United States District Court, M.D. Pennsylvania
WILLIAM J. NEALON, District Judge.
On July 31, 2014, Plaintiff, Armoni Masud Johnson, an inmate currently incarcerated at the Dallas State Correctional Institution in Dallas, Pennsylvania, filed this pro se civil rights action pursuant to, inter alia, 42 U.S.C. § 1983. (Doc. 1). Along with his complaint, Plaintiff also filed an application seeking leave to proceed in forma pauperis. (Doc. 2). Subsequent to the filing of his complaint, Plaintiff filed five supplements to his complaint on the following dates: September 8, 2014; September 11, 2014; October 28, 2014; February 13, 2015; and March 16, 2015. (Docs. 6-10).
An initial screening of the complaint and related supplements has been conducted, and for the reasons set forth below, the motion to proceed in forma pauperis will be granted for the sole purpose of filing the instant action; certain claims will be dismissed from this action and Plaintiff's remaining claim will be stayed pending Plaintiff's receipt of a favorable termination in his criminal case.
I. Standard of Review
The Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (April 26, 1996), authorizes a district court to dismiss an action brought by a prisoner under 28 U.S.C. § 1915 if, inter alia, the complaint is frivolous, malicious, or fails to state a claim upon which relief may be granted. "The legal standard for dismissing a complaint for failure to state a claim under § 1915(e)(2)(B)(ii) is the same as that for dismissing a complaint pursuant to a motion filed under Rule 12(b)(6) of the Federal Rules of Civil Procedure." Credico v. Guthrie, 2014 U.S.App. LEXIS 11960, *3 (3d Cir. 2014). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 456 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court "must accept the truth of all factual allegations in the complaint and must draw all reasonable inferences in favor of the non-movant." Revell v. Port Auth., 598 F.3d 128, 134 (3d Cir. 2010).
"Additionally, a civil rights complaint must comply with Federal Rule of Civil Procedure 8(a)." Atwater v. Shaffer, 2014 U.S. Dist. LEXIS 87463, *3 (M.D. Pa. 2014) (Jones, J.). Federal Rule of Civil Procedure 8(a)(2) dictates that to state a claim, a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2). This standard "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 570. "Factual allegations must be enough to raise a right to relief above the speculative level." Id . "The Third Circuit has held that a civil rights complaint is adequate where it states the conduct, time, place, and persons responsible." Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005). Further, pro se complaints are to be liberally construed. Haines v. Kerner, 404 U.S. 519, 520 (1972).
Plaintiff claims that on May 31, 2012, he was the subject of an unconstitutional undercover operation. (Doc. 1, p. 2). He alleges that Defendants, Pennsylvania state troopers Walter Koehler, Christopher O'Brien, and Christopher Lamb, violated his equal protection and due process rights by utilizing the alleged victim of an aggravated assault charge against Plaintiff at docket number CP-40-CR-0002713-2011 (Luzerne Cnty. C.P. filed Sept. 15, 2011) ("XXXX-XXXX"), as a confidential informant to "entrap" him with drug charges at docket number CP-40-CR-0002553-2012 (Luzerne Cnty. C.P. filed July 20, 2012) ("XXXX-XXXX"). (Doc. 1, pp. 2-3). Plaintiff states that he was out on bail awaiting trial for the aggravated assault charge at 2713-2011, in which he was charged with stabbing the victim and had a no-contact order with the victim as a condition of bail, when he was arrested on May 31, 2012, and charged with selling a bag of heroin. (Id. at p. 3).
Additionally, Plaintiff seeks to name Judge Fred Pierantoni as a Defendant for allegedly assisting the assault victim in Plaintiff's conviction in case number XXXX-XXXX, an unfair trial, and conspiring to attack his due process rights. (Id. at p. 4). Plaintiff claims that Judge Joseph Augello conspired against him, issued false warrants, and violated his appeal rights in Plaintiff's criminal case at docket number CP-40-CR-0002193-2010 (Luzerne Cnty. C.P. filed July 26, 2010) ("XXXX-XXXX"). (Id.). He alleges that the sentence imposed by Judge Kenneth Brown on January 17, 2012, in XXXX-XXXX violated his Eighth Amendment rights. (Id).
