REPORT AND RECOMMENDATION Re: ECF No. 10
MAUREEN P. KELLY, Magistrate Judge.
It is respectfully recommended that the Motion to Dismiss filed on behalf of Defendant Daniel Sullivan [ECF No. 10] be granted as to all federal claims asserted against Defendant Sullivan but denied as to all state law claims, in light of Defendant Sullivan's failure to support his Motion to Dismiss these claims with any legal authority or analysis.
A. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Kevin Roberts ("Plaintiff") filed this pro se civil rights action against Daniel Sullivan, a City of Pittsburgh Police Officer ("Sullivan"), Allegheny County, and Rich Fitzgerald, the Allegheny County Executive,  alleging violations of his rights under the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, as well as the violation of his rights under the Pennsylvania Constitution. [ECF No. 5]. Plaintiff's Complaint alleges that his rights were violated when he was arrested without probable cause and then prosecuted and convicted for theft and unlawful possession of a firearm, when a reasonable investigation would have revealed that he could not have committed the crime. Sullivan has filed a Motion to Dismiss, contending that the facts alleged in the Complaint, and as discerned through indisputably authentic documents attached to the Complaint and filed on the public docket of the underlying criminal proceedings, render each claim asserted against him unsustainable as a matter of law.
As indicated in the materials attached to Plaintiff's Complaint, Sullivan is a City of Pittsburgh Police Officer. On the evening of August 29, 2006, Sullivan was called to the Zone 5 Police Station at the request of his sergeant to investigate a theft. Upon arriving at the station, he met with Nathan Hubbard, who was visibly distraught. Sullivan knew Mr. Hubbard, an elderly gentleman from the Homewood section of the City where Sullivan routinely patrolled. Sullivan and fellow officers frequently would check on Mr. Hubbard because of his age and the violent neighborhood in which he resided. [ECF No. 5-2, pp. 28-30, 70, 79-80].
Mr. Hubbard reported that Plaintiff approached him and asked for a ride to Kelly Street. Mr. Hubbard had known Plaintiff since he was a child, and so Mr. Hubbard agreed to give him a ride. Mr. Hubbard routinely kept an unloaded.22 caliber gun on the front seat of his truck for protection. Mr. Hubbard reported that after arriving at his destination, Plaintiff reached over to the front seat of the truck with a bag in his hand and slid the gun under the bag. Plaintiff then left the truck, taking the gun and bag with him. Mr. Hubbard yelled at Plaintiff to return the gun, but Plaintiff ran off. [ECF No. 5-2, p. 18]. Mr. Hubbard immediately drove to the Zone 5 police station to report the theft.
Mr. Hubbard identified Plaintiff by name, as well as the Kelly Street address where he drove Plaintiff. After interviewing Mr. Hubbard, Defendant Sullivan went to the Kelly Street address and spoke with Plaintiff's brother to confirm Plaintiff's identity and to ascertain his location. Plaintiff's brother confirmed his relationship with Plaintiff and advised Sullivan that Plaintiff was homeless and did not reside with him. [ECF No. 5-2, pp. 30-32]. Sullivan then searched the Pennsylvania criminal database and learned that Plaintiff was a convicted felon and not eligible to possess a firearm under the Pennsylvania Uniform Firearms Act. Based upon the information received from Mr. Hubbard and his investigation, Sullivan completed a Probable Cause Affidavit in support of a criminal complaint, charging Plaintiff with theft and unlawful possession of a firearm. A warrant was then issued for Plaintiff's arrest. [ECF No. 5-2 pp. 3-15].
Three days later, on September 2, 2006, Sullivan responded to a 911 call at Mr. Hubbard's home, reporting that Plaintiff was on the property. Plaintiff was found hiding in an adjacent wooded area and placed under arrest. Plaintiff alleges that he denied stealing Mr. Hubbard's gun, but was arrested anyway.
On September 6, 2006, Russell Poindexter ("Poindexter") was arrested for two counts of unlawful possession of a firearm, two counts of possession of a firearm without a license, one count of receiving stolen property, and one count of possession of marijuana. In the course of his arrest, it was discovered that one of the weapons in Poindexter's possession was the same weapon which had been stolen from Mr. Hubbard. [ECF No. 5-2, pp. 98-100].
Plaintiff's preliminary hearing was conducted on September 12, 2006. Mr. Hubbard testified at the hearing as to the events of August 29, 2006. He identified Plaintiff as the individual who grabbed his.22-caliber gun from the front seat of his truck. Mr. Hubbard also explained his long term relationship with the Plaintiff. Defendant Sullivan testified to the facts set forth in the criminal complaint, including his interviews with Mr. Hubbard and Plaintiff's brother, as well as his computer search for Plaintiff's criminal record. Sullivan also testified as to the facts surrounding Plaintiff's subsequent arrest. Plaintiff's attorney attempted to ask Sullivan if he found the gun on or near the Plaintiff on the evening of Plaintiff's arrest. Before Sullivan could answer, the Assistant District Attorney objected that the question was beyond the scope of the direct examination, and the objection was sustained. Plaintiff was held for trial and incarcerated for fourteen months prior to trial. [ECF No. 5-2, pp. 19-29].
Plaintiff's non-jury trial was convened before Judge John A. Zottola in the Criminal Division of the Court of Common Pleas of Allegheny County, Pennsylvania, on November 7 and 8, 2007. [ECF 5-2, pp. 43-92]. Mr. Hubbard testified as to his recollection of events on the night his gun was stolen, again identifying Plaintiff and indicating that Plaintiff ran off with the gun after grabbing it from the front seat of the truck. While Plaintiff has alleged that Mr. Hubbard suffers from dementia, it cannot reasonably be disputed that Mr. Hubbard responded appropriately to questions on direct and cross-examination.
Defendant Sullivan testified as to his history with Mr. Hubbard, the neighborhood Mr. Hubbard lived in, Mr. Hubbard's lack of confusion as to the events surrounding the theft, his own investigation of the theft, and Plaintiff's criminal background. Sullivan also testified that the gun was recovered from Poindexter four days later by Officers Lear and Buford at a traffic stop. [ECF No. 5-2, p. 76-80]. Sullivan assisted in the transportation of another occupant of the vehicle involved in the traffic stop, and took possession of the gun. Sullivan ran the serial number through a state database and determined the gun was the.22 caliber gun owned by Mr. Hubbard. [Id.; and see EFC No. 5-2, p. 94].
Plaintiff testified on his own behalf, confirmed his familiarity with Mr. Hubbard, and denied that he stole Mr. Hubbard's gun. Judge Zottola found Plaintiff guilty of each count charged and on February 4, 2008, sentenced Plaintiff to a period of incarceration of five to ten years. [ECF No. 12-4, p. 4].
Plaintiff and his counsel filed a series of post-sentencing motions and appeals based on information Plaintiff acquired from Poindexter while both men were incarcerated at the State Correctional Institution at Forest, indicating that the gun at issue had been stolen from Mr. Hubbard at least five days before Plaintiff was in Mr. Hubbard's truck. On September 13, 2010, the Commonwealth of Pennsylvania filed a Petition for Nolle Prosse, indicating that it no longer wished to pursue Plaintiff's prosecution for the crimes charged. [ECF No. 5-3, pp. 1-13]. On September 26, 2010, Judge Zottola ordered the case against Plaintiff nolle prossed. [ECF No. 5, p. 5].
Plaintiff commenced this civil rights action on September 10, 2012. With regard to Defendant Sullivan, Plaintiff's Complaint alleges that Sullivan withheld evidence from the district attorney by failing to disclose that the gun was not found in Plaintiff's possession at the time of his arrest, but instead was found in Poindexter's possession four days later. Plaintiff also alleges that Sullivan acted unreasonably by failing to investigate how Poindexter came into possession of the gun and by relying on Mr. Hubbard who was known to suffer from dementia. [ECF No. 5, pp 6-7]. Plaintiff alleges that because the gun was in Poindexter's possession days after Plaintiff's arrest, Plaintiff could not have been guilty of stealing the gun and illegally possessing it. [ECF No. 5, pp. 6-7].
Plaintiff's claims against Defendant Sullivan include Fourth Amendment claims for false arrest and malicious prosecution; a Fourteenth Amendment claim for selective enforcement arising out of Defendant Sullivan's failure to arrest Mr. Hubbard for carrying a weapon without a license; a Sixth Amendment claim that Defendant Sullivan violated Plaintiff's right to a fair trial by concealing evidence that the weapon was located in Mr. Poindexter's possession; Fifth and Fourteenth Amendment substantive and procedural due process claims arising out of Defendant Sullivan's failure to investigate how Poindexter came into possession of Mr. Hubbard's gun; and an Eighth Amendment claim for wrongful conviction and false imprisonment, as well as state law claims.
B. STANDARD OF REVIEW
When deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must read the complaint in the light most favorable to the non-moving party and all well-pleaded, material allegations in the complaint must be taken as true. See Oshiver v. Levin, Fishbein, Sedran & Berman , 38 F.3d 1380, 1384 (3d Cir. 1994). The court is bound to give the plaintiff the benefit of every reasonable inference to be drawn from the "well-pleaded" allegations of the complaint. In addition, the court is not limited to evaluating the complaint alone; it can also consider documents attached to the complaint, matters of public record, indisputably authentic documents, Delaware Nation v. Pennsylvania , 446 F.3d 410, 413 n. 2 (3d Cir. 2006), documents that form the basis of a claim, Lum v. Bank of America , 361 F.3d 217, .221 n. 3 (3d Cir. 2004) (abrogation on other grounds recognized by In re Insurance Brokerage Antitrust Litigation , 618 F.3d 300, 323 n..22 (3d Cir. 2010)), and "documents whose contents are alleged in the complaint and whose authenticity no party questions, " even though they "are not physically attached to the pleading...." Pryor v. Nat'l Collegiate Athletic Ass'n , 288 F.3d 548, 560 (3d Cir. 2002). Upon review, a complaint should be dismissed only if the alleged facts, taken as true, fail to state a claim. See In re Warfarin Sodium Antitrust Litig. , 214 F.3d 395, 397-98 (3d Cir. 2000).
The United States Supreme Court has recognized that "a plaintiff's obligation to provide the grounds' of his entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007). In Twombly, the Supreme Court held that it would not require a "heightened fact pleading of specifics, " but only "enough facts to state a claim to relief that is plausible on its face." Id. at 570.
In 2009, the United States Supreme Court revisited the requirements for surviving a 12(b)(6) motion to dismiss in Ashcroft v. Iqbal , 556 U.S. 662 (2009). In Iqbal, the Supreme Court made clear that "threadbare recitals of the elements of a cause of action, supported by mere conclusory statements [are] not suffic[ient]" to defeat a Rule 12(b)(6) motion to dismiss. Id. at 678. Only "a complaint that states a plausible claim for relief [will] survive a motion to dismiss." Id. at 679.
In Fowler v. UPMC Shadyside , 578 F.3d 203, 210-11 (3d Cir. 2009), the United States Court of Appeals for the Third Circuit provided a two-part test to determine whether a claim survives a motion to dismiss. "First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a plausible claim for relief.' The plaintiff must show the allegations of his or her complaints are plausible. 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.' [This] plausibility' determination will be a context - specific task that requires the reviewing court to draw on its judicial experience and common sense.'" Id . (quoting Iqbal , 556 U.S. at 679).
Several exhibits have been attached to the Plaintiff's Complaint. However, consideration of these exhibits by the Court does not convert Defendant Sullivan's Motion to Dismiss for failure to state a claim into a motion for summary judgment. Pryor v. National Collegiate Athletic Association , 288 F.3d at 560 ("... certain matters outside the body of the complaint itself, such as exhibits attached to the complaint and facts of which the court will take judicial notice, will not trigger the conversion of an Federal Rule of Civil Procedure 12(b)(6) motion to dismiss to an Federal ...