FOSTER v. MCLAUGHLIN et al

Filing 9

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE CYNTHIA M. RUFE ON 7/22/2016. 7/27/2016 ENTERED AND COPIES MAILED TO PRO SE AND E-MAILED.(sg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
__________________________________________
RODMEN R. FOSTER,
:
Plaintiff,
:
:
v.
:
CIVIL ACTION NO. 15-6289
:
CAITLIN MCLAUGHLIN, et al.
:
Defendants.
:
__________________________________________
MEMORANDUM OPINION
JULY 22, 2016

RUFE, J.

Plaintiff Rodmen R. Foster brings this pro se civil rights action against Michael Potteiger,
Chairman of the Pennsylvania Board of Probation and Parole, in his official capacity; Caitlin
McLaughlin, Pennsylvania Parole Board Supervisor, in her individual capacity; and Michael
Hernandez, Pennsylvania Parole Board Agent, in his individual capacity, under 42 U.S.C. §
1983. Plaintiff alleges eight causes of action under Pennsylvania Law:1 1) fraudulent
misrepresentation,

(3

counts)

2)

intentional

infliction

of

emotional

distress,

3)

negligence/supervision, 4) revocation hearing untimely, 5) false imprisonment, 6) Respondeat
Superior. Defendant filed a timely motion to dismiss, to which Plaintiff has not responded. For
the following reasons, Defendant’s motion to dismiss will be granted.
I.

FACTUAL ALLEGATIONS2
On November 2, 2013, Plaintiff was arrested by Philadelphia Police and charged with

Driving under the Influence.3 Plaintiff was on parole at the time of arrest.4 Accordingly, the
1

Although Plaintiff styles the claims as being brought under state law, he also alleges that Defendants violated his
right to due process of law pursuant to the United States Constitution.
2

The facts as stated herein are those alleged in the complaint, which are presumed to be true for the purpose of this
motion.
3

Compl. ¶ 12.

Pennsylvania Board of Probation and Parole lodged a warrant against him that same day and,
after conducting a detention hearing on November 26, 2013, detained him pending disposition of
the charges.5
On June 6, 2014, the Municipal Court of Philadelphia County found Plaintiff guilty of
Driving under the Influence.6 He was sentenced to “72 hours, time served to six months
imprisonment with 5 months concurrent probation.”7 On June 19, 2014, Plaintiff appealed the
conviction de novo to the Court of Common Pleas of Philadelphia County. 8 Plaintiff later
withdrew the appeal.9 Plaintiff alleges that he was then allowed to appeal his DUI conviction
nunc pro tunc and that he was permitted to file a writ of certiorari to the Court of Common
Pleas.10 On October 14, 2014, the Court of Common Pleas of Philadelphia County denied the
writ of certiorari.11 Plaintiff subsequently appealed from the denial of the writ to the Superior
Court of Pennsylvania.12
Next, Plaintiff petitioned the Commonwealth Court of Pennsylvania for a writ of
mandamus.13 Plaintiff sought to compel the Parole Board to cancel its warrant and dismiss the

4

Compl. at ¶ 13.

5

Compl. at ¶¶ 13-15.

6

Compl. at ¶ 16.

7

Id.

8

Compl. at ¶ 17.

9

Compl. at ¶ 18.

10

Id.

11

Compl. at ¶ 19.

12

Compl. at ¶ 20.

13

Compl. at ¶ 21.

2

parole violation charges with prejudice for failure to conduct a timely revocation hearing.14 In
light of Plaintiff’s Commonwealth Court filing, the Parole Board notified Plaintiff that a
revocation hearing would not take place until the final disposition of Plaintiff’s appeal.15 Fearful
that he would languish in custody on the Parole Board warrant while awaiting a final disposition
in the appeals process, Plaintiff withdrew his appeal to the Superior Court of Pennsylvania.16
On February 3, 2015, Plaintiff alleges that Defendant Caitlin McLaughlin and Defendant
Michael Hernandez recorded a fraudulent October 14, 2014 conviction date for Plaintiff’s DUI
conviction.17 The document that recorded the event, called a PBP-257-N, Notice of Charges and
Hearing, also listed a February 13, 2015 date for a revocation hearing.18
On February 24, 2015, the Commonwealth Court of Pennsylvania denied Plaintiff’s
petition for mandamus asserting that the Court lacked jurisdiction and that Plaintiff was
attempting to revive lapsed appeal rights.19 Consequently, Plaintiff filed a notice of appeal with
the Supreme Court of Pennsylvania on March 5, 2015.20
Plaintiff alleges that Defendant McLaughlin and Defendant Hernandez then certified a
second PBPP-257N, Notice of Charges and Hearing, as well as a PBPP 257C, Criminal Arrest
and Disposition report.21 According to Plaintiff, both documents list a fraudulent January 26,

14

Id.

