RODRIGUEZ v. SALUS et al

Filing 10

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE JOEL H. SLOMSKY ON 3/12/15. 3/12/15 ENTERED AND COPIES MAILED TO PRO SE PETITIONER AND FAXED TO SUPERINTENDENT SCI FOREST. (jpd)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
VICTOR MANUEL RODRIGUEZ

CIVIL ACTION

v.
NO. 14-6637

SAMUEL SALUS, et al.
MEMORANDUM

MARCH

SLOMSKY,J.

'2015

Plaintiff Victor Manuel Rodriguez, a prisoner at the State Correctional Institution at
Forest, brings this civil rights action based on allegations that the defendants caused him to be
falsely convicted and imprisoned. He seeks leave to proceed informa pauperis. For the
following reasons, the Court will grant plaintiff leave to proceed in forma pauperis and dismiss
his complaint with prejudice as legally frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
I.

FACTS 1

In 1996, plaintiff was arrested and charged with first-degree murder in Montgomery
County. The prosecution alleged that plaintiff ordered a hit on the victim in his capacity as the
leader of a gang, the Latin Kings. Judge Samuel Salus of the Montgomery County Court of
Common Pleas, who was assigned to plaintiffs case, appointed Xavier Hayden to represent
plaintiff. Hayden sought a continuance before trial because he needed additional time to prepare,
but Judge Salus required him to proceed with jury selection.
Plaintiff was convicted after a trial, based in part on the testimony of Police Officer Fidel
Balan, who Judge Salus certified as an expert on gang activity at the request of the prosecutor,
Joseph P. Mascaro. Officer Balan testified that plaintiff was a member of the Latin Kings.
1 The

£ollow1ng £acts are taken trom the complaint, documents attached to the complaint, and
publicly available dockets from plaintiffs underlying criminal and habeas proceedings.
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Plaintiff alleges that his father could have provided testimony rebutting the allegation that he was
a gang member, but Attorney Hayden allegedly refused to call plaintiffs father as a witness or
impeach the Commonwealth's witnesses. Plaintiff further alleges that Angel Hernandez, the
brother of his co-defendant, threatened witnesses in an effort to have them change their
testimony and inculpate plaintiff. Mascaro was apparently aware of this plot because he had
charged Hernandez with witness tampering. However, the charges against Hernandez were
dropped after plaintiff was convicted.
Judge Salus sentenced plaintiff to life imprisonment without parole. Plaintiff contends
that his sentence is unlawful, apparently because the statutes for the crime of murder were not
"carried over as required under legislative mandates when amendment(s) of criminal statutes
were implemented by that Legislature, which , by the failure to do so, invalidates any such
amended statutes as having force or effect." (Compl. if 46.) Attorney Walter Dunsmore was
appointed to represent plaintiff on appeal, but Dunsmore did not challenge the legality of
plaintiffs sentence. The Pennsylvania Superior Court affirmed plaintiffs conviction and
sentence, and the Pennsylvania Supreme Court denied his petition for allocator.
Plaintiff filed a petition for post-conviction relief. Attorney Francis M. Walsh was
appointed as counsel, while Mary Killinger represented the Commonwealth in connection with
the post-conviction proceedings. Plaintiff alleges that, as with his other attorneys, Walsh failed
to challenge his sentence. He also alleges that the proceedings were unreasonably delayed due to
Judge Salus's retirement and Walsh's neglect. At some point, Judge Richard J. Hodgson was
assigned to the case and plaintiff retained a new attorney, James Owens. Several evidentiary
hearings were held on plaintiffs petition, which allegedly revealed that Hernandez tampered
with witnesses and that Mascaro and Judge Salus were aware of that fact. Nevertheless, Judge

