TALBERT v. COMMONWEALTH OF PENNSYLVANIA et al

Filing 2

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE WENDY BEETLESTONE ON 3/18/16. 3/18/16 ENTERED AND COPIES MAILED TO PRO SE.(gs)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DARREN TALBERT

CIVIL ACTION

v.
COMMONWEALTH OF PENNSYLVANIA,
et al.

FILED

NO. 16-1041

MAR 18 2016
MICHAELE. KUNZ, Clerk
By
Dep. Clerk

fbO

MEMORANDUM
BEETLESTONE, J.

MARCH

1~2016

Plaintiff Darren Talbert, a prisoner at the State Correctional Institution- Greene, alleges
that the defendants conspired to violate his constitutional rights by falsely arresting him,
maliciously prosecuting him, and causing his false conviction and imprisonment. He seeks to
proceed informa pauperis. For the following reasons, the Court will grant plaintiff leave to
proceed informa pauperis, dismiss his federal claims with prejudice pursuant to 28 U.S.C. §
1915(e)(2)(B)(i) and (ii), and dismiss his state law claims for lack of subject matter jurisdiction.
I.

FACTS 1

In July of 2012, plaintiff was arrested by Officer John News after a nine-day investigation
conducted by officers of the Upper Darby Township Narcotics Task Force. Plaintiff was
incarcerated and charged with violating various drug and gun laws in connection with his alleged
sale of heroin to Officer Kristine A. McAleer, who was working undercover, on three occasions.

See Commonwealth v. Talbert, No. 51EDA2014, 2015 WL 7287984, at *1 (Pa. Super. Ct.
2015); see also Commonwealth v. Talbert, Docket Numbers MJ-32246-CR-0000335-2012; MJ32246-CR-0000325-2012. Plaintiff alleges that, "immediately following" his arrest, Officer

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The following facts are taken from the complaint and publicly available dockets for the criminal
proceedings underlying plaintiffs claims.
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Timothy Berhardt planted "material DNA evidence" in the car that plaintiff apparently drove to
the final sale. (Compl. at 8, ~ 21.)
Amato Sanita and Anthony Senfenski initially represented plaintiff in connection with the
criminal charges. Plaintiff alleges that those attorneys "accepted a bribe" from the Delaware
County District Attorney's Office to convince plaintiff to waive his right to a preliminary
hearing. (Id at 8, ~ 22.)
On August 16, 2013, after a trial by jury in the Delaware County Court of Common Pleas
presided over by the Honorable Mary Alice Brennan, plaintiff was acquitted of one charge of
possession with intent to distribute with respect to one of the drug sales, and convicted of the
remaining charges. See Talbert, 2015 WL 7287984, at *l; Commonwealth v. Talbert, Docket
Number CP-23-CR-0004677-2012; Commonwealth v. Talbert, CP-23-CR-0004680-2012. Shaka
Johnson represented plaintiff at trial. Plaintiff alleges that Johnson conspired with Assistant
District Attorney Michael Mattson, who prosecuted the charges, and Judge Brennan to permit the
introduction of false and/or illegally obtained evidence at trial-including lab submissions,
affidavits, search warrants, arrest warrants, and forensic reports-in an effort to bring about
plaintiffs conviction. He further alleges that Judge Brennan issued orders and/or made rulings
to facilitate his unlawful conviction, and acted as a "Super Prosecutor." (Compl. at 9, ~ 25.)
After he was sentenced, plaintiff appealed his convictions to the Pennsylvania Superior
Court. Todd Mosser represented plaintiff on appeal while Assistant District Attorney D. Daniel
Woody represented the Commonwealth. Plaintiff alleges that the Delaware County District
Attorney's Office "unlawfully influenced" Mosser to "circumvent the litigation upon appeal for
the benefit of the Commonwealth's interest." (Id at 13, ~ 33.) The Pennsylvania Superior Court
affirmed plaintiffs convictions and vacated his sentence. See Talbert, 2015 WL 7287984, at *1.