15

Compl. at ¶ 22.

16

Compl. at ¶ 23.

17

Compl. at 24.

18

Id.

19

Compl. at ¶ 25.

20

Compl. at ¶26.

21

Compl. at ¶¶ 27-28.

3

2015 conviction date for Plaintiff’s DUI conviction.22 A March 19, 2015 date is also listed for a
revocation hearing. Plaintiff alleges that on the same day in which the second PBPP-257N was
certified, Defendant McLaughlin and Defendant Hernandez certified a PBPP-257H, Supervision
History Form, that records a June 6, 2014 conviction date. This date, according to Plaintiff, is
the correct date of his DUI conviction.23
On March 19, 2015, the Defendant Parole Board conducted Plaintiff’s revocation
hearing.24 Plaintiff alleges the hearing occurred nine months after his DUI conviction was
recorded.25 Plaintiff states that he objected to both the fraudulent October 14, 2014 conviction
date and the January 26, 2015 conviction date and to the revocation hearing being untimely.26
On April 10, 2015, the Defendant Parole Board issued a Parole Violation
Warning/Instruction that directed him to report to 334 E. Chelten Avenue, Philadelphia,
Pennsylvania 19144.27 However, the Parole Board discharged Plaintiff from confinement on
April 12, 2015.28 According to Plaintiff, the Parole Board did not certify a final disposition of
his case.29

22

Id.

23

Compl. at ¶¶ 29-30.

24

Compl. at ¶ 31.

25

Id.

26

Compl. at ¶ 32.

27

Compl. at ¶ 33.

28

Compl. at ¶ 34.

29

Id.

4

On September 29, 2015, the Supreme Court of Pennsylvania affirmed the
Commonwealth Court’s Order.30
II.

LEGAL STANDARD
Pursuant to Federal Rule of Civil Procedure 12(b)(6), dismissal of a complaint for failure

to state a claim upon which relief can be granted is appropriate where a plaintiff’s “plain
statement” lacks enough substance to show that he is entitled to relief.31 In determining whether
a motion to dismiss should be granted, the court must consider only those facts alleged in the
complaint, accepting the allegations as true and drawing all logical inferences in favor of the
non-moving party.32 Courts are not, however, bound to accept as true legal conclusions couched
as factual allegations.33 Something more than a mere possibility of a claim must be alleged;
rather plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.”34
The complaint must set forth “direct or inferential allegations respecting all the material elements
necessary to sustain recovery under some viable legal theory.”35 The court has no duty to
“conjure up unpleaded facts that might turn a frivolous . . . action into a substantial one.”36 Legal

30

Compl. at ¶ 35.

31

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007).

32

ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir. 1994); Fay v. Muhlenberg Coll., No. 07-4516, 2008 WL
205227, at *2 (E.D. Pa. Jan. 24, 2008).
33

Twombly, 550 U.S. at 555, 564.

34

Id. at 570.

35

Id. at 562 (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984)) (internal quotation
marks omitted).
36

Id. (quoting McGregor v. Indus. Excess Landfill, Inc., 856 F.2d 39, 42-43 (6th Cir. 1988)).

5

questions that depend upon a developed factual record are not properly the subject of a motion to
dismiss.37
III.

DISCUSSION
A. Eleventh Amendment
Under the Eleventh Amendment of the United States Constitution, states are immune

from suit by private parties in federal court.38 This immunity extends to state agencies and
departments as well as state officials sued in their official capacity.39 In such instances, the
doctrine applies because the state is the true party in interest. 40 For this reason, and by contrast,
suits against state officials in their personal or individual capacity are not barred by the Eleventh
Amendment.41
Eleventh Amendment sovereign immunity has three exceptions.42 First, suit is permitted
when Congress abrogates immunity and unequivocally expresses its intent to do so pursuant to a
valid exercise of power.43 Secondly, a state may waive its sovereign immunity.44 Third, suit is
permitted against individual state officers for prospective injunctive and declaratory relief to end
ongoing violations of federal law.45 In such instances, the action is not against the state because

37

See, e.g., TriState HVAC Equip., LLP v. Big Belly Solar, Inc., 836 F. Supp. 2d 274 (E.D. Pa. 2011).

