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Cobb v. Truong

United States District Court, W.D. Pennsylvania

March 26, 2015

FRANK M. COBB, Plaintiff,
MINH-TRI V. TRUONG, in his individual and official capacities, JOHN and/or JANE DOE, in their individual and official capacities, Defendants.



Frank M. Cobb ("plaintiff") commenced this civil rights action against Federal Bureau of Investigation ("FBI") law enforcement officer Minh-Tri V. Truong ("Truong" or "defendant") and unidentified law enforcement officers John and/or Jane Doe ("Doe defendants") (collectively "defendants") seeking redress for assertedly being prosecuted based solely on his association with individuals indicted for federal drug trafficking. Plaintiff's complaint purports to advance federal claims for wrongful arrest, unlawful search and seizure, and malicious prosecution in violation of the Fourth Amendment; wrongful prosecution in violation of his First Amendment right to freedom of association; and a state law claim for intentional infliction of emotional distress. Presently before the court is Truong's motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, the motion will be granted. All claims in plaintiff's complaint will be dismissed with prejudice except plaintiff's malicious prosecution claim in violation of the Fourth Amendment, which will be dismissed without prejudice. As to that claim plaintiff will be granted leave to amend.


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, 556 U.S. 662, 678 (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) and 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, 556 U.S. at 678 ("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.

Further, although the focus in assessing a motion to dismiss is on the allegations set forth in the pleadings, "matters of public record, orders [and] exhibits attached to the complaint" also may be considered. Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994) (citing 5A WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE § 1357); Pension Benefit Guar. Corp. v. White Consol. Industries, Inc., 998 F.2d 1192, 1196 (3d Cir. 1993) (In ruling on a motion to dismiss, a district court can consider the complaint, attached exhibits, and matters of public record.). Matters of public record include judicial proceedings and a court may take judicial notice of another court's opinions and orders. Southern Cross Overseas Agencies v. Wah Kwong Shipping Group Ltd., 181 F.3d 410, 426 (3d Cir. 1999). Finally, in applying the plausibility standard a reviewing court must make a context-specific inquiry, drawing on its judicial experience and common sense. Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009).

The record as read in the light most favorable to plaintiff establishes the background set forth below. Truong led a multi-jurisdictional task force responsible for investigating, arresting and prosecuting members of a drug operation in the Western District of Pennsylvania. Unidentified defendants John and/or Jane Doe assisted Truong with the investigation. As the lead investigator, Truong had principal authority to decide who to target, investigate and/or arrest.

Plaintiff became a target of the investigation due to his relationships with Dewayne Joseph ("Joseph"), Melvin Walker ("Walker"), and Orlando Cobbs ("Cobbs"), each of whom defendant suspected to be part of a drug operation. Plaintiff and Joseph have been close friends since childhood. Cobbs and Walker are plaintiff's cousins. Plaintiff has a close familial relationship with Cobbs and Walker in part because they grew up in the same community.

On December 9, 2010, plaintiff, Joseph, Walker, Cobbs and thirty-eight other individuals were indicted by a federal grand jury for alleged violations of federal drug laws. Plaintiff was charged with conspiracy to possess with intent to distribute five kilograms or more of cocaine and two hundred eighty grams or more of crack cocaine. Plaintiff also was charged with maintaining a drug-involved premises and possessing firearms in furtherance of drug-trafficking crimes. A warrant for plaintiff's arrest was issued.

In the early morning hours of December 14, 2010, Truong and members of a local Pennsylvania State Police Weapons and Tactics team searched plaintiff's residence. Plaintiff refused to consent to the search and was not advised of his rights under Miranda v. Arizona, 384 U.S. 436 (1966). Plaintiff was handcuffed during the search. No cocaine, crack cocaine, or evidence of distribution of cocaine or crack cocaine was discovered. There are no signed forms evidencing plaintiff's consent to the search or a waiver of his Miranda rights. Truong incorporated into his FBI report that plaintiff was read his Miranda rights and agreed to waive them and had consented to the search, but did not sign any forms evidencing the same because he was handcuffed.

Plaintiff was transported to the McKeesport Police Department for further questioning. Truong interrogated plaintiff and during the process falsely asserted that plaintiff had large quantities of cocaine and money obtained from drug-trafficking, despite the absence of evidence connecting plaintiff to such activity.

The United States moved to detain plaintiff pending trial and a detention hearing was held on December 17, 2010. Plaintiff was ordered detained and was transported to Northeast Ohio Correctional Center in Youngstown, Ohio. Plaintiff remained in pretrial detention until December 10, 2011.

Plaintiff was indicted along with seventeen co-defendants for conspiring to distribute 5 or more kilograms of cocaine and 280 grams or more of crack cocaine in violation of 21 U.S.C. § 846. See United States v. Gaines et al., 2:10cr233 (W.D. Pa., J. Ambrose). Plaintiff, Joseph, Cobbs and Walker were named in the original indictment. Id. at Doc. No. 1. Twenty-five additional defendants were charged in related indictments. Plaintiff was the only individual out of the forty-two charged who went to trial. The charges against one defendant were dropped. The remaining forty defendants accepted plea deals. Plaintiff's case was tried before a jury from December 6 through December 9, 2011.

