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Spiker v. Allegheny County Bd. of Probation and Parole

United States District Court, W.D. Pennsylvania

January 30, 2013

Spencer SPIKER, Plaintiff,
v.
ALLEGHENY COUNTY BOARD OF PROBATION AND PAROLE, et al., Defendant.

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Edward A. Olds, Pittsburgh, PA, for Plaintiff.

Bernard M. Schneider, Brucker, Schneider & Porter, Virginia Spencer Scott, Scott Law Office, Andrew F. Szefi, Pittsburgh, PA, for Defendant.

MEMORANDUM OPINION AND ORDER

CONTI, District Judge.

I. Introduction

Plaintiff Spencer Spiker (" Spiker" or " plaintiff" ) filed a second amended complaint

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in this case on May 17, 2011 alleging violations of his civil rights under 42 U.S.C. § 1983 (" § 1983" ) based upon violations of the Fourth and Fourteenth Amendments of the United States Constitution and various tort claims under Pennsylvania law. (ECF No. 108.) Pending before the court are two motions to dismiss the second amended complaint and a motion for leave to file a third amended complaint. The second amended complaint named the following seven individuals as defendants in their individual and official capacities: (1) Jennifer DiGiovanni— Allegheny County Assistant District Attorney (" DiGiovanni" ); (2) Laura Ditka— Allegheny County Deputy District Attorney (" Ditka" and together with DiGiovanni, the " DA defendants" ); (3) Jacquelyn Whittaker, a supervising probation officer with the Allegheny County Adult Probation Office (" Whittaker" ); (4) Sean Kelly— detective with the Allegheny County Police Department (" Kelly" and together with Whittaker, the " county defendants" ); (5) Jack Kearney— Lieutenant with the Allegheny County Sheriff's Office (" Kearney" ); (6) William Mullen— Allegheny County Sheriff (" Mullen" ); and (7) James Rieland— director of Allegheny County Adult Probation (" Rieland" ). ( Id. ¶¶ 3-10.)

Four motions to dismiss the second amended complaint were filed on May 31, 2011, with each defendant taking part in one of those motions. (ECF Nos. 109, 111, 115, 117.) In July 2011, plaintiff filed responses in opposition to each of the motions to dismiss. (ECF Nos. 120, 121, 123, 126.) On August 3, 2011, plaintiff filed a motion for reconsideration asking the court to reconsider its previous decision to dismiss plaintiff's equal protection claims against the DA defendants and for the court to allow plaintiff to file a third amended complaint. (ECF No. 127.) The DA defendants filed a response and brief in opposition to plaintiff's motion for reconsideration on August 23, 2011. (ECF Nos. 132, 133.) Plaintiff filed a reply to the DA defendants' response in opposition on September 30, 2011. (ECF No. 134.) The DA defendants filed a motion to strike plaintiff's reply on the same day. (ECF No. 135.) The parties argued the motions to dismiss the second amended complaint and the motion for reconsideration during a hearing before the court held on October 24, 2011. The court took the matter under advisement and deferred ruling on the motions until a later date.

On March 19, 2012, plaintiff filed a motion for leave to file third amended complaint, but did not attach a proposed third amended complaint to the motion. (ECF No. 147.) On April 10, 2012, the court ordered plaintiff to supplement the motion for leave to amend by attaching the proposed third amended complaint. On April 18, 2012, plaintiff supplemented the motion for leave to amend and attached a proposed third amended complaint to the motion. (ECF No. 156.) Plaintiff and Riel and reached a settlement in April 2012, and Rieland and Mullen are not named as defendants in the proposed third amended complaint. ( Id. at 3 n. 3.) On April 23, 2012, the court heard the parties' arguments with respect to plaintiff's motion for leave to file a third amended complaint. The court took the matter under advisement and deferred ruling on that motion until a later date. Rieland's motion to dismiss the second amended complaint (ECF No. 115), Mullen's and Kearney's motion to dismiss the second amended complaint (ECF No. 117), and plaintiff's motion for reconsideration (ECF No. 127) were denied as moot in light of plaintiff's pending motion for leave to file a third amended complaint in which Riel and, Mullen, and Kearney are not named defendants. On January 14, 2011, plaintiff informed the court that he filed a petition for bankruptcy relief and sought a stay in this court in order for the bankruptcy

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court to approve the retention of plaintiff's counsel in this case. (ECF No. 98.) On November 28, 2012, plaintiff advised this court that the bankruptcy court approved the retention of plaintiff's counsel in this case. (ECF No. 184.) The DA defendants' and the county defendants' motions to dismiss the second amended complaint and plaintiff's motion for leave to file a third amended complaint are now ripe to be decided by the court.