Next, Plaintiff claims that his attorneys, Charles Ross and Mark Singer of the Luzerne County Public Defender's Office, conspired against him and abandoned him during the course of the alleged May 31, 2012, entrapment in XXXX-XXXX. (Doc. 1, p. 4). Further, Plaintiff seeks to name as a Defendant his court-appointed attorney, Matthew Kelly, for allegedly conspiring with Judge Augello to violate his appeal rights in case number XXXX-XXXX. (Id.). The complaint states that Plaintiff is serving a sentence for the assault in case number XXXX-XXXX, but has yet to have a trial on his drug charges at case number XXXX-XXXX. (Id).
Plaintiff also names as additional Defendants the "owner of the Crossing Over Program Casey only known name" and the "Dailey Reporting Center." He alleges that money was seized from his person and lost by the "Crossing Over Program." (Id. at pp. 3-4). As to the "Dailey Reporting Center, " Plaintiff claims that he was unconstitutionally placed in the "Dailey Reporting Center, " and he alleges that the "Daily Reporting Center" conspired to entrap Plaintiff in case number XXXX-XXXX. (Id. at p. 5).
Plaintiff claims that his constitutional rights to due process, equal protection, and a fair trial were violated when bail was "used as punishment" on April 26, 2013. (Id.). Finally, Plaintiff raises a claim for prosecutory misconduct for the events that occurred on May 31, 2012, and "any conspiracies] to it." (Doc. 1, p. 5). Plaintiff seeks monetary damages and to have his "civil liberty" restored (Id. at p. 3).
In a letter filed September 8, 2014, Plaintiff seeks leave to amend his complaint to name the Luzerne County District Attorney's Office as a defendant for alleged "prosecutory misconduct after a court date August 7, 2014, " at which he asked the Luzerne County Court of Common Pleas to vacate his conviction in case number XXXX-XXXX following the identification of the alleged victim in XXXX-XXXX as the confidential informant in two (2) pending criminal cases. (Doc. 6).
On September 11, 2014, Plaintiff filed a letter with supplemental allegations to his complaint. See (Doc. 7). First, he makes additional allegations against his court-appointed attorney Matthew Kelly for "negligent nonfeasance in connection with" case number XXXX-XXXX, and claims that Kelly is conspiring to violate his rights. (Id. at p. 1). Second, Plaintiff alleges misconduct and malicious prosecution by Stephanie Salavantis, F. McCabe, and Mary Phillips of the Luzerne County District Attorney's Office following his court appearance on August 7, 2014. (Id.). Finally, he reiterates his claim against Judge Pierantoni, contends that he has evidence of the violations surrounding the events on May 31, 2012, and alleges that he was wrongfully denied the assistance of counsel, which deprived him of a fair trial in case number XXXX-XXXX. (Doc. 7, p. 1). Plaintiff seeks "to obtain relief from false imprisonment from illegal conviction and deprivation of [his] federal constitutional rights and seeks compensation" for the same. (Id.).
On October 28, 2014, Plaintiff filed a second letter with supplemental allegations to his complaint. (Doc. 8). Plaintiff claims that Judge Augello and his chambers, the Luzerne County Clerk of Court, Luzerne County Public Defenders Charles Ross and Mark Singer, and his court-appointed attorney Matthew Kelly engaged in a conspiracy. (Id. at p. 1). Specifically, Plaintiff alleges that attorney Matthew Kelley "conspired with this act against plaintiff by filing a no-merit brief August 2013." (Id.). He also claims that exculpatory evidence was withheld after such evidence was requested by Plaintiff. (Id.). He states that Judge Augello was supposed to forward the requested exculpatory evidence to Plaintiff, but that was never done. (Id.). Plaintiff also raises a claim of ineffective assistance of counsel "which violated plaintiff[']s rights to appeal or access to the courts." (Id.). Plaintiff then claims that Judge Brown failed to inform him of his right to appeal on January 17, 2012, and denying Plaintiff's "rights of bail" pending appeal "in which offence was a misdemeanor and did not require jail" was "so cruel and unusual punishment and violation of due process clause." (Doc. 8, p. 1). He also asserts that Public Defender Charles Ross "abandoned plaintiff with out notifying plaintiff, thus violating plaintiffs rights to appeal a criminal offence...." (Id.). Plaintiff continues by alleging that Charles Ross "just so happened to abandon plaintiff to" begin representing an "opposing party of plaintiff leaving plaintiff" without effective assistance of counsel "when it was plaintiff's constitutional rights to have assistance of counsel for the case at the time around or about January 2012 to December 2, 2012." (Id.).
