary conviction. Presently before the court is the motion (Doc. 10) to dismiss filed by Chardo. For the reasons that follow, the court will grant the motion in part and deny it in part.

I. Background*fn1

In 2001, plaintiff Patrick Brown was convicted in the Court of Common Pleas of Dauphin County of burglary, criminal conspiracy, robbery and persons not to possess firearms. (Doc. 1 ¶ 6). The court sentenced Brown to 22 to 70 years incarceration. (Id.) The case, prosecuted by Assistant District Attorney Chardo, rested solely upon the eyewitness account of the victim, who identified Brown as one of two burglars and the suspect who wore the blue bandana. (Id. ¶ 7). At the time of trial the jury knew that the DNA recovered from the blue bandana and a glove left at the scene of the crime did not match Brown. (Id. ¶ 8). In fact, no forensic evidence linked Brown to the crime. (Id. ¶ 9). Brown's fingerprints were not on any of the guns, and fingerprints and footprints at the scene were too smudged or insufficiently clear to produce impressions for comparison. (Id.) Moreover, the second suspect was never identified. (Id. ¶ 10). Brown appealed his conviction, but his appeals were denied. (Id. ¶ 11).

In 2006, Brown filed a pro se Post Conviction Relief Act ("PCRA") Petition. (Id. ¶ 24). Chardo represented the Commonwealth in those proceedings. (Id.) In early June 2006, Chardo received a preliminary DNA analysis report implicating an individual, R.R., in the burglary/robbery for which Brown was convicted. (Id. ¶¶ 17, 20). The report indicated that the DNA on the blue bandana matched R.R. and that R.R. could not be excluded as a contributor to the DNA on the glove. (Id. ¶ 19). Chardo claims that he mailed a copy of the DNA report to Brown, but Brown contends that he never received it and had no knowledge of its existence. (Id. ¶¶ 18, 23). When Chardo received the DNA report in June of 2006, he sent a detective to interview R.R., who was incarcerated at the time. (Id. ¶ 20). The detective produced an investigative report, which was not provided to Brown. (Id. ¶ 21).

According to the complaint, Chardo failed to advise the PCRA court of the DNA evidence implicating R.R. (Id. ¶ 25). In addition, Brown allegedly encountered Chardo at the courthouse approximately two months after Chardo had received the DNA report. (Id. ¶ 26). Brown reasserted his innocence to Chardo and inquired on the status of his case. (Id.) Chardo purportedly responded that the case was closed. (Id. ¶ 26).

During the pendency of Brown's PCRA petition, Brown had an altercation with two correctional officers. (Id. ¶ 28). As a result, Chardo charged Brown with two counts of aggravated assault. (Id. ¶ 29). One of the officers supposedly informed Brown that he was pressing charges against Brown because Chardo encouraged it. (Id. ¶ 28). Brown contends that Chardo induced him to plead guilty to the aggravated assault charges by suggesting a strong likelihood of a significant sentence because Brown was a convicted felon. (Id. ¶ 31). On August 16, 2006, Brown pled guilty and was sentenced to 36 to 120 months imprisonment, to run concurrently with his burglary/robbery sentence. (Id. ¶ 32).

In the summer of 2009, while incarcerated at SCI Fayette, an inmate informed Brown that he overheard a conversation in the prison yard between "Dutt" and another unidentified prisoner. (Id. ¶ 12). "Dutt" purportedly informed the unidentified prisoner about a 2007 conversation between "Dutt" and another inmate named "Trizz." (Id. ¶ 13). During this conversation between "Dutt" and "Trizz," "Trizz" allegedly stated that he and an individual named "Scar" robbed and assaulted an individual named "Conehead" and that someone else was convicted of the crime. (Id.) "Trizz" told "Dutt" that as he and "Scar" exited the residence, "Conehead" fired at them, and that in the course of his retreat, "Trizz" dropped his blue bandana and a glove. (Id.)

Counsel for Brown investigated the story, obtained a sworn statement from "Dutt" attesting to "Trizz's" confession and identified "Trizz" as R.R. (Id. ¶ 14). Counsel discovered that R.R. lived near the victim, had numerous drug and gun convictions, and was not incarcerated at the time of the crime for which Brown was convicted. (Id.) Thereafter, counsel for Brown filed a PCRA petition pursuant to 42 PA CONS. STAT. § 9545(b)(1)(ii), alleging new exculpatory evidence. (Id. ¶ 15). Brown also sought DNA testing of R.R., the newly identified suspect. (Id. ¶ 16). Chardo, who prosecuted Brown in 2001 for the burglary and represented the Commonwealth in Brown's first PCRA petition, also represented the Commonwealth in the newly filed petition. (Id. ¶¶ 6, 15, 24).