II. Factual Allegations in the Second Amended Complaint

On May 27, 2009, plaintiff pleaded guilty in state court to indecent assault against a person less than thirteen years of age, in violation of 18 PA. CONS.STAT. § 3126(a)(7), and to endangering the welfare of children, in violation of 18 PA. CONS.STAT. § 4304(a)(1). (ECF No. 108 ¶ 11.) Plaintiff was sentenced to five years probation as well as a one-year term of intermediate punishment, and was required to register as a sexual offender pursuant to 42 PA. CONS.STAT. § 9795.1. ( Id. ) After sentencing on May 27, 2009, plaintiff reported to the Allegheny County Board of Probation and Parole Intake Office (the " Probation Intake Office" ). Sherri Dicicco (" Dicicco" ), a Probation Intake Office employee, processed plaintiff's paperwork. ( Id. ¶¶ 11-13.) Dicicco never informed plaintiff about the registration requirements and did not collect and forward his information to the Pennsylvania State Police (the " state police" ), ( Id. ¶ 13), which plaintiff asserts was required by 42 PA. CONS.STAT. § 9795.2(a)(4)(i). Section 9795.2(a)(4)(i) provides:

Where the offender or sexually violent predator was granted parole by the Pennsylvania Board of Probation and Parole or the court or is sentenced to probation or intermediate punishment, the board or county office of probation and parole shall collect registration information from the offender or sexually violent predator and forward that registration information to the Pennsylvania State Police.

42 PA. CONS.STAT. § 9795.2(a)(4)(i). Dicicco did not know that probation personnel were required by law to inform sexual offenders of their reporting requirements and to collect registration information from the offenders to forward to the state police for entry into the sexual offender registry. (ECF No. 108 ¶ 13.) Dicicco informed plaintiff that there were no standard policies or procedures for processing in the Probation Intake Office. (ECF Nos. 108 ¶ 13, 108-1.) Plaintiff avers that Rieland, director of Allegheny County Adult Probation, did not train his employees and enforce rules and policies which would have ensured Dicicco's compliance with section 9795.2(a)(4)(i). (ECF No. 108 ¶¶ 14-15.) Plaintiff contends this failure constituted deliberate indifference to the rights of sexual offenders because the failure to register constitutes a separate and serious crime. ( Id. at ¶ 15.)

On June 18, 2009, DiGiovanni instructed Kelly to verify plaintiff's compliance with the sexual offender registration requirements. (ECF No. 108 ¶ 16.) According to plaintiff, DiGiovanni acted beyond the scope of her role as a prosecutor in instructing Kelly to investigate plaintiff's compliance with the registration requirements of sexual offenders because, given the totality of the circumstances, DiGiovanni did not have probable cause or reasonable suspicion to believe plaintiff intentionally, knowingly, or recklessly failed to comply such requirements. ( Id. ¶ 18.) Plaintiff alleges DiGiovanni was " fed false information about Spiker by a mutual acquaintance ... which prompted her to irrationally and arbitrarily view Spiker differently from other defendants she had prosecuted." ( Id. ¶ 93.) According to plaintiff, it was this " personal animus which prompted [DiGiovanni] to start what

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was in essence a unique investigation against Spiker, to over-see aspects of the investigation, such as insuring his name was published as a highly wanted fugitive and insuring that a detainer was imposed against him." ( Id. ) Plaintiff avers that as a lawyer, DiGiovanni should have known that Pennsylvania law requires the county probation office— not the sexual offender— to submit initial registration information to the state police. ( Id. ¶ 17.) Plaintiff avers DiGiovanni was aware that Dr. Paul Bernstein performed an evaluation of plaintiff and that plaintiff did not present the personality type of a sex offender. Plaintiff alleges DiGiovanni knew the following:

a. Plaintiff was a thirteen-year veteran Army Officer who would have inherently followed all instruction provided without fail;
b. That Plaintiff was attending daily AA meetings;
c. That Plaintiff was attending intensive therapy sessions at the Western Psychiatric Institute and Clinic for depression and alcoholism with positive reports; and
d. That the sex offender registration laws are not intended to be punitive in nature— the legislative intent was purely to safeguard the interest of public safety and not to further punish the registrants.