38

Tennessee v. Lane, 541 U.S. 509, 517 (2004).

39

Larsen v. State Employees’ Retirement System, 553 F.Supp.2d 403, 411 (M.D. Pa. 2008).

40

Id. at 411.

41

Id.

42

Larsen, 553 F. Supp. 2d at 412.

43

Urella v. Pennsylvania State Troopers Ass’n, 628 F. Supp. 2d 600 (E.D. Pa. 2008).

44

Larsen, 553 F. Supp. 2d at 412.

45

Id.

6

the alleged violation of federal law strips the officer of his official authority. 46 However, the
relief sought must be prospective, declaratory, or injunctive relief governing an officer’s future
conduct.47 It cannot be retrospective, as in the case of monetary damages.48
Here, Plaintiff sued Defendants McLaughlin and Hernandez in their individual capacities,
and sued Defendant Potteiger in his official capacity as Chairman of the Pennsylvania Parole
Board.

Accordingly, eleventh amendment sovereign immunity bars the claims against

Defendant Potteiger only. The claims against Defendants McLaughlin and Hernandez survive
the eleventh amendment sovereign immunity bar because Plaintiff sued them in their individual
capacities.
B. Pennsylvania Sovereign Immunity Act
Pennsylvania’s sovereign immunity statute shields the Commonwealth, its officials, and
its employees acting within the scope of their duties from suit.49

The Commonwealth of

Pennsylvania has explicitly retained its sovereign immunity and has not waived immunity for
intentional torts or claims under the Pennsylvania Constitution, except in nine limited
circumstances: 1) vehicle liability; 2) medical-professional liability; 3) care, custody or control
of personal property; 4) Commonwealth real estate, highway and sidewalks; 5) potholes and
other dangerous conditions; 6) care, custody or control of animals; 7) liquor store sales; 8)

46

Id.

47

Id.

48

Larsen, 553 F. Supp.2d at 412.

49

1 Pa. C.S.A. § 2310.

7

National Guard activities; and 9) toxoids and vaccines.50 Each of these exceptions is strictly
construed.51
In this case, Plaintiff alleges eight causes of action against the Defendant(s): three counts
of fraudulent misrepresentation; one count of intentional infliction of emotional distress; one
count of negligence/supervision; one count for an untimely revocation hearing under
Pennsylvania law; one count of false imprisonment; and one count of respondeat superior.
These are state and not federal causes of action, and while Plaintiff asserts that he is bringing a
civil rights claim under 42 U.S.C. Section 1983, he only alleges one constitutional violation -due
process- that arises under federal law. Count 6 states, rather obscurely, that Defendant Potteiger
violated Plaintiff’s due process when he allegedly failed to conduct a timely parole revocation
hearing. As stated, this claim is barred by Eleventh Amendment sovereign immunity.
Plaintiff also states that he is bringing all remaining claims under “the common law.” In
addition, the elements Plaintiff alleges in his three claims for fraudulent misrepresentation, his
negligence claim, and his intentional infliction of emotional distress claim read as state tort
causes of action. Furthermore, the respondeat superior claim is not a valid cause of action and
Plaintiff’s claim for failure to conduct a timely revocation hearing alleges a violation of
Pennsylvania state law. Finally, Plaintiff’s false imprisonment claim states that the Parole Board
is “under a constitutional mandate to certify a final disposition of Plaintiff’s case, explaining in
writing why Plaintiff was, or was not recommitted as a convicted parole violator. To the extent
such a claim exists, it can only arise under state law, as there is no such requirement under the
federal constitution.

50

42 Pa. C.S.A. § 8522 (b).

51

See Mullin v. Commonwealth, Dep’t of Transp., 582 Pa. 127, 870 A.2d 773, 779 (2005).

8

The Commonwealth has not waived immunity for the torts of which Plaintiff complains.
In addition, they do not fall within any of the exceptions outlined in Pennsylvania’s sovereign
immunity statute. Accordingly, state sovereign immunity bars Plaintiff’s tort law claims against
all Defendants.
IV.

CONCLUSION
For the reasons set forth therein, this Court will dismiss Plaintiff’s complaint. However,

taking into account Plaintiff’s pro se status, the Court will grant leave for Plaintiff to file an
Amended Complaint to remedy the deficiencies explained above. An order will be entered.

9