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Jordan v. Hofsommer

United States District Court, M.D. Pennsylvania

December 11, 2019

TEVIN JORDAN, Plaintiff
v.
DONALD HOFSOMMER, et al., Defendants

          MANNION, D.J.

          REPORT AND RECOMMENDATION

          William I. Arbuckle, U.S. Magistrate Judge.

         I. INTRODUCTION

         On October 7, 2019, Tevin Jordan (“Plaintiff”), a state prisoner proceeding pro se, filed a civil rights complaint against the following Defendants: Scranton Police Officer Donald Hofsommer, Lackawanna County District Attorney Mark Powell, and Lackawanna County. (Doc. 1). Along with his Complaint, Plaintiff filed a Motion requesting leave to file in forma pauperis. (Doc. 2).

         Plaintiff has been granted leave to proceed in forma pauperis. Because he is proceeding in forma pauperis, Plaintiff is subject to the screening provisions in 28 U.S.C. § 1915(e). See Atamian v. Burns, 236 Fed.Appx. 753, 755 (3d Cir. 2007) (“the screening procedures set forth in 28 U.S.C. § 1915(e) apply to in forma pauperis complaints filed by prisoners and non-prisoners alike”). Under this statute, the Court is required to dismiss any action that is frivolous or malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). See Collins v. Cundy, 603 F.2d 825, 828 (10th Cir. 1979) (“[T]here is no constitutional right to the expenditure of public funds and the valuable time of federal courts to prosecute an action which is totally without merit.”).

         After reviewing Plaintiff's Complaint, I conclude that it fails to state a claim upon which relief may be granted. Granting Plaintiff leave to amend would be futile. Thus, I RECOMMEND that Plaintiff's Complaint be DISMISSED.

         II. BACKGROUND & PROCEDURAL HISTORY

         According to his Complaint, Plaintiff is a prisoner at Lackawanna County Prison. (Doc. 1, p. 2). On July 5, 2019, Defendant Officer Hofsommer claims to have observed the following events near 629 Pittston Ave in Scranton:

On this day at 1228hrs I was on a dispatched call at the CIC for a 302 warrant service. While on scene I was informed that a black male was seen riding the stolen bike in the area of the Downtown Deli. We completed the warrant service and were walking back to our vehicles when the suspect, later id as Tevin Jordan, pulled up onto the front porch area of the CIC. I immediately recognized the bike as the one described to me from the burglary. I attempted to get the males attention and asked to speak with him. He jumped back on the bike and pulled away traveling towards Providence RD. We gave chase notifying communications and other units. The male was picked up in motion by Capt. Lukasewicz and followed into Redners parking lot. The male proceeded down side 2 of the building. At that time he bailed off the bike and fled on foot down a trail towards the river. Myself and the Captain persued (sic) and could hear him crashing through the brush on the embankment of the river. We notified responding units and set up a perimeter. K9 officer Marino arrived on scene. We proceeded to track the suspect at the wood line of the walking trail. The embankment was to (sic) steep for a safe descent. We doubled back and proceeded into the river and followed it up river. At that time K9 made contact with the suspect on the bank. He was ordered down and placed in custody. Cuffs double locked. We escorted him back down river where he was assisted out of the river and transported to HQ. The bike was taken to HQ by the Captain for evidentiary purposes. Charges for Receiving and theft will be issued, Nothing further to report.

Id. at pp. 3-4.

         Defendant Officer Hofsommer arrested Plaintiff. Id. According to Plaintiff, Defendant Officer Hofsommer did not have probable cause to make the arrest. Id. Charges were filed against Plaintiff in Lackawanna County. Id. at pp. 2-4. Plaintiff's Lackawanna County Docket can be found at Docket No. CP-35-CR-0002538-2019.

         On October 7, 2019, Plaintiff filed his Complaint (Doc. 1). In his Complaint, Plaintiff names the following as defendants: Scranton Police Officer Donald Hofsommer, Lackawanna County District Attorney Mark Powell, and Lackawanna County.

         In his Complaint, Plaintiff alleges that Defendant Officer Hofsommer arrested him without probable cause. (Doc. 1, p. 2). In the Police Criminal Complaint (PCC), Defendant Officer Hofsommer alleges four (4) counts against Plaintiff: (1) Receiving Stolen Property; (2) Theft by Unlawful Taking-Movable MV-Trucks and buses; (3) Burglary-Not Adapted for Overnight Accommodation, No. Person Present-Forcible Entry; and (4) Criminal Trespass- Enter Structure. Id. at pp. 9-10.

         Regarding Charge 1, Plaintiff argues: “No where in the affidavit do (sic) it state that I knew that the bike was stolen or that I was questioned about a bike or anything.” Id. at p. 9. As for Charge 2, Plaintiff argues: “Nowhere in the affidavit do (sic) it contain (sic) information that I took possession of a stolen bike. Lack of sufficient evidence. Dismiss charge.” Id. As for Charge 3, Plaintiff, argues: “Insufficient evidence. This charge does not have an accompanying affidavit establishing probable cause for this charge.” Id. at p. 10. Finally, as to Charge Four, Plaintiff argues: “The affidavit do (sic) not contain information of a forced entry or the defendant broke into 629 Pittson (sic). Dismiss charges for insufficient.” Id.

         Plaintiff alleges that “these four offenses above is (sic) without an accompanying affidavit establishing probable cause for these 4 offenses and this violates due process rights of the [P]laintiff.” Id. at p. 3. Plaintiff alleges “Hofsommer and Attorney Powell actions of depriving the plaintiff of his liberty knowing the arrest was without probable cause and the imprisonment is without due process, notice, and was not wihin (sic) the scope of their employment.” Id. at p. 4.

         Plaintiff alleges numerous Causes of Action, including:

(1) Count I: False Arrest claim against Defendants Lackawanna County and Officer Hofsommer;
(2) Count II: False Imprisonment claim against Defendants District Attorney Powell and Officer Hofsommer;
(3) Count III: Monell claim against Defendant Lackawanna County;
(4) Count IV: Malicious Prosecution claim against Defendant District ...

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