Plaintiff's second supplement to his complaint also claims that Judge Pierantoni violated his equal protection rights "for a pre-trial release violation...." (Id. at p. 2). According to Plaintiff:
[r]ecords and transcripts will reflect that plaintiff has been deprived of federal constitutional rights and the superior courts of Pennsylvania has agreed to these unconstitutional acts in which I desire to challenge through these civil rights actions and is plaintiff[']s only means of seeking relief and justice from violations.
(Id.). Plaintiff requests that his charges be "thrown out and record expunged from appeal rights being violated and cruel and unusual punishment, and seeks no less than 100 thousands dollars from each defendant." (Doc. 8, p. 2).
On February 13, 2015, Plaintiff filed a third letter with supplemental allegations to his complaint. (Doc. 9). Plaintiff begins by accusing the criminal division of the Luzerne County court system and "[a]ll the defendants in this 1983 civil rights complaint" of committing the following:
subornation to commit perjury and Brady violations, withholding exculpatory evidence from plaintiff and constantly entrapping plaintiff with [incarceration] and depriving plaintiff of liberty justice property life due process and equal protection and fundamental fairness in criminal system.
(Id. at p. 2). Plaintiff then claims that prosecutorial misconduct occurred when the identity of a confidential informant, Justin Barna, was withheld even though Barna fell "under crimen falsi." (Id.). He also alleges that a Brady violation occurred when Barna's criminal history was withheld from Plaintiff even though Barna fell "under crimen falsi." (Id.). Plaintiff then advances an equal protection violation due to Defendants selectively prosecuting Plaintiff. (Id.). Specifically, Plaintiff alleges that he was selectively prosecuted in XXXX-XXXX, while Barna, the confidential informant, was not charged. (Id.). Plaintiff also claims, in support of his selective prosecution claim, that Barna, the "unwitting go between, " was not charged in "137-2012." (Id.). According to Plaintiff, "[a]ll defendants in this 1983 claim conspired with each other and committed official oppression, subornation to perjury, withholding exculpatory evidence, Brady violation, and prosecutory misconduct." (Doc. 9, p. 2).
On March 16, 2015, Plaintiff filed a fourth supplement to his complaint. (Doc. 10). Plaintiff first asserts that Barna should not be allowed to be a confidential informant outside of case number XXXX-XXXX due to Barna being "bias and racist." (Id. at p. 2). Plaintiff then raises a section 1985 claim based upon the acts allegedly committed by the relevant Defendants on May 31, 2012. (Id.). According to Plaintiff, "[t]he event of May 31, 2012 is critical to (1) to recover damages from persons who have conspired to interfere with those rights or [privileges]." (Id.). Plaintiff claims that the events on May 31, 2012, are critical as to whether "the undercover operatives engaged in unfair tactics and overreaching in violation of [the] due process clause...." (Id.). Plaintiff claims that his equal protection rights were violated because:
[k]nowledge of opposing parties, state troopers, and their participation in the event of May 31, 2012 and utilizing allege[d] [victim] Justin Barna [in] case # XXXX-XXXX as a confidential informant against plaintiff Armoni Masud Johnson [in] case # XXXX-XXXX is violation of equal protection rights and brings light to fraud on behalf of all opposing parties....
