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Retter v. Douglas

United States District Court, W.D. Pennsylvania

March 13, 2014

DOUGLAS E. RETTER, Plaintiff,
v.
GREGORY K. DOUGLAS, Esquire, TERRY J. MITKO, Esquire, THE COUNTY OF BEAVER, BEAVER COUNTY CIVIL AND CRIMINAL COURTS DIVISIONS, BEAVER COUNTY, PENNSYLVANIA, Defendant.

OPINION

DAVID STEWART CERCONE, District Judge.

Plaintiff commenced this civil rights action pursuant to 42 U.S.C. §§ 1983 and 1985(2) & (3) seeking redress for the alleged violation of his due process and equal protection rights secured by the Fourteenth and Fifth Amendments. Complaint (Doc. No. 3) at ¶¶ 5-8. His claims also are brought pursuant to Title 18 of the Pennsylvania Criminal Code. Id . He contends that his rights were violated pursuant to conspiratorial conduct undertaken by defendants in conjunction with Protection From Abuse and divorce proceedings involving plaintiff's ex-wife. Id. at ¶¶ 12-18. Defendants move to dismiss on a variety of grounds.

It is well-settled that in reviewing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) "[t]he applicable standard of review requires the court to accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the non-moving party." Rocks v. City of Philadelphia , 868 F.2d 644, 645 (3d Cir. 1989). Under the Supreme Court's decision in Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 561 (2007), dismissal of a complaint pursuant to Rule 12(b)(6) is proper only where the averments of the complaint plausibly fail to raise directly or inferentially the material elements necessary to obtain relief under a viable legal theory of recovery. Id. at 544. In other words, the allegations of the complaint must be grounded in enough of a factual basis to move the claim from the realm of mere possibility to one that shows entitlement by presenting "a claim to relief that is plausible on its face." Ashcroft v. Iqbal, ___ U.S. ___ , 129 S.Ct. 1937, 1949 (2009) (quoting Twombly , 550 U.S. at 570).

"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." Id . In contrast, pleading facts that only offer "labels or conclusions' or a formulaic recitation of the elements of a cause of action will not do, '" nor will advancing only factual allegations that are merely consistent with a defendant's liability. Id . Similarly, tendering only "naked assertions" that are devoid of "further factual enhancement" falls short of presenting sufficient factual content to permit an inference that what has been presented is more than a mere possibility of misconduct. Id. at 1949-50; see also Twombly , 550 U.S. at 563 n. 8 (A complaint states a claim where its factual averments sufficiently raise a "reasonably founded hope that the [discovery] process will reveal relevant evidence' to support the claim.") (quoting Dura Pharmaceuticals, Inc. v. Broudo , 544 U.S. 336, 347 (2005) & Blue Chip Stamps v. Manor Drug Stores , 421 U.S. 723, 741 (1975)); accord Morse v. Lower Merion School Dist. , 132 F.3d 902, 906 (3d Cir. 1997) (a court need not credit "bald assertions" or "legal conclusions" in assessing a motion to dismiss) (citing with approval Charles Alan Wright & Arthur R. Miller, FEDERAL PRACTICE AND PROCEDURE § 1357 (2d ed.1997) ("courts, when examining 12(b)(6) motions, have rejected legal conclusions, ' unsupported conclusions, ' unwarranted inferences, ' unwarranted deductions, ' footless conclusions of law, ' or sweeping legal conclusions cast in the form of factual allegations.'").

This is not to be understood as imposing a probability standard at the pleading stage. Iqbal , 129 S.Ct. at 1949 ("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."); Phillips v. County of Allegheny , 515 F.3d 224, 235 (3d Cir. 2008) (same). Instead, "[t]he Supreme Court's Twombly formulation of the pleading standard can be summed up thus: stating... a claim requires a complaint with enough factual matter (taken as true) to suggest the required element... [and provides] enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element.'" Phillips , 515 F.3d at 235; see also Wilkerson v. New Media Technology Charter School Inc. , 522 F.3d 315, 321 (3d Cir. 2008) ("The complaint must state enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element.'") (quoting Phillips , 515 F.3d at 235) (citations omitted). "Once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Twombly , 550 U.S. at 563.

It also is well settled that pleadings filed by pro se litigants are to be construed liberally. McNeil v. United States , 508 U.S. 106, 113 (1993); Higgins v. Beyer , 293 F.3d 683, 688 (3d Cir. 2002). And in such circumstances the court has an obligation to "apply the applicable law, irrespective of whether a pro se litigant has mentioned it by name." Higgins , 293 F.3d at 688 (quoting Holley v. Dept. of Veterans Affairs , 165 F.3d 244, 247-48 (3d Cir. 1999)).

But the above-referenced standards are not to be read as a license to excuse or overlook procedural shortcomings in pleadings submitted by those who choose to represent themselves. McNeil , 508 U.S. at 113 ("we have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel"). Thus, a complaint drafted without the benefit of counsel nevertheless must comply with Federal Rule of Civil Procedure 8(a). And, while Fed.R.Civ.P. 8(a)(2) requires only a "short and plain statement of the claims showing that the pleader is entitled to relief, " Rule 12(b)(6) is not without meaning. Krantz v. Prudential Investments Fund Management , 305 F.3d 140, 142 (3d Cir. 2002). It follows that in order to comply with the applicable pleading standards "more detail is often required than the bald statement by plaintiff that he has a valid claim of some type against defendant." Id. at 142-43 (quoting Charles A. Wright and Arthur R. Miller, FEDERAL PRACTICE AND PROCEDURE, § 1357 at 318 (2d ed. 1990)). This principle appears to be even more well-grounded after Twombly.

A summary of plaintiff's complaint follows. Defendants allegedly conspired willfully and purposefully to violate plaintiff's rights to due process and equal protection by depriving him of a multitude of fair and equitable hearings. Complaint at ¶ 12. During the course of the conspiracy they employed tactics that violated attorney and court ethics, engaged in misrepresentation, supplied misinformation, committed malpractice and fraud, and disregarded rules of law and court to the point of violating criminal statutes. Id. at 15. This course of conduct continued throughout plaintiff's presentation of over 60 motions and petitions and was implemented purposefully to: (1) inflict pain, suffering and mental anguish, severe hardship, and humiliation; (2) deprive plaintiff of personal property and (3) cause destruction of personal property, financial loss and loss of livelihood. Id. at 16.

Plaintiff initially hired defendant Attorney Douglas to represent him in a PFA hearing and an anticipated divorce proceeding. Defendant Attorney Mitko represented plaintiff's soon-to-be ex-wife. Id. at ¶¶ 18, 24.

Attorney Douglas "willfully mishandled plaintiff's case." Id. at ¶ 19. At the PFA hearing Attorney Douglas purportedly arrived unprepared, discarded all critical evidence that could refute the charges against plaintiff and then did not communicate with plaintiff during the course of the proceeding. He did not present a summation and then informed plaintiff that no appeal was possible and he did not have a claim to personal property within the marital home. Id. at ¶¶ 18-19. Although Attorney Douglas did negotiate several hours of access to plaintiff's shop and business, the failure to pursue access to the home permitted Attorney Mitko "to deny plaintiff reasonable access to plaintiff's personal property." Id. at ¶ 20.

Attorney Douglas dissuaded plaintiff from pursuing an "at-fault" divorce but permitted Attorney Mitko to proceed with one without clearly stated grounds. Id. at ¶ 21. He then lied and coerced plaintiff into signing a devastatingly harmful consent decree. Id. at ¶22. Plaintiff was duped into giving up entitlement to $1017 in alimony pendent lite in return for a mere $500 a month. Attorney Douglas then purported to work on plaintiff's case for 3 months but in actuality did nothing. Id. at ¶ 22.

After experiencing months of lies and inaction, plaintiff went to Attorney Douglas' office and remarked to his secretary that his irresponsible behavior seemed to constitute professional misconduct. Attorney Douglas then moved to withdraw from the representation and Judge Knafelc granted the motion. This action precluded plaintiff from securing other representation and he was forced to self-represent. Id. at ¶ 23.

When plaintiff received his case file from Attorney Douglas, plaintiff discovered unauthorized agreements between Attorney Douglas and Attorney Mitko that were forged pursuant to telephone conversations and confirmed by mail. These agreements were made without plaintiff's knowledge and even before plaintiff was aware of the PFA charges against him. Id. at ¶ 24. These agreements reflected a conspiracy wherein Attorney Douglas defrauded and betrayed plaintiff and worked exclusively for the benefit of plaintiff's ex-wife. Id. at ¶ 25. This collusion prevented plaintiff from receiving fair and equitable hearings in violation of his Fifth and Fourteenth Amendment rights and resulted in plaintiff losing his home, business, property, personal belongings, livelihood, and thousands of dollars. Id.

Plaintiff attempted to present a "Motion for a New Hearing Based on New Evidence" in the Beaver County Court of Common Pleas. The new evidence was Attorney Douglas' professional misconduct and conspiracy with Attorney Mitko. Id. at ¶ 26. The motion was assigned to Judge Kim Telsa, who had presided in plaintiff's PFA proceeding. Id. at ¶ 27. Attorney Mitko's associate was permitted to respond to plaintiff's motion at the hearing on that motion over plaintiff's objection that Attorney Mitko lacked standing to be heard on Attorney Douglas' misconduct. Id.

Judge Telsa repeatedly characterized plaintiff's motion as an "appeal" of his PFA proceeding and ultimately denied the motion on the ground that it was an untimely appeal. Plaintiff sought reconsideration and clarification, but these motions were denied as well. Id. at ¶¶ 28-29. These rulings were contrary to what the merits dictated, resulting in a willful and purposeful violation of plaintiff's rights to due process and equal protection. Id. at ¶ 30.

Plaintiff attempted to appeal the denial of his motion for a new hearing, but the prothonotary refused to accept the filing without the payment of fees. The County Solicitor failed to justify the refusal. Plaintiff then served notice of his appeal and presented an IFP petition before Judge Kwidis. Attorney Mitko appeared at what should have been a routine means hearing, again complaining that plaintiff was attempting to submit some expired appeals. Judge Kwidis refused to rule on plaintiff's submission, returning it to him without action. The court thereafter ignored two letters written by plaintiff asking for a ruling on the petition. Attorney Mitko somehow subsequently gained possession of one of these letters and presented it to Judge Knafelc in the divorce proceeding, even though the letter was addressed only to Judge Kwidis. Id. at ¶¶ 31-36.

Plaintiff was required to go to the Superior Court to get the trial court to proceed on his IFP petition for appeal. The Court of Common Pleas of Beaver County then scheduled a means hearing six weeks after plaintiff first sought to appeal. This course of obstruction to deny plaintiff from appealing to the Superior Court violated plaintiff's rights to due process and equal protection. Id. at ¶ 37. An order seeking to justify the delay was entered. The order was based on false information that was not in the record. Id. at ¶¶ 38-39. A second order was entered claiming plaintiff had filed a motion to strike his IFP petition; plaintiff had not filed such a motion. Id. at ¶ 40. These fabricated court documents constituted violations of Pennsylvania's criminal law and the criminal creation of the forged orders evidenced a structured conspiracy to violate plaintiff's Fifth and Fourteenth Amendment ...


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