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Hodgson denied post-conviction relief. Plaintiff appealed to the Superior Court but that court
affirmed Judge Hodgson's ruling. The Pennsylvania Supreme Court denied allocator. Plaintiff
subsequently sought habeas relief in federal court, without success. See Rodriguez v. Barone,
E.D. Pa. Civ. A. No. 09-270. His subsequent efforts to overturn his conviction have also been
unsuccessful. Additionally, plaintiff claims that a certified copy of his sentencing order shows
that he is being held without lawful authority, even though the copy attached to his complaint
confirms that he was sentenced to life imprisonment without parole.
Based on those facts, plaintiff brings this lawsuit claiming that his constitutional rights were
violated in connection with his prosecution, conviction, and incarceration. He named the
following individuals as defendants: Judge Salus; Mascaro; Mary Fitipaldi, another prosecutor;
Killinger; Judge Hodgson; Dunsmore; Hayden; Walsh; Owens; Officer Balan; Hernandez; and
several panels of judges who ruled on his state court appeals and petitions for allocator. He
essentially claims that all of the defendants were complicit in a plot to prosecute and convict him
for a crime he did not commit, deny him the ability to overturn that illegal conviction, and
require him to serve an illegal sentence in connection with that conviction. He cites 18 U.S.C.
§§ 241 & 242 as the basis for his claims. Plaintiff seeks "immediate release from unlawful
custody," monetary damages, criminal prosecution of the defendants, and an injunction
prohibiting any future incarceration.

II.

STANDARD OF REVIEW

The Court will grant plaintiff leave to proceed in forma pauperis because he has satisfied the
requirements set forth in 28 U.S.C. § 1915. As plaintiff is proceeding in forma pauperis, 28
U.S.C. § 1915(e)(2)(B)(i) applies, which requires the Court to dismiss the complaint if it is
frivolous. A complaint is frivolous if it "lacks an arguable basis either in law or in fact," Neitzke

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v. Williams, 490 U.S. 319, 325 (1989), and is legally baseless ifit is "based on an indisputably
meritless legal theory." Deutsch v. United States, 67 F.3d 1080, 1085 (3d Cir. 1995). As
plaintiff is proceeding prose, the Court must construe his allegations liberally. Higgs v. Att'y

Gen., 655 F.3d 333, 339 (3d Cir. 2011).

III.

DISCUSSION

To the extent plaintiff is bringing claims under 18 U.S.C. §§ 241 & 242, and seeking the
initiation of criminal charges against the defendants, his claims are dismissed as legally frivolous
because those criminal statutes are "inapplicable" to this civil suit and because plaintiff has no
right to the initiation of criminal proceedings against another. See Bullard v. Bureau of

Unemployment and Allowances, 516 F. App'x 111, 112 n.3 (3d Cir. 2013) (per curiam); see also
Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (observing that a "private citizen lacks a
judicially cognizable interest in the prosecution or nonprosecution of another"); Godfrey v.

Pennsylvania, 525 F. App'x 78, 80 n.1 (3d Cir. 2013) (per curiam) ("[T]here is no federal right
to require the government to initiate criminal proceedings.").
Even ifthe Court construes the complaint as raising claims under 42 U.S.C. § 1983,
plaintiffs claims still fail. "[W]hen a state prisoner is challenging the very fact or duration of his
physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate
release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas
corpus." See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). Furthermore, "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

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determination, or called into question by a federal court's issuance of a writ of habeas corpus[.]"
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) (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)). As it is apparent from the complaint that
plaintiff is seeking release from imprisonment, challenging convictions and imprisonment that
have not been invalidated, and/or raising claims that would necessarily imply the invalidity of his
convictions and sentence, his claims are not cognizable in a civil rights action.2
IV.

CONCLUSION

For the foregoing reasons, the complaint will be dismissed with prejudice as legally
frivolous, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). As plaintiff cannot cure the deficiencies in
his claims, amendment would be futile. An appropriate order follows, which shall be docketed
separately.

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There are several other problems with plaintiffs complaint. The judges named as defendants
are entitled to absolute judicial immunity because plaintiffs claims are based on acts they took
in their judicial capacity while presiding over plaintiffs criminal and post-conviction
proceedings. See Stump v. Sparkman, 435 U.S. 349, 355-56 (1978); Azubuko v. Royal, 443 F.3d
302, 303-04 (3d Cir. 2006) (per curiam). Similarly, prosecutors are entitled to absolute
immunity from claims for damages based on acts or omissions in connection with their
prosecution of the Commonwealth's case against plaintiff, and Officer Balan is entitled to
absolute immunity from claims based on his testimony at trial. See Briscoe v. LaHue, 460 U.S.
325, 326 (1983); Imbler v. Pactman, 424 U.S. 409, 430 (1976). Finally, plaintiffs challenge to
his sentence-which appears to be that Pennsylvania's sentencing scheme is somehow invalidis legally frivolous.
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