(Id.). Plaintiff alleges that the use of Barna as the confidential informant in the alleged conspiracy to entrap Plaintiff in XXXX-XXXX violated his right to equal protection and due process because, according to Plaintiff, Barna is "bias and racist." (Doc. 10, p. 3). Additionally, Plaintiff claims that these facts support a 42 U.S.C. § 1985(3) claim. (Id. at pp. 2-3).
Plaintiff's March 16, 2015, supplement also alleges that these facts amount to government misconduct and prosecutorial misconduct. (Id. at p. 4). More specifically, Plaintiff again advances claims of selective prosecution and enforcement. (Id.). According to Plaintiff:
[a]ctions premised on the equal protection clause must allege that enforcement officers pursued a cust[o]m or policy of providing less protection to one class of person than another and that the custom or policy stemmed from a discriminatory motive or animus[ ] deep seated resentment and hostility,  Where a plaintiff is able to demonstrate that law enforcement officials follow[ ] a custom or policy that had discriminatory effect in terms of the amount of protection afforded one class, as opposed to another class, a jury may infer that a discriminatory motive existed.
(Id.). Plaintiff alleges that "all defendants" in this matter "conspired with eac[h] other to deprive [him] of constitutional rights not limited to violation of fair trial July 15 2013 for case # XXXX-XXXX and denial of pre-release." (Id.). Plaintiff further states that the use of "prejudicial propaganda which could have had an impact on the persons who are the subject of the indictment." (Id.). Plaintiff claims that events "which potentially taint the accuracy of fact-finding process may give rise to a viable 1983 claim." (Doc. 10, p. 4). Further, Plaintiff states that withholding exculpatory evidence and "[t]he divulgence of confidential information may violate privacy rights and give rise to a 1983 action." (Id.).
III. State Court Proceedings
On September 28, 2011, in case number XXXX-XXXX, Plaintiff was found guilty after a jury trial of unlawful possession of a controlled substance. Commonwealth v. Johnson, No. CP-40-CR-2193-2010 (Luzerne Cnty. C.P. filed July 26, 2010). He was sentenced by Judge Brown on January 17, 2012, and paroled two (2) months later. Id . On June 20, 2012, a parole violation report was filed. Id . A post-sentence motion was subsequently denied by Judge Augello. Id . On appeal, the Pennsylvania Superior Court remanded the matter "for thirty (30) days for a determination as to whether counsel has abandoned appellant and to take further action as the court may deem necessary, including, but not limited to, appointment of new counsel." Commonwealth v. Johnson, 2177 MDA 2012 (Pa.Super. June 10, 2013). On remand, Matthew Kelly, Esquire, was appointed to represent Plaintiff. Johnson, No. CP-40-CR-2193-2010. Supplemental records were sent to the Superior Court, and on February 18, 2014, the Pennsylvania Superior Court affirmed and granted counsel's petition to withdraw. Johnson, No. CP-40-CR-2193-2010; Johnson, 2177 MDA 2012.
In case number XXXX-XXXX, Plaintiff was convicted of two counts of Aggravated Assault and sentenced on October 11, 2013, by Judge Pierantoni to not less than sixty-six (66) months imprisonment to not more than one hundred fifty-six (156) months. Commonwealth v. Johnson, No. CP-40-CR-2713-2011 (Luzerne Cnty. C.P. filed Sept. 15, 2011). Plaintiff filed a timely direct appeal, which is pending. Commonwealth v. Johnson, 2119 MDA 2013 (Pa.Super. filed Nov. 13, 2013).
In case number XXXX-XXXX, Plaintiff has been charged with possession of a controlled substance, the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance, and criminal use of communication facility for an offense on May 31, 2012. Commonwealth v. Johnson, No. CP-40-CR-2553-2012 (Luzerne Cnty. C.P. filed July 20, 2012). This action is currently pending, and the Honorable Fred Pierantoni has presided over bail matters in the case. Id.
