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Bracken v. County of Allegheny

United States District Court, W.D. Pennsylvania

February 7, 2017

Charles Bracken, William Deforte, William Jackson, and Patrick Jennings, Plaintiffs,
The County of Allegheny, William P. Mullen as Sheriff of Allegheny County, the Allegheny County Sherriff's Office, Chelsa Wagner as Allegheny County Controller, the Allegheny County Controller's Office, Allegheny County District Attorney John Fitzgerald In His Official Capacity and as an Individual, and Allegheny County District Attorney Inspector Darrel Parker In His Official Capacity and as an Individual, Jointly and Severally, Defendants.


          Cynthia Reed Eddy, United States Magistrate Judge.[1]

         I. Introduction

         Four current and/or former Pennsylvania constables initiated this civil rights action under 42 U.S.C. §§ 1983, 1985, and 1986, and Pennsylvania law against seven Allegheny County entities and officials: Allegheny County, the Allegheny County Sheriff's Office; Allegheny County Sheriff William P. Mullen (“Sheriff Mullen”); Allegheny County Assistant District Attorney John Fitzgerald (“ADA Fitzgerald”); Allegheny County District Attorney Inspector Darryl Parker (“Inspector Parker”); the Allegheny County Controller's Office; and Allegheny County Controller Chelsa Wagner (“Controller Wagner”). There are currently four pending motions to dismiss the Plaintiffs' amended complaint. (ECF Nos. 28, 30, 32, 35). The parties have submitted hundreds of pages of legal briefs and documents in connection with these pending motions, (ECF Nos. 29, 31, 33, 36, 39, 41, 43-48, 51-54), all of which have carefully been reviewed by the Court. Upon review of the amended complaint and these filings, the Court agrees with Defendants that the amended complaint lacks facial plausibility and deserves to be dismissed for failure to state a claim. However, Plaintiffs will be given an opportunity to file a second amended complaint.

         II. Legal Standard

         “Under Rule 12(b)(6), a motion to dismiss will be granted only if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court finds that plaintiff's claims lack facial plausibility.” Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 88 (3d Cir. 2011). “In deciding a Rule 12(b)(6) motion, a court must consider only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the complainant's claims are based upon these documents.” Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010). Further, “[i]t is axiomatic that the complaint may not be amended by the briefs in opposition to a motion to dismiss.” Commonwealth of Pa. ex rel Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988) (internal marks and citation omitted); see also Frederico v. Home Depot, 507 F.3d 188, 201-02 (3d Cir. 2007).

         III. Factual Background

         The amended complaint (ECF No. 12) consists of 266 paragraphs and spans over thirty-four pages, but distilled to its essence, the salient allegations asserted therein are as follows. At all relevant times, Plaintiffs Charles Bracken (“Constable Bracken”), William DeForte (“Constable DeForte”), William Jackson (“Constable Jackson”), and Patrick Jennings (“Constable Jennings”) were elected constables in Pennsylvania. The amended complaint asserts that in Allegheny County, there has been a long history of employees of the Sheriff's Office harboring animosity toward the constables. Said animosity was based, in part, on members of the sheriff's office wanting the exclusive rights to collecting fees associated with serving Allegheny County Family Division bench warrants. Motivated to achieve these exclusive rights at the expense of the constables in Allegheny County, various unnamed officials of the Sheriff's Office influenced ADA Fitzgerald and Inspector Parker to arbitrarily single out a select group of politically unpopular constables, including the Plaintiffs.

         Beginning in 2013, Inspector Parker and ADA Fitzgerald began investigating Plaintiffs for the way in which they submitted fee vouchers on family division warrants, specifically with respect to “turn-ins, ” i.e., a situation where a constable arranges for an individual with an active bench warrant to appear at the family division without taking that individual into physical custody. Inspector Parker and ADA Fitzgerald knew that Plaintiffs' submissions of their fee vouchers on family division warrants were approved by the relevant supervisors, consistent with the practices of the other constables in Allegheny County, and in accordance with longstanding and agreed upon practice in Allegheny County. Plaintiffs contend that these billing practices had been in place since at least 2006 when a purported “contract” was reached between various interested individuals and County entities. According to Plaintiffs, this “contract” was memorialized in a Memo by the director of the family division and later reinforced in a 2012 Constables Handbook.[2] The amended complaint asserts that prior to Inspector Parker and ADA Fitzgerald's investigation, the standard practice for addressing any discrepancies or errors on the fee vouchers submitted by a constable was to strike the voucher and return it to the constable for correction. Inspector Parker and ADA Fitzgerald nonetheless disregarded this standard practice and proceeded with their politically-motivated investigation.

         The Controller's office took the “official stance” that any mistakes made by the constables in submitting fee vouchers were inadvertent and that the constables should not be criminally disciplined. Plaintiffs claim that Controller Wagner and Sheriff Mullen failed “to oversee, train and prevent their employees from violating” the Plaintiffs' rights. However, there are no facts in the amended complaint supporting the inference that Controller Wagner or Sheriff Mullen had any interactions with, let alone control over, ADA Fitzgerald and Inspector Parker, who are both employed by the Allegheny County District Attorney's Office, a separate entity.