(ECF No. 108 ¶ 18.)

Kelly called the state police pursuant to DiGiovanni's instruction and determined plaintiff was not registered as a sex offender. (ECF No. 108 ¶ 19.) According to plaintiff, this information did not provide DiGiovanni or Kelly probable cause that plaintiff committed a crime because it was not evidence plaintiff intentionally, knowingly, or recklessly committed the crime, and DiGiovanni knew the Probation Intake Office had the initial burden of forwarding the plaintiff's information to the state police in order to register plaintiff as a sexual offender. ( Id. ) Plaintiff contends DiGiovanni should have been aware that a mistake in the registration process occurred and that plaintiff had not committed a crime. ( Id. ) According to plaintiff, monitoring individuals subject to sex offender registration is the responsibility of the state police and is outside the jurisdictional duties and responsibilities of the district attorney's office. ( Id. ¶ 21.)

On June 25, 2009, Kelly applied for and received a warrant for plaintiff's arrest for failure to register as a sexual offender. (ECF No. 108 ¶ 20.) On July 1, 2009, twenty-three days after the entry of plaintiff's guilty plea and his sentencing, plaintiff was arrested (sometimes referred to as the " first arrest" ) for failure to register as a sexual offender by the West Homestead Police acting on an arrest warrant from the Allegheny County Police Department. ( Id. ¶¶ 21, 23.) Plaintiff was released on his own recognizance on a non-monetary bond with instructions to ensure compliance with sexual offender registration requirements by July 8, 2008. ( Id. ¶¶ 23, 27.) Plaintiff provided the state police with all the necessary registration information on the evening of July 1, 2009. ( Id. at 27.) Plaintiff avers Ditka knew of and encouraged DiGiovanni to take the steps causing plaintiff's arrest on July 1, 2009, and therefore, was not acting in her capacity as a prosecutor. (ECF No. 108 ¶ 58.) Plaintiff avers Ditka knew it was responsibility of the Allegheny County Probation Office to make the initial registration of plaintiff and also knew the Allegheny County Adult Probation Office failed to train its employees and adopt polices ensuring such registration. According to plaintiff, Ditka knew or should have known that plaintiff was not in violation of the terms of his probation and had not violated section 9795.2(a)(4)(i).

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On July 2, 2009, plaintiff was arrested (sometimes referred to as the " second arrest" ) for violating his probation because of his arrest on July 1, 2009 for failing to register as a sexual offender. (ECF No. 108 ¶ 28.) Plaintiff contends he did not know an arrest was a violation of his probation because at time of his second arrest he had not been assigned a probation officer or advised about the rules of probation. ( Id. ¶ 29.) Plaintiff asserts the second arrest was initiated by Whittaker, a supervisor of the Allegheny County Adult Probation Office, who sought a bench warrant for plaintiff's arrest at the direction of DiGiovanni and according to Allegheny County Adult Probation Office policies. ( Id. ¶¶ 5, 30.) Several days after plaintiff's second arrest, Whittaker issued a detainer which caused plaintiff to remain in custody for 320 days until his trial and subsequent acquittal. ( Id. ¶ 32.) According to plaintiff, " a detainer is typically issued when a defendant is a chronic or repeat violator of probation terms, a threat to public safety or a likely flight risk from justice." ( Id. ¶ 33.) Plaintiff avers he never violated his probation and was not a flight risk or threat to public safety, and that Whitaker knew he reported to the probation office after his sentencing. ( Id. ) Following the issuance of the detainer, plaintiff and his family members sent multiple letters to DiGiovanni, Ditka, and Whittaker requesting the prosecution be stopped and the detainer lifted. ( Id. ¶ 36.) DiGiovanni, Ditka, and Whittaker did not respond or adhere to these requests. ( Id. ) On May 13, 2010, plaintiff was acquitted on the charge of failing to comply with the registration requirements of 42 PA. CONS.STAT. § 9795.1. ( Id. ¶ 52).