On April 9, 2010, Chardo advised Brown's counsel that he submitted a CODIS*fn2 request for R.R.'s profile and received from the laboratory a copy of the June 8, 2006, preliminary DNA analysis report. (Id. ¶ 17). Chardo subsequently claimed that he forgot that he received the DNA report in June of 2006 and had previously dispatched a detective to interview R.R. (Id. ¶ 20).*fn3 Chardo also asserted that he mailed a copy of the DNA report to Brown in 2006. (Id. ¶ 23).

After receipt of the DNA evidence, Brown filed an amended PCRA petition. (Id. at 35). Chardo was unable to put forth any physical evidence that he mailed the DNA report to Brown. Consequently, the Commonwealth stipulated to the timeliness of the newly discovered DNA evidence at the PCRA hearing. (Id. ¶ 23). The PCRA court held a hearing in June of 2010, during which it received the DNA evidence, as well as confirmation from the Department of Corrections that the conversation between "Dutt" and "Trizz" could have occurred when and where the witness reported it to have happened. (Id. ¶ 36). Chardo then agreed that Brown was entitled to a new trial and moved to nolle pros the charges. (Id.) The Honorable Lawrence Clark of the Court of Common Pleas for Dauphin County entered an order vacating the conviction and nolle prossing the charges. (Id. ¶ 37). However, Brown remained incarcerated on the 2006 assault conviction. (Id. ¶ 40).

Brown subsequently filed a pro se PCRA petition alleging that the DNA evidence was newly discovered evidence with respect to his guilty plea on the 2006 aggravated assault charge, and that his plea was not knowing and voluntary. (Id. ¶ 38). The PCRA court has issued a notice of intent to dismiss the petition as untimely or otherwise procedurally defaulted. (Id. ¶ 39).

On April 6, 2011, Brown filed the instant civil rights action. (Doc. 1). In Count I, Brown asserts a claim of false imprisonment under the Fourth and Fourteenth Amendments of the U.S. Constitution, the Pennsylvania Constitution, and Pennsylvania tort law. (Id. ¶¶ 46-51). In Count II, Brown asserts a malicious abuse of process claim under the U.S. and Pennsylvania Constitutions and Pennsylvania tort law. (Id. ¶¶ 52-56). Finally, in Count III, Brown asserts a claim for intentional infliction of emotional distress under Pennsylvania law. (Id. ¶¶ 57-60). Brown avers that as a result of Chardo's conduct, Brown has been denied the comfort and companionship of his family and has been forced to endure the hardships of prison life. (Id. ¶¶ 41, 42). Brown claims that as a further result of Chardo's conduct he suffers from severe emotional distress, depression, paranoia, suicidal ideation, nightmares, anxiety, and socialization and communication problems, as well as the physical injuries of weight loss, headaches, chest pains, diminished hearing and vision, rashes and insomnia. (Id. ¶¶ 43, 44). Brown seeks compensatory and punitive damages, plus attorney's fees on all counts.

On June 13, 2011, Chardo filed a motion to dismiss the complaint. (Doc. 10). Chardo contends that Brown's claims against him are barred by absolute prosecutorial immunity. (Id. ¶ 21). Chardo also asserts that Brown's challenge to the lawfulness of his guilty plea on the aggravated assault charges are barred by Heck v. Humphrey, 512 U.S. 447 (1994). (Id. ¶ 22). Alternatively, Chardo argues that Brown fails to state a cognizable malicious abuse of process claim, and fails to assert any cognizable claim for monetary damages under the Pennsylvania Constitution. (Id. ¶¶ 23, 24). Finally, Chardo asserts that Brown's state law claims are barred by the application of immunity afforded to high public officials under Pennsylvania law. (Id. ¶ 25). Brown filed an opposition brief on June 13, 2011, (Doc. 13) and Chardo filed a reply on June 27, 2011. (Doc. 16). The motion has been fully briefed and is ripe for disposition.

