United States District Court, Middle District of Pennsylvania
DONALD E. SIMPSON, Plaintiff
DAUPHIN COUNTY COURT OF COMMON PLEAS, et al., Defendants
REPORT AND RECOMMENDATION
THOMAS M. BLEWITT United States Magistrate Judge
On August 1, 2014, Plaintiff, Donald E. Simpson, a resident at 411 N. Third Street, Steelton, Pennsylvania, filed, pro se, the instant form Complaint alleging violations of his civil rights under 42 U.S.C. § 1983. (Doc. 1). Plaintiff names as Defendants the Court of Common Pleas of Dauphin County, Pennsylvania, Dauphin County Clerk of Court, Dauphin County Deputy Clerk of Court “Alex, ” John Kerr, Esquire, and Dauphin County Court of Common Pleas Judge Deborah E. Curcillo. Plaintiff also filed a Motion to proceed in forma pauperis in which he states that he is not employed and that he is currently on bail. (Doc. 2). Plaintiff attached several Exhibits to his Complaint which are copies of court documents filed in Plaintiff’s two Dauphin County Criminal cases, namely, case number CP-22-CR-2214-2012 and case number CP-22-CR-0675-2013. (Doc. 1-2, pp. 1-23).
In his civil rights Complaint, Plaintiff is essentially challenging his June 3 and 4, 2014, criminal jury trial and conviction on drug and drug related offenses in Dauphin County Court of Common Pleas over which Defendant Judge Curcillo presided and Defendant Kerr was his defense counsel. See Com. of PA v. Donald E. Simpson, No. CP-22-CR-2214-2012. Plaintiff claims that Defendant Judge Curcillo committed judicial misconduct during his criminal proceedings and was biased against him and, that Defendant Kerr’s conduct was unprofessional and amounted to ineffective assistance of counsel. Plaintiff avers that Defendant Judge Curcillo should have requested Defendant Kerr to withdraw as his defense counsel after he (Plaintiff) was found guilty by a jury at trial on June 4, 2014, and that Defendant Judge Curcillo improperly allowed Kerr to continue representing him. Plaintiff also states that Defendant Kerr admitted he was under the influence of drugs prior to the start of Plaintiff‘s trial. Plaintiff further states that after he was found guilty, he tried to file, on July 3, 2014, with Dauphin County Deputy Clerk of Court “Alex, ” a Petition to proceed pro se in his case and to request that his counsel, Defendant Kerr, withdraw. However, Plaintiff alleges that Defendant Dauphin County Deputy Clerk of Court “Alex” refused to file his Petition and that he again requested to file his document. Plaintiff then states that Defendant Dauphin County Deputy Clerk of Court “Alex” checked with his supervisor and with the Dauphin County Chief Clerk of Court and, that they “stated [Plaintiff] must be sentence[d] first” before he can seek to proceed pro se in his criminal case. As such, Plaintiff states that neither Defendant Dauphin County Deputy Clerk of Court “Alex” nor the Chief Clerk would file his Petition. Plaintiff claims that Defendant Dauphin County Deputy Clerk of Court “Alex” and the Chief Clerk had no authority to prevent him from filing his documents in his criminal case.
Additionally, Plaintiff states that after he was found guilty, he tried to file on July 2, 2014, with Dauphin County Deputy Clerk of Court “Alex, ” a Petition to continue his sentencing and that both Alex and the Chief Clerk refused to file his Petition. Plaintiff claims that the Chief Clerk and Deputy Clerk Alex violated his constitutional rights to file court documents in his criminal case, i.e., a First Amendment denial of access to courts claim. (Doc. 1, p. 3).
Plaintiff further alleges that on July 14, 2014, he sent Defendant Kerr a letter telling him to withdraw as his counsel in all of his criminal cases, and that on July 18, 2014, Defendant Kerr filed a Petition to withdraw from all of Plaintiff‘s cases. Plaintiff states that on July 18, 2014, he tried to again file with Dauphin County Deputy Clerk of Court “Alex” a Petition to proceed pro se in his case and to request that his counsel, Defendant Kerr, withdraw. Once again, Plaintiff alleges that Defendant Dauphin County Deputy Clerk of Court “Alex” refused to file his Petition and that Alex’s supervisor and the Chief Clerk of Court told Plaintiff that he must be sentenced before he can file any documents on his own behalf in his case. Plaintiff states that he then went to Defendant Judge Curcillo’s Chambers to complain and he met with the Judge’s secretary who “stated Clerk’s Office has no right to do that and should have filed [your] papers.” Plaintiff avers that he went back to the Clerk’s Office and the staff still refused to file his documents in his case. Plaintiff claims that the Dauphin County Clerk of Court’s Office was ordered by “some authority figure at the Dauphin County Courthouse to not file any documents” for Plaintiff. (Doc. 1, pp. 5-6).
Plaintiff alleges that on July 22, 2014, in his other criminal case, No. CP-22-CR-0675-2013, Dauphin County Court Judge Lewis issued an Order stating that the Motion to Withdraw as counsel filed by Attorney Kerr should not be granted. Plaintiff states that he did not file any motion with Judge Lewis in his case No. CP-22-CR-0675-2013 and, he repeats that the Clerk of Court would not file his documents in his cases. Plaintiff points out that his Petition to proceed pro se and to request that his counsel, Defendant Kerr, withdraw was addressed to Judge Curcillo in case number CP-22-CR-2214-2012. Plaintiff claims that Judge Lewis had no authority to issue an Order in his case No. CP-22-CR-0675-2013 since he did not file a motion in that case for Attorney Kerr to withdraw as his counsel.
