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Breese v. Kurtz

United States District Court, M.D. Pennsylvania

December 8, 2017

JERRY BREESE, Plaintiff
v.
SERGEANT TREY KURTZ, et al., Defendants

          Judge Brann

          REPORT AND RECOMMENDATION

          SUSAN E. SCHWAB, CHIEF UNITED STATES MAGISTRATE JUDGE.

         I. Introduction.

         The plaintiff, Jerry Breese, a prisoner proceeding pro se, filed a complaint, an application for leave to proceed in forma pauperis, and a motion for the appointment of counsel. By a separate order, we granted Breese's application for leave to proceed in forma pauperis and denied his motion for the appointment of counsel. We now recommend that the Court dismiss two of the three named defendants because they are entitled to judicial immunity. Finally, we recommend that the Court remand the case to the undersigned for further proceeding as to the third defendant, a police officer.

         II. Background and Procedural History.

         The complaint names as defendants Trey Kurtz, a sergeant with the Canton Police Department; the Honorable Maureen T. Beirne, President Judge of the Bradford County Court of Common Pleas; and the Honorable Jonathan Wilcox, a magisterial district judge.

         Breese alleges that he worked as a handyman, and in July of 2014, police raided a home in which he was installing a washing machine and a dishwasher. Breese was not the object of the raid. Nor was he one of the individuals listed on the warrant authorizing the raid. Breese complied with all the directions and commands the police gave him. Defendant Kurtz patted Breese down to check for weapons. During the pat down, Kurtz felt a very small plastic container in Breese's pocket. According to Breese, the container could not have held a weapon or been mistaken for a weapon. Nevertheless, Kurtz removed the container from Breese's pocket, and he apparently opened the container, which contained one pain pill (consisting of 5 mg of Percocet and 325 mg of Acetaminophen) that had been prescribed for Breese's back pain. Because Breese did not have the prescription for the pill with him, he “was given an appearance ticket for a preliminary hearing” before a magisterial district judge.

         Breese appeared at the preliminary hearing before Judge Wilcox, and he requested the appointment of counsel. Judge Wilcox told Breese that counsel was not available and that the best thing he could do was to waive the preliminary hearing. Breese did not want to waive the preliminary hearing because he felt he had not committed a criminal action. Nevertheless, he waived the preliminary hearing after Judge Wilcox told him that he would be incarcerated until an attorney was assigned to him if he did not waive the preliminary hearing. According to Breese, Judge Wilcox exceeded his authority by threatening him with incarceration if he did not waive his rights. Judge Wilcox bound all the charges over to the Court of Common Pleas.

         After Breese was assigned a public defender, he filed a motion to suppress the evidence against him on the grounds that defendant Kurtz violated the law with respect to the pat down search. In March of 2015, Judge Beirne held a hearing, after which she denied Breese's motion to surpass. According to Breese, Judge Beirne refused to acknowledge the arguments of his attorney, and she abused her discretion. In April of 2015, after a bench trial, Judge Beirne found Breese guilty of criminal possession of a controlled substance. She later sentenced Breese to 6 months to 23 months and 29 days incarceration. After serving 226 days, Breese was paroled in June of 2016.

         In September of 2016, finding the acts of the police to constitute overreaching search tactics, the Superior Court of Pennsylvania overturned Breese's conviction and vacated his sentence.

         Breese contends that the defendants caused him to be unlawfully incarcerated and deprived him of life and liberty without probable cause or due process. He is seeking compensatory and punitive damages.

         III. Discussion.

         A. Screening of In Forma Pauperis Complaints-Standard of Review.

         This Court has a statutory obligation to conduct a preliminary review of pro se complaints brought by prisoners given leave to proceed in forma pauperis in cases that seek redress against government officials. Specifically, the court must review the complaint ...


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