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Jose Fremonde Xenos v. John Doe I

September 27, 2012


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


Jose Fremonde Xenos, proceeding pro se, brings a § 1983 claim against Deputy Sheriff John Doe I, Deputy Sheriff John Doe II, Sergeant Michael Weston, Sheriff Jeffrey Hawbecker, the Northampton County Sheriff Department ("Sheriff Department"), and the County of Northampton. Currently before the Court is a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) filed by Sergeant Weston, Sheriff Hawbecker, the Sheriff Department, and the County of Northampton. For the reasons set forth below, Defendants' motion is granted. In addition, because the facts as alleged fail to state a claim against John Doe I or John Doe II, these claims are also dismissed.


Xenos's claims arise from three allegedly unlawful arrests lacking probable cause. On August 16, 2007 and prior to these arrests, 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. (Defs.' Mot. to Dismiss Ex. B [Court of Common Pleas Docket] at 3.) 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 August 28, 2008, Judge Edward Smith issued a bench warrant for Xenos on a parole violation. (Court of Common Pleas Docket at 19.) On September 2, 2008, the bench warrant was served on Xenos. (Id.) Xenos alleges that John Doe I and John Doe II arrested him at his home "on a fake county parole technical violation fabricated by Paul Singley, Northampton County Probation Officer."*fn1 (Compl. at 2.) On September 4, 2008, following a Gagnon I hearing, Xenos was released, with a visit from his probation officer to be scheduled and subsequent violations to result in a bench warrant. (Court of Common Pleas Docket at 17.)

The second arrest occurred on March 3, 2009, when Sergeant Michael Weston arrested Xenos pursuant to a detainer issued by Probation Officer Singley for a probation violation. (Defs.' Mot. to Dismiss Ex. D [Detainer].) On March 5, 2009, Probation Officer Singley filed a petition for review of parole, 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." (Defs.' Mot. to Dismiss Ex. E [Pet. for Review of Parole].) On the same day, the court held a Gagnon I hearing and ordered a psychiatric evaluation of Xenos. (Court of Common Pleas Docket at 19.) On March 20, 2009, the court held a Gagnon II hearing and ordered Xenos transferred to a mental hospital in order to restore competency to proceed with the prosecution. (Id. at 20.) On September 11, 2009, Xenos was released from the mental hospital.

The third arrest occurred on September 18, 2009, when Probation Officer Singley submitted an order to arrest and detain to Judge Smith that states that Xenos violated the conditions of his supervision by failing to appear as directed and by failing to contact the probation department; Judge Smith issued an order that authorized Xenos's arrest the same day. (See Compl. Ex. A [Order to Arrest and Detain].) John Doe II arrested Xenos pursuant to this order on September 21, 2009. (Compl. at 4-5.) The order was vacated the following day, and Xenos was released from prison. (Court of Common Pleas Docket at 21-22.)


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.

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.

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).


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, 441 F. App'x at 131 (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 ...

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