         Between late 2013 and the early part of 2014, Inspector Parker and ADA Fitzgerald ordered that each Plaintiff meet with them separately. At every meeting, Inspector Parker and ADA Fitzgerald accused Plaintiffs of improperly submitting fee vouchers relating to turn-ins on family division bench warrants. Inspector Parker and ADA Fitzgerald demanded that each Plaintiff pay a random, arbitrarily calculated “retroactive” amount to resolve the billing discrepancies, but they refused to disclose to Plaintiffs how they calculated said amounts. Inspector Parker and ADA Fitzgerald acknowledged the existence of the “contract, ” which Plaintiffs claim allowed them to bill for the turn-ins on family division warrants. Nevertheless, Inspector Parker and ADA Fitzgerald threatened that failure to pay the applicable amount would result in Plaintiffs being charged with multiple felonies. Based on fear and intimidation, Constables Bracken and Jennings both paid the respective demanded amounts. Constable Jackson refused to pay the demanded amount, which caused him to be barred from serving any future family division warrants. No criminal proceedings were ever initiated against Constables Bracken, Jennings, and Jackson. Inspector Parker and ADA Fitzgerald charged Constable DeForte with multiple felonies notwithstanding that Constable DeForte “was paid fees allowed to be collected for turn-in warrants in the same fashion the [sic] every other constable was historically and customarily allowed as per the terms of the [2006] Memorandum” and was not provided with prior “notice that there was a change in billing policy for turn-in warrant fees charges [sic] by constables during the period 2006 through 2013.”

         IV. Discussion

         After reviewing the amended complaint and Plaintiffs' briefs in opposition to the motions to dismiss, it remains unclear to the Court how many and what types of claims Plaintiffs are attempting to assert under Fourth and Fourteenth Amendments. Some of the Court's confusion is derived from the fact that Plaintiffs inexplicably argue in their briefs in opposition, in conclusory fashion but with great confidence, that they have “clearly” stated claims for legal theories that are not even pled in the amended complaint.[3] Because it is well-established that a pleading may not be amended by a brief in opposition to a motion to dismiss, Zimmerman, 836 F.2d at 181, the Court will disregard any arguments made as to legal theories that are not specifically pled in the amended complaint. The bulk of the Court's confusion, however, is derived from the disjointed way in which Plaintiffs organized Count I of their amended complaint, which needlessly runs on for 121 paragraphs and contains several subcategories. It is entitled, “[All Plaintiffs] v. [All Defendants] Due Process, 14th Amendment, 4th Amendment Prosecution without Probable Cause, §§ 1983, 1985, and 1986.” In addition to conflating these several distinct legal theories, it contains numerous ambiguities.

         With respect to their Fourteenth Amendment due process claim, Plaintiffs do not specify whether they are attempting to proceed under the procedural or substantive due process clause, or both. Consequently, Defendants, through no fault of their own, have interpreted this claim differently. For example, the Sheriff's Office Defendants argue that this claim should be analyzed under the procedural due process claim and that any attempt by Plaintiffs to assert a substantive due process claim should instead be analyzed under the Fourth Amendment, (ECF No. 31 at 6), while the Controller Defendants argue that this claim is more appropriately analyzed under the substantive due process clause. (ECF No. 33 at 6-7). Plaintiffs amplify the confusion by making the contradictory statements in their briefs that under the Supreme Court case Board of Regents v. Roth, 408 U.S. 564 (1972) (which analyzed the procedural due process clause), they “clearly have a substantive due process claim with respect to fundamental liberty interests.” (ECF Nos. 28 at 8, 30 at 8, 48 at 8) (emphasis added).[4]

         Plaintiffs' Fourth Amendment claim is also ambiguous. It is entitled “prosecution without probable cause, ” notwithstanding that the amended complaint expressly pleads that three of the four Plaintiffs were not prosecuted. Further, the amended complaint states that the malicious prosecution claim being asserted by Constable DeForte (and not any other Plaintiffs) is being pursued only under state, not federal, law. Nevertheless, in Plaintiffs' briefs in opposition, they inconsistently contend that all Plaintiffs have stated a § 1983 malicious prosecution claim. Moreover, it is unclear to the Court whether Constables Bracken and Jennings - the only Plaintiffs who are alleged to have paid the arbitrarily calculated retroactive fee demanded by ADA Fitzgerald and Inspector Parker in order to avoid being falsely prosecuted - are attempting to proceed under the Fourth or Fourteenth Amendment with respect to these allegations. The fact that their Fourth and Fourteenth Amendment claims are contained in the same count undoubtedly lends to this confusion. See Walker v. Wentz, 2008 WL 450438, *5 (M.D. Pa. 2008) (“The use of separate counts becomes increasingly important when a plaintiff files suit against ...

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