United States District Court, E.D. Pennsylvania
F. LEESON, JR. UNITED STATES DISTRICT JUDGE
prior Memorandum and Order entered on July 2, 2019, the Court
dismissed the claim of pro se Plaintiff Anthony
Kinder against the Reading Police Department and placed his
other claim, filed pursuant to 42 U.S.C. § 1983 for
malicious prosecution against Reading Police Officer Hector
Marinez, in civil suspense pursuant to the doctrine announced
in Younger v. Harris, 401 U.S. 37 (1971).
(See ECF Nos. 6, 7.) As public dockets now reflect
that Kinder has entered a guilty plea to the charges pending
when he filed his claims, Younger abstention is no
longer necessary, and the Court can screen the remaining
claim against Defendant Marinez pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii). For the following reasons, the remaining
claim is dismissed without prejudice.
alleges that Officer Marinez violated his Fourth Amendment
rights by engaging in racial profiling when he initiated a
criminal proceeding by filing an affidavit of probable cause.
(ECF No. 1 at 3.) Specifically, Kinder has attached a copy
of an Affidavit of Probable Cause signed by Marinez on
September 25, 2018 asserting that, on February 11, 2018,
Marinez observed a black male wearing a long trench coat
walking on Lemon Street in Reading. (Id. at 12.) He
parked his vehicle, approached the male and detected the odor
of what he recognized to be synthetic marijuana.
(Id.) He asked the male about the odor and the male
responded that he had just smoked it. (Id.) The male
revealed an unlit hand rolled cigar that he had been cupping
in his left hand. (Id.) Marinez confiscated the
cigar and asked the male for identification, which he
provided. (Id.) The male was determined to be
Kinder. (Id.) Lab results indicated the cigar
contained two controlled substances. (Id.) Based on
that information, Marinez sought a summons be issued to
dockets reflect that Kinder, as a result of Marinez’s
affidavit of probable cause, was charged with possession of a
controlled substance. Commonwealth v. Kinder, Docket
No. CP-06-CR-413-2019 (Berks Cty. Common Pleas). At the time
Kinder filed his Complaint on June 20, 2019, the criminal
charges had not yet been resolved. On July 23, 2019, Kinder
entered a guilty plea to the charge of intentional possession
of a controlled substance and was sentenced to a term of 194
days to 23 months incarceration. (Id.)
STANDARD OF REVIEW
Court previously granted Kinder leave to proceed in forma
pauperis, 28 U.S.C. § 1915(e)(2)(B)(ii) applies,
which requires the Court to dismiss the Complaint if it fails
to state a claim. Whether a complaint fails to state a claim
under § 1915(e)(2)(B)(ii) is governed by the same
standard applicable to motions to dismiss under Federal Rule
of Civil Procedure 12(b)(6), see Tourscher v.
McCullough, 184 F.3d 236, 240 (3d Cir. 1999), which
requires the Court to determine whether the complaint
contains “sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quotations omitted). Conclusory allegations do not
suffice. Id. The Court may also consider matters of
public record. Buck v. Hampton Twp. Sch. Dist., 452
F.3d 256, 260 (3d Cir. 2006). As Kinder is proceeding pro
se, the Court construes his allegations liberally.
Higgs v. Att’y Gen., 655 F.3d 333, 339 (3d
state a claim under § 1983, a plaintiff must allege the
violation of a right secured by the Constitution and laws of
the United States, and must show that the alleged deprivation
was committed by a person acting under color of state
law.” West v. Atkins, 487 U.S. 42, 48 (1988).
Section 1983 is not a source of substantive rights but is a
vehicle for vindicating rights conferred by the U.S.
Constitution or by federal statute. See Baker v.
McCollan, 443 U.S. 137, 145 n.3 (1979). The statute
“creates a species of tort
liability.” Heck v. Humphrey, 512 U.S. 477,
483 (1994). Thus, any bar to suit under the common law
applies to a claim brought under § 1983. Id.
Heck, the Court held a § 1983 malicious
prosecution claim was subject to the common law requirement
that the plaintiff show the prior criminal proceeding
terminated in his favor. Id. at 484. The purpose of
the requirement, the Court explained, is to avoid parallel
litigation of issues such as probable cause and guilt.
Id. It also prevents the claimant from succeeding in
a tort action after having been convicted in the underlying
criminal prosecution, which would run counter to the judicial
policy against creating two conflicting resolutions arising
from the same transaction. Id. Accordingly,
“to recover damages [or other relief] for allegedly
unconstitutional conviction or imprisonment, or for other
harm caused by actions whose unlawfulness would render a
conviction or sentence invalid, a § 1983 plaintiff must
prove that the conviction or sentence has been reversed on
direct appeal, expunged by executive order, declared invalid
by a state tribunal authorized to make such determination, or
called into question by a federal court’s issuance of a
writ of habeas corpus[.]” Id. at 486-87
(footnote and citation omitted); see also Wilkinson v.
Dotson, 544 U.S. 74, 81-82 (2005) (“[A] state
prisoner’s § 1983 action is barred (absent prior
invalidation) - no matter the relief sought (damages or
equitable relief), no matter the target of the
prisoner’s suit (state conduct leading to conviction or
internal prison proceedings) - if success in that action
would necessarily demonstrate the invalidity of confinement
or its duration.” (emphasis omitted)).
noted, the public docket shows that Kinder entered a guilty
plea on July 23, 2019 to the drug charge that arose from
Defendant Marinez’s affidavit of probable cause. Kinder
did not take an appeal from the judgement of conviction and
the time do so has now lapsed. See Commonwealth v.
Kinder, Docket No. CP-06-CR-413-2019 (Berks Cty. Common
Pleas) (recording entry of guilty plea on July 23, 2019); Pa.
R. App. P. 903(a) (providing that a notice of appeal must be
filed “within 30 days after the entry of the order from
which the appeal is taken”). Because the criminal
proceeding did not terminate in Kinder’s favor, his
malicious prosecution claim is barred by Heck since
Kinder’s success in asserting a racial bias claim would
necessarily call that conviction into question.
Accord, Nesblett v. Concord Fed. Prob.,
Civ. A. No. 13-515, 2014 WL 808848, at *4 (D.N.H. Feb. 28,
2014) (collecting cases and concluding that Heck
barred selective prosecution racial bias claim); Swan v.
Barbadoro, Civ. A. No. 060458, 2007 WL 275979 (D.N.H.
Jan. 24, 2007) (recommending that selective prosecution claim
be dismissed on screening pursuant to section 1915A(a)),
report and recommendation adopted, 2007 WL 529707
(Feb. 13, 2007). Accordingly, the claim against Marinez must
be dismissed without prejudice pursuant to §
1915(e)(2)(B)(ii). Should Kinder’s conviction ever be
invalidated he may refile his claim.
appropriate Order follows.