II. Standard of Review

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of complaints that fail to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). When ruling on a motion to dismiss under Rule 12(b)(6), the court must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Gelman v. State Farm Mut. Auto. Ins. Co., 583 F.3d 187, 190 (3d Cir. 2009) (quoting Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)); see also Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007) (quoting Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005)). Although the court is generally limited in its review to the facts contained in the complaint, it "may also consider matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994); see also In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).

Federal notice and pleading rules require the complaint to provide "the defendant notice of what the . . . claim is and the grounds upon which it rests." Phillips, 515 F.3d at 232 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To test the sufficiency of the complaint in the face of a Rule 12(b)(6) motion, the court must conduct a three-step inquiry. See Santiago v. Warminster Twp., 629 F.3d 121, 130-31 (3d Cir. 2010). In the first step, "the court must 'tak[e] note of the elements a plaintiff must plead to state a claim.'" Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1947 (2009)). Next, the factual and legal elements of a claim should be separated; well-pleaded facts must be accepted as true, while mere legal conclusions may be disregarded. Id.; see also Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). Once the well-pleaded factual allegations have been isolated, the court must determine whether they are sufficient to show a "plausible claim for relief." Ashcroft v. Iqbal, 556U.S. 662, 129 S. Ct. at 1950 (citing Twombly, 550 U.S. at 556); Twombly, 550 U.S. at 555 (requiring plaintiffs to allege facts sufficient to "raise a right to relief above the speculative level"). 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, 556 U.S. 662, 129 S. Ct. at 1949. When the complaint fails to present a prima facie case of liability, however, courts should generally grant leave to amend before dismissing a complaint. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000).

III. Discussion

A. Prosecutorial Immunity

The court begins its analysis with Chardo's assertion of absolute prosecutorial immunity. "A prosecutor bears the 'heavy burden' of establishing entitlement to absolute immunity." Odd v. Malone, 538 F.3d 202, 207 (3d Cir. 2008) (citing Light v. Haws, 472 F.3d 74, 80-81 (3d Cir. 2007) (quoting Forsyth v. Kleindienst, 599 F.2d 1203, 1212 (3d Cir. 1979))); see also Burns v. Reed, 500 U.S. 478, 486 (1991). Indeed, the Third Circuit instructs the court to start with the presumption that qualified, not absolute, immunity is appropriate. Odd, 538 F.3d at 207-08.

The defendant's status as a prosecutor does not in and of itself entitle him to prosecutorial immunity. The court must focus upon the nature of the function performed by the prosecutor, not the identity of the actor. See Kalina v. Fletcher, 522 U.S. 118, 127 (1997). A prosecutor is entitled to absolute immunity when he is functioning as the state's advocate in performing the questioned actions. Yarris v. County of Delaware, 465 F.3d 129, 136 (3d Cir. 2006). That is, prosecutors are absolutely immune for actions performed in a judicial or quasi-judicial role. Odd, 538 F.3d at 208; Yarris, 465 F.3d at 135; Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976). Prosecutorial immunity extends to "acts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State." Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993). Allegations that the prosecutor acted willfully or in bad faith, knowing his conduct to be unauthorized, will not strip the prosecutor of absolute immunity unless a reasonable prosecutor would recognize the conduct as 'clearly outside his jurisdiction' in representing the state. See Ernst v. Child and Youth Servs. Of Chester Cnty., 108 F.3d 486, 502 (3d Cir. 1997) (subjective state of mind irrelevant to absolute immunity and allegations of bad faith will not strip a prosecutor of absolute immunity) (quoting Bauers v. Heisel, 361 F.2d 581, 591 (3d Cir. 1966)); Imbler, 424 U.S. at 427 (admitting that prosecutorial immunity leaves wronged defendant without civil remedy for a prosecutor's "malicious and dishonest" acts).

Absolute immunity, however, does not cover administrative duties or investigatory functions of the prosecutor not related to initiating or conducting judicial proceedings. See Odd, 538 F.3d at 208. When the behavior of the prosecutor 'falls completely outside the prosecutorial role,' for example, a prosecutor's deliberate destruction of exculpatory evidence, absolute immunity is unavailable. Giuffre v. Bissell, 31 F.3d 1241, 1251 (3d Cir. 1994) (quoting Kulwicki v. Dawson, 969 F.2d 1454, 1463 (3d Cir. 1992)); Odd, 538 F.3d at 211; Yarris, 465 F.3d at 137 (finding prosecutors absolutely immune for withholding exculpatory evidence but not absolutely immune for the deliberate destruction of exculpatory evidence, and stating that ...


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