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Plaintiff was resentenced on January 25, 2016. He subsequently filed a petition for postconviction relief, which remains pending in the Delaware County Court of Common Pleas.
On February 24, 2016, plaintiff initiated this civil action based on his alleged false arrest,
malicious prosecution, unlawful conviction, and imprisonment based on false evidence. 2 He
named twenty defendants: (1) the Commonwealth of Pennsylvania; (2) Delaware County; (3)
John, J. Whelan, the Delaware County District Attorney; (4) Judge Brennan; (5) Assistant
District Attorney Mattson; (6) Shaka Johnson; (7) Todd Mosser; (8) Assistant District Attorney
Woody; (9) Amato Sanita; (10) Anthony Stefenski; (11) Officer McAleer; (12) Officer Berhardt;
(13) Officer News; (14) Brad A. Ross, a police officer; (15) Jeff Deitz, a Pennsylvania State
Trooper; (16) Christine Brennan, a ballistics expert at the Pennsylvania State Police Crime Lab;
(17) Cecilia Cacciola, a Manager at the Lima Regional Laboratory; (18) Irena B. Eleshkovitch, a
forensic scientist with the Lima Regional Laboratory; (19) Alice Marlin, a forensic scientist with
the Lima Regional Laboratory; and (20) a John/Jane Doe confidential informant working with
the Upper Darby Township Police Department.
Underlying the majority of plaintiffs claims is his allegation that "during [his] criminal trial
the defendants joined in a clandestine conspiracy to violate [his] right to due process and a fair
trial, including through method of enterprise corruption within the Delaware County Criminal
Court/Justice System." (Compl. at 1.) He brings federal claims pursuant to 42 U.S.C. §§ 1983,
1985(3) & 1986 and the Racketeer Influenced and Corrupt Organizations Act (RICO), and state
law claims for intentional infliction of emotional distress. Plaintiff primarily seeks damages.

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Pursuant to the prison mailbox rule, a prisoner's complaint is considered filed at the time he
hands it over to prison authorities for forwarding to the Court. See Houston v. Lack, 487 U.S.
266, 276 (1988). The complaint does not reflect when plaintiff delivered it to prison authorities
for mailing, but it is dated February 24, 2016, and was received by the Court on March 3, 2016.
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II.

STANDARD OF REVIEW

The Court grants plaintiff leave to proceed in forma pauperis because it appears that he is
incapable of paying the fees to initiate this civil action. Accordingly, 28 U.S.C. §
1915(e)(2)(B)(i) and (ii) apply, which require the Court to dismiss the complaint if it is frivolous
or fails to state a claim. A complaint is frivolous if it "lacks an arguable basis either in law or in
fact," Neitzke 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). 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 l 2(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). Additionally, the Court may dismiss claims based on an affirmative
defense if the affirmative defense is obvious from the face of the complaint. See Fogle v.

Pierson, 435 F.3d 1252, 1258 (10th Cir. 2006); cf Ball v. Famiglio, 726 F.3d 448, 459 (3d Cir.
2013). As plaintiff is proceeding prose, the Court construes his allegations liberally. Higgs v.

Att'y Gen., 655 F.3d 333, 339 (3d Cir. 2011).
III.

DISCUSSION
A. RICO Claims
Plaintiff cannot state a RICO claim based on his alleged wrongful arrest, prosecution,

conviction, and imprisonment. The federal civil RICO statute provides that "[a]ny person
injured in his business or property by reason of a violation of section 1962 of this chapter[, which
prohibits racketeering activity,] may sue therefor in any appropriate United States district court.

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... " 18 U.S.C. § 1964(c). "[I]n construing the federal RICO law, [the Third] Circuit has
rejected the argument that personal injuries qualify as RICO injuries to 'business or property."'
Williams v. BASF Catalysts LLC, 765 F.3d 306, 323 (3d Cir. 2014) (citing Maio v. Aetna, Inc.,
221F.3d472, 492 (3d Cir. 2000)). Accordingly, plaintiff cannot state a RICO claim because any
injuries he sustained by virtue of his arrest, conviction, and imprisonment are not injuries to