Plaintiff avers his name was placed on the Allegheny County Sheriff's Most Wanted Fugitive List at the direction of DiGiovanni. Plaintiff claims publically available records indicate plaintiff is the only individual that has been listed on the Allegheny County Sheriff's most Wanted Fugitive List under similar circumstances because " [a]ll other individuals had otherwise previously absconded or had overtly eluded capture." (ECF No. 108 ¶ 50.)

Plaintiff alleges that he suffered the loss of a high-level appointment at a prominent university and future employment opportunities commensurate with his experience as a result of his arrests and subsequent detention. Plaintiff is no longer able to support his family, and has lost his family home, vehicle, free college tuition benefits, and health insurance. Plaintiff alleges that he has suffered physically and emotionally from the stress induced by his incarceration. (ECF No. 108 ¶ 53.)

III. Factual Allegations in the Proposed Third Amended Complaint

In the proposed third amended complaint, plaintiff repeats the allegations of the second amended complaint and in addition avers the Allegheny County Adult Probation Office had a policy entitled " Megan's Law Registration," which mandates all probation employees be informed and equipped to undertake the registration of sexual offenders. (ECF No. 156-1 ¶ 11.) Plaintiff attached two different policies to the proposed third amended complaint. ( Id. at 24, Ex. 1.) The first policy has an effective date of April 17, 2006. ( Id. ) The policy provides: " most offenders are registered at Intake or by Probation Officers supervising sex offenders," and " when Intake moves to the Courthouse, Intake personnel will process offenders received from court." ( Id. ) The policy refers to a " Megan's Law packet," which describes the " procedures to be used with each registration," and includes instructions to take a " digital picture ... of the offender." ( Id. ) According to plaintiff, this policy shows that Allegheny County Adult Probation was aware of its statutory charge and was

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equipped to register sex offenders for Megan's Law purposes. (ECF No. 156 ¶ 10.)

The second policy attached to the proposed third amended complaint has an effective date of October 9, 2008. (ECF No. 156-1 at 25, Ex. 1.) This policy provides, among other things:

On all Megan's Law cases, it is the probation officer's responsibility to check the Megan's Law website at http:// www. pameganslaw. state. pa. us/ to verify the current registration status and addresses for residence, employment, and school. If the offender who is subject to the Megan's Law requirements is not registered, then the currently assigned probation officer is to register the offender by following the above stated procedures. Furthermore, it is imperative that probation officers ensure that all Megan's Law offenders have the correct current address listed in APCMS and are identified in the database as Megan's Law cases [sic]

( Id. ) According to plaintiff, " this language suggests that the adult probation office had a practice of registering offenders who somehow slipped through the cracks and had failed to register at intake." (ECF No. 156-1 ¶ 13.)

Plaintiff avers Kelly, as a Megan's Law Compliance Officer, knew or should have known about the policy of the Allegheny County Probation Office to register sex offenders and that Pennsylvania law requires the county probation office, not the sexual offender, to collect and submit initial registration information to the state police. (ECF No. 156-1 ¶ 17.) Plaintiff contends Kelly deliberately and recklessly omitted information about the policy in his affidavit of probable cause used to secure the arrest warrant. ( Id. ¶ 18.)

According to plaintiff, Whittaker knew about the Megan's Law registration policy but " deliberately and recklessly omitted important and vital information" when she sought the bench warrant for plaintiff's arrest. (ECF No. 156-1 ¶ 28.) Plaintiff avers Whittaker failed to disclose that plaintiff had reported to probation intake and that Dicicco failed to follow the Allegheny County Adult Probation Office policy. ( Id. ) Plaintiff avers that when Whittaker sought the detainer, she failed to inform the judge that when sexual offenders are not registered, it is the policy of the Allegheny County Probation Office to register, not incarcerate, the offenders. ( Id. ) Plaintiff contends the " sheer speed at which the Plaintiff was re-arrested after being released is atypical of how the normal process for revoking an individual's probation works, and shows that unwarranted and unfounded special interest and treatment was given to the Plaintiff." ( Id. ¶ 29.)

IV. Standard of Review

A motion to dismiss tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir.1993). In deciding a motion to dismiss, the court is not opining on whether the plaintiff will be likely to prevail on the merits; rather, when considering a motion to dismiss, the court accepts as true all well-pled factual allegations in the complaint and views them in a light most favorable to the plaintiff. U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir.2002). While a complaint does not need detailed factual allegations to survive a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss, a complaint must provide more than labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A " formulaic recitation of the elements of a cause of action will not do." Id. (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). " Factual allegations must be enough to raise a right to relief above the speculative level" and " sufficient

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to state a claim for relief that is plausible on its face." Id. " 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." Ashcroft v. Iqbal, 556 U.S. 662, 667, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955).

The plausibility standard is not akin to a " probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully.... Where a complaint pleads facts that are " merely consistent with" a defendant's liability, it " stops short of the line between possibility and plausibility of ‘ entitlement to relief.’ " Iqbal, 556 U.S. at 667, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955) (internal citations omitted). Two working principles underlie Twombly. Iqbal, 556 U.S. at 667, 129 S.Ct. 1937. First, with respect to mere conclusory statements, a court need not accept as true all the allegations contained in a complaint. " Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955). Second, to survive a motion to dismiss, a claim must state a plausible claim for relief. Id. at 679, 129 S.Ct. 1937. " Determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. " But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged— but it has not ‘ show[n]— that the pleader is entitled to relief.’ " Id. (quoting FED. R. CIV. P. 8(a)(2)). A court considering a motion to dismiss may begin by identifying pleadings that are not entitled to the assumption of truth because they are mere conclusions.

While legal conclusions can provide the framework of the complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.

Id.

The court may grant a plaintiff leave to amend a complaint under Federal Rule of Civil Procedure 15, which provides: " The court should freely give leave [to amend] when justice so requires." FED. R. CIV. P. 15. Rule 15, however, " does not permit amendment when it would be futile. Futility " ‘ means that the complaint, as amended, would fail to state a claim upon which relief could be granted.’ " " Kenny v. United States, No. 10-4432, 2012 WL 2945683, at *4 (3d Cir. July 19, 2012) (citing Burtch v. Milberg Factors, Inc., 662 F.3d 212, 231 (3d Cir.2011)). " The standard for deciding whether claims are futile for the purpose of granting complaint is the same as a motion to dismiss." Markert v. PNC Financial Servs. Group, Inc., 828 F.Supp.2d 765, 771 (E.D.Pa.2011). " [I]f the court determines that plaintiff has had multiple opportunities to state a claim but has failed to do so, leave to amend may be denied." See 6 CHARLES A. WRIGHT, ARTHUS R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 1487 (2d ed. 2010).

Based upon the foregoing, the court will first address defendants' motions to dismiss the second amended complaint. If the court finds reason to dismiss any of plaintiff's claims in the second amended complaint, the court will determine whether the factual allegations set forth in the proposed third amended complaint cure the defects warranting dismissal of a claim in the second amended complaint. If the proposed third amended complaint does

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not cure the defects of a claim set forth in the second amended complaint, the amendment will be futile, and the claim will be dismissed without leave to amend. If the third amended complaint cures the defects and sets forth a plausible claim for relief, the court will grant plaintiff leave to amend to file a third amended complaint to include that claim.

V. Discussion

" Title 42 U.S.C. § 1983 is not a source of substantive rights but a vehicle for vindicating rights conferred by the U.S. Constitution or by federal statute." DiBella v. Beachwood, 407 F.3d 599, 601 (3d Cir.2005). " To make a prima facie case under § 1983, the plaintiff must demonstrate that a person acting under color of law deprived him of a federal right." See Groman v. Manalapan, 47 F.3d 628, 633 (3d Cir.1995). Section 1983 provides in part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United State or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceedings for redress.

42 U.S.C. § 1983. This remedial statute does not create substantive rights. Maher v. Gagne, 448 U.S. 122, 129 n. 11, 100 S.Ct. 2570, 65 L.Ed.2d 653 (1980). " A plaintiff cannot prevail in an action brought under § 1983 without establishing an underlying violation of a federal constitutional or statutory right." Ickes v. Borough of Bedford, 807 F.Supp.2d 306, 315 (W.D.Pa.2011). In the second and proposed third amended complaints, Spiker alleges defendants violated his ...


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