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Jose Fremonde Xenos v. Paul Singley

September 21, 2012


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


Jose Fremonde Xenos, proceeding pro se, brings a § 1983 claim for unlawful intensive probation supervision and unlawful arrest against Probation Officer Paul Singley, Chief Adult Probation Officer Marie Bartosh, the Northampton County Department of Adult Probation, and the County of Northampton.*fn1 Currently before the Court is Defendants' motion to dismiss for failure to state a claim. For the reasons set forth below, Defendants' motion is granted.


On August 16, 2007, Xenos pleaded nolo contendere to felony forgery in the third degree and was sentenced to three to eighteen months incarceration with credit for time served, followed by twenty-four months of probation. (Compl. Ex. A [Sentence Sheet].) Xenos subsequently attempted to withdraw his nolo contendere plea multiple times without success. (Defs.' Mot. to Dismiss Ex. C [State Appellate Docket] at 2-4); see Xenos v. Hawbecker, 441 F. App'x 128, 132 (3d Cir. 2011)

(accepting the validity of Xenos's nolo contendere plea).

On March 3, 2009, Probation Officer Singley issued a detainer for Xenos due to a probation violation. Xenos was arrested at his home by a sheriff who presented him with the detainer and a protection from abuse order issued by Judge Edward Smith. (Compl. II at 5.*fn2 ) On March 5, 2009, Probation Officer Singley filed a petition for review of parole signed by his supervisor, Chief Adult Probation Officer Bartosh, which states that Xenos "violated the technical conditions of his parole supervision by failing to maintain a current and valid address" and by "committing overt acts." (Compl. Ex. B [Petition for Review of Parole].) On that day, the court held a Gagnon I hearing and ordered a psychiatric evaluation of Xenos. (Defs.' Mot. to Dismiss Ex. B [Court of Common Pleas Docket] at 19.) On March 20, 2009, the court held a Gagnon II hearing and ordered that Xenos be transferred to a mental hospital for no more than ninety days in order to restore competency to proceed with the prosecution. (Compl. Ex. C [Order of Court].) On September 11, 2009, Xenos was released from the mental hospital.

On September 18, 2009, Probation Officer Singley submitted to Judge Smith an order to arrest and detain Xenos that states that Xenos violated the conditions of his supervision by failing to appear as directed and failing to contact the Northampton County Adult Probation Department; Judge Smith issued an order that authorized Xenos's arrest the same day. (Compl. Ex. D [Order to Arrest and Detain]; see Court of Common Pleas Docket at 21.) Xenos was arrested on September 21, 2009. (Court of Common Pleas Docket at 1, 21.) The order was vacated the following day. Xenos was released from prison, and the case was closed on November 18, 2009. (Id. at 21-22.)

Defendants filed their motion to dismiss on April 4, 2012. By Order of the Court, Xenos had until July 30, 2012 to respond, but failed to do so. While a motion may be granted as uncontested in the absence of a timely response, see E.D. Pa. R. 7.1(c), because Xenos is a pro se plaintiff, the Court declines to grant Defendants' motion on that basis. See Xenos v. Hawbecker, 441 F. App'x 128, 131 (3d Cir. 2011) (finding dismissal based only on plaintiff's failure to respond inappropriate "unless a plaintiff's failure to oppose a motion can truly be understood to reflect that the motion is unopposed").


In reviewing a motion to dismiss for failure to state a claim, a district court must accept as true all well-pleaded allegations and draw all reasonable inferences in favor of the non-moving party. See Bd. of Trs. of Bricklayers & Allied Craftsman Local 6 of N.J. Welfare Fund v. Wettlin Assocs., 237 F.3d 270, 272 (3d Cir. 2001). "But a court need not credit a complaint's bald assertions or legal conclusions when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (internal quotation marks omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Because Xenos brings this action pro se, the Court will liberally construe his Complaint. See Haines v. Kerner, 404 U.S. 519, 520 (1972); Smith v. Sch. Dist. of Phila., 112 F. Supp. 2d 417, 423 (E.D. Pa. 2000).

"Factual allegations [in a complaint] must be enough to raise a right to relief above the speculative level . . . ." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To survive a motion to dismiss, a complaint must include "enough facts to state a claim to relief that is plausible on its face." Id. at 570. Although the federal rules impose no probability requirement at the pleading stage, a plaintiff must present "enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s]" of a cause of action. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (internal quotation marks omitted). "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. at 678. Simply reciting the elements will not suffice. Id.; see also Phillips, 515 F.3d at 231. When faced with a motion to dismiss for failure to state a claim, courts may consider the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim. Lum v. Bank of Am., 361 F.3d 217, 222 n.3 (3d Cir. 2004). Additionally, a court may consider "court files, records, and letters of official actions or decisions of government agencies and administrative bodies when considering a Rule 12(b)(6) motion." Fed. Election Comm'n v. Arlen Specter '96, 150 F. Supp. 2d 797, 803 n.5 (E.D. Pa. 2001) (internal quotation marks omitted).

The Third Circuit Court of Appeals has directed district courts to conduct a two-part analysis when faced with a Rule 12(b)(6) motion. First, the legal elements and factual allegations of the claim should be separated, with the well-pleaded facts accepted as true but the legal conclusions disregarded. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). Second, the court must make a commonsense determination of whether the facts alleged in the complaint are sufficient to show a plausible claim for relief. Id. at 211. If the court can infer only the mere possibility of misconduct, the complaint must be dismissed because it has alleged-but has failed to show-that the pleader is entitled to relief. Id.


A. Motion to Dismiss Claims Against Probation Officer Singley Xenos's allegations against Probation Officer Singley can be distilled into a claim for unlawful probation ...

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