Plaintiff also has drug-related charges pending in docket number CP-40-CR-117-2012 ("117-2012"). Commonwealth v. Johnson, No. CP-40-CR-117-2012 (Luzerne Cnty. C.P. filed January 10, 2012).
The main thrust of Plaintiff's complaint and supplements focus on his section 1983 claims. In order to state a viable section 1983 claim, a plaintiff must plead two essential elements: (1) that the conduct complained of was committed by a person acting under color of state law, and (2) that said conduct deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States. Groman v. Twp. of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995); Shaw by Strain v. Strackhouse, 920 F.2d 1135, 1141-42 (3d Cir. 1990). "To establish liability for deprivation of a constitutional right under § 1983, a party must show personal involvement by each defendant." Keys v. Carroll, 2012 U.S. Dist. LEXIS 137930, *26 (M.D. Pa. 2012) (Caputo, J.) (citing Ashcroft v. Iqbal, 556 U.S. 662, 676-77 (2009) ("Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.")); see Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010).
1. Judge Pierantoni, Judge Augello, and Judge Brown
Plaintiff attempts to name Judge Pierantoni, Judge Augello, and Judge Brown of the Luzerne County Court of Common Pleas to the complaint for actions related to their judicial duties, such as conduct during trial and on appeal, the issuance of warrants, and sentencing. (Doc. 1, pp. 4-5); (Doc. 7, pp. 1); (Doc. 8, pp. 1-2); (Doc. 9, p. 2); (Doc. 10, p. 4). However, these Defendants are immune from suit. See Dennis v. Sparks, 449 U.S. 24, 27 (1980) (holding that "judges defending against § 1983 actions enjoy absolute immunity from damages liability for acts performed in their judicial capacities"). "[J]udicial immunity is not overcome by allegations of bad faith or malice, the existence of which ordinarily cannot be resolved without engaging in discovery and eventual trial." Mireles v. Waco, 502 U.S. 9 (1991). Accordingly, these Defendants will be dismissed with prejudice.
2. Attorneys Matthew Kelly, Charles Ross, and Mark Singer
Additionally, Plaintiff wishes to name his court-appointed attorney Matthew Kelly, and Charles Ross and Mark Singer of the Luzerne County Public Defender's Office to his lawsuit for, inter alia, allegedly conspiring to violate his appeal rights and for abandoning Plaintiff during the alleged entrapment. (Doc. 1, pp. 4-5); (Doc. 7, p. 1); (Doc. 8, p. 1); (Doc. 9, p. 2). But, these defendants are immune from civil liability. See Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981) (determining that a public defender is immune from suit "when performing a lawyer's traditional functions as counsel to a defendant in a criminal proceeding" because he/she is not acting under the color of state law), abrogated on other grounds by, D.R. ex rel. L.R. v. Middle Bucks Area Vocational Technical Sch., 972 F.2d 1364, 1368 n.7 (3d Cir. 1992); Black v. Bayer, 672 F.2d 309, 317 (3d Cir. 1982) ("We therefore hold that court-appointed counsel are absolutely immune from civil liability under § 1983."), cert. denied by, Stoica v. Stewart, 459 U.S. 916 (1982). When liability is premised on counsel's actions or inactions in connection with performing traditional functions as defense counsel, even if he was so neglectful that his representation amounted to no representation at all, counsel is not acting under color of state law. See Santos v. Sec'y of D.H.S., 2013 U.S.App. LEXIS 8299, *7-8 (3d Cir. 2013) (affirming dismissal of the section 1983 claims against the plaintiff's court-appointed attorney "because she is not a state actor and is thus not a proper defendant under § 1983"); Allam v. Moulton, 2011 U.S. Dist. LEXIS 46842, *3-4 (M.D. Pa. 2011) (Caldwell, J.) (dismissing the section 1983 complaint after review under 28 U.S.C. § 1915(e)(2)(B) because the defendant, counsel for the plaintiff in criminal proceedings before the juvenile court, was not a state actor); Reynolds v. Kosik, 2007 U.S. Dist. LEXIS 6821, *8 (M.D. Pa. 2007) (McClure, ...