At trial, Joseph testified that plaintiff was not involved in the conspiracy and his residence was not used for drug distribution. Joseph's statements were consistent with his October 17, 2011 affidavit, but were not consistent with "the terms of his plea agreement, " which "implicated" plaintiff in the conspiracy. Joseph acknowledged that his testimony conflicted with the content of his plea agreement, but further testified that the statements incriminating plaintiff were devised by law enforcement and did not reflect his own words. Plaintiff avers on information and belief that the false content of the agreement implicating plaintiff was prepared by Truong or someone acting pursuant to his specific direction.[1]

On December 10, 2011, a jury acquitted plaintiff of all charges and he was released from custody. Plaintiff filed the instant action on December 7, 2013 against Truong and John and/or Jane Doe, in their individual and official capacities, alleging civil rights violations arising out of (1) the search of plaintiff's home, (2) his arrest and detention, and (3) the prosecution that ensued.

Against this background, plaintiff contends that Truong targeted him due to his association with Joseph, Walker and Cobbs. Truong assertedly arrested plaintiff without probable cause and searched his home without consent. Truong and/or the Doe defendants also provided false testimony to the grand jury in order to secure the indictment against him.[2]

In addition to providing false testimony to the grand jury, Truong and/or the Doe defendants purportedly concealed exculpatory evidence from the grand jury. Plaintiff maintained a surveillance system that recorded all activity at his residence. Truong refused to review the footage. Plaintiff repeatedly told Truong to review the tapes because it would show the lack of drug transactions occurring at plaintiff's residence. At an unknown date and time after the December 14, 2010 search, defendants allegedly erased the memory of plaintiff's security system, thereby destroying the exculpatory evidence.

Defendant moves to dismiss plaintiff's complaint on a number of grounds. First, Truong asserts that there is no cognizable claim for violation of the First Amendment right to freedom of association under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Second, the statute of limitations bars plaintiff's claims under the First and Fourth Amendments to the extent they are predicated on plaintiff's allegedly unlawful arrest and search of his residence. Third, plaintiff cannot establish the absence of probable cause necessary to maintain a malicious prosecution claim under the Fourth Amendment because the grand jury indictment provided prima facie evidence of probable cause to prosecute. And there purportedly are insufficient facts alleged to show that Truong improperly pressured or influenced prosecutors to bring the case.

Truong further contends that any claims for failure to present exculpatory evidence to the grand jury properly are analyzed under the Due Process Clause of the Fifth Amendment, not the Fourth Amendment. And any due process claim would still fail because the potentially exculpatory evidence remained in plaintiff's possession, thereby precluding a finding of bad faith.

Truong also asserts that plaintiff's First and Fourth Amendment claims are barred by absolute and/or qualified immunity. From Truong's perspective, plaintiff's claims necessarily are predicated on Truong's testimony and absolute immunity applies to a testifying witness and any work performed in preparation of that testimony. Plaintiff's First Amendment claim is barred by qualified immunity because he cannot establish that Truong violated a clearly established right.

Finally, Truong contends that all § 1983 claims against him should be dismissed because he was not acting under color of state law. Plaintiff's intentional infliction of emotional distress claim fails because a cause of action against an officer in his individual capacity under Bivens is limited to constitutional violations and does not extend to tort claims. And the government invites the court to dismiss the unidentified defendants sua sponte because the grounds for dismissal raised by Truong would apply equally to any other unidentified federal agents and plaintiff's inability to effectuate personal service allegedly bars pursuit of such claims at this juncture.

Plaintiff claims he has pled sufficient facts to draw a reasonable inference that defendants are liable for the misconduct alleged. In other words, defendants purportedly targeted him due to his association with suspected drug-traffickers, initiated his prosecution without probable cause and destroyed exculpatory evidence.

Plaintiff concedes that (1) his intentional infliction of emotional distress claim should be dismissed for the reasons stated by defendant and (2) the statute of limitations has run on the claims predicated solely on his arrest and the search of his residence, including unlawful arrest and false imprisonment.[3] He nevertheless maintains that the evidence related to these events is pertinent to his remaining claims.

Plaintiff asserts his First Amendment claim is viable under Bivens. He reasons that because his freedom of association claim derives from defendants' alleged Fourth Amendment violations, it too is governed by the same statute of limitations. And Truong's invocation of qualified immunity does not defeat his First Amendment claim because the right of freedom of association was clearly established.

From plaintiff's perspective, Truong's assertion of immunity based on testimony misstates plaintiff's malicious prosecution claim. Truong supposedly initiated the prosecution against plaintiff by providing false information to be presented to the grand jury. Defendants also concealed and destroyed exculpatory evidence. Plaintiff challenges defendants' assertion that testimonial immunity extends to this type of conduct.

Plaintiff further maintains that his malicious prosecution claim does not require a showing that Truong pressured the prosecutor to bring the case. Instead, defendant's initiation of the prosecution without probable cause and withholding and destroying exculpatory evidence suffices to state a claim and displace any prima ...

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