Plaintiff states that since Attorney Kerr was under the influence of drugs at his June 2014 jury trial in case number CP-22-CR-2214-2012, he does not want Kerr to represent him in any of his cases. Plaintiff states that Defendant Kerr did not properly represent him at trial in his Dauphin County Court case number CP-22-CR-2214-2012 and that since Kerr was intoxicated, he could not stand, he could not perform properly and he was unable to ask questions. Plaintiff also states that Defendant Kerr failed to contact his witnesses. Plaintiff states that Defendant Kerr admitted he was under the influence of drugs due to pain he was experiencing and that Defendant Judge Curcillo should have continued his trial for another day. Further, Plaintiff states that Defendant Kerr failed to appeal his conviction within 10 days of his guilty verdict at trial. (Id., p. 6).
As relief in his present Complaint, Plaintiff requests that this federal Court issue an injunction to prohibit his sentencing in case number CP-22-CR-2214-2012 and to order Dauphin County Court to give him a new trial. With respect to his case number CP-22-CR-0675-2013, Plaintiff requests this federal Court issue an injunction continuing the trial in this case “until an investigation is over in all cases involving [Plaintiff].” Plaintiff also requests $100, 000 in damages from the Defendant Dauphin County Clerk of Courts. (Doc. 1, p. 2). Plaintiff does not specifically indicate if he is seeking damages from his other Defendants.
Plaintiff further requests this federal Court to take over all of his criminal cases pending in Dauphin County Court and that this be accomplished before his sentencing on August 6, 2014, by Judge Curcillo in case number CP-22-CR-2214-2012, and before his trial commences during the August 11, 2014 criminal term in his case No. CP-22-CR-0675-2013. Plaintiff also requests that all of his criminal cases be placed on hold pending an investigation for judicial misconduct at the Dauphin County Courthouse. Plaintiff additionally requests that this federal Court issue an injunction barring Dauphin County Court to proceed with his criminal cases until the investigation is complete. Further, Plaintiff states that his right to effective assistance of counsel by Defendant Kerr has been violated. (Id., p. 7).
According to Plaintiff ‘s Criminal Docket in case number CP-22-CR-2214-2012, Defendant Kerr filed a motion to withdraw as Plaintiff’s counsel on July 21, 2014, and on July 28, 2014, Defendant Judge Curcillo granted the motion. Plaintiff then filed a request to continue his sentencing on August 5, 2014, as well as a request to have Defendant Kerr withdraw from his case and an application for leave to proceed in forma pauperis. Defendant Kerr filed a Praecipe on August 5, 2014, withdrawing his appearance in Plaintiff‘s case. Plaintiff was then sentenced on August 6, 2014, by Judge Curcillo in case number CP-22-CR-2214-2012, and he received a sentence of 36 to 72 months in state prison on Count 1, possession with intent to deliver a controlled substance, and a 12-month sentence in state prison on Count 2, use/possession of drug paraphernalia. It is not clear from Plaintiff‘s Criminal Docket in case number CP-22-CR-2214-2012 whether his sentences on Counts 1 and 2 run concurrently or consecutively. Further, on August 7, 2014, Judge Curcillo issued an Order in case number CP-22-CR-2214-2012 denying Plaintiff’s application to proceed in forma pauperis and request for a continuance of his sentencing since Plaintiff requested court appointed appellate counsel at his sentencing and this request was granted. In her Order, Judge Curcillo also directed that Plaintiff ‘s request to have his counsel (Kerr) withdraw and his entry of appearance pro se were moot since Kerr was already granted leave to withdraw from Plaintiff‘s case and since Plaintiff was granted court appointed appellate counsel at his sentencing.
Plaintiff states that he has another criminal case pending in Dauphin County Court of Common Pleas and that his trial in his second case has not yet commenced. See Com. of PA v. Donald E. Simpson, No. CP-22-CR-0675-2013. Indeed, the Docket in Plaintiff’s criminal case No. CP-22-CR-0675-2013 reflects that this case is on the trial term in Dauphin County Court which began on August 11, 2014.
According to Plaintiff ‘s Criminal Docket, Judge Lewis issued a Order – Rule to Show Cause on July 22, 2014, in case number CP-22-CR-0675-2013, to show why Attorney Kerr’s July 18, 2014 Motion to Withdraw as Counsel should not be granted. The Rule was returnable on August 11, 2014. The Order also stated that Plaintiff should still be prepared to proceed with trial on August 11, 2014, with or without counsel. Thus, contrary to Plaintiff’s allegations, Plaintiff did not file a motion in case number CP-22-CR-0675-2013 for an Order directing Attorney Kerr withdraw as counsel and Judge Lewis did not issue an Order stating that the Motion to Withdraw as counsel filed by Attorney Kerr should not be granted.
II. STANDARDS OF REVIEW.
1. Screening pro se in forma pauperis Complaints
As stated, Plaintiff has filed an application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (Doc. 2). Because Plaintiff has filed a Motion to Proceed in forma pauperis, we are obliged to screen Plaintiff‘s pleading under 28 U.S.C. §1915(e) even though he is not an inmate and he is not complaining about prison conditions.
In Palencar v. Cobler Realty Advisors, Civil No. 09-0325, M.D. Pa., 7-24-09 slip op. pp. 5-6, the Court stated:
Once it has been decided that a plaintiff should be accorded in forma pauperis status, the court then considers whether the complaint may be dismissed under 28 U.S.C. § 1915(e)(2)(B). Douris v. Huff, 2008 U.S. App. LEXIS 467, 469 (3d Cir. 2007); see also Douris v. Newtown Borough, Inc. 207 Fed.Appx. 242 (3d Cir. 2006). Section 1915(e)(2) provides: (2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that --
(A) the allegation of poverty is untrue; or
(B) the action or appeal - -
(i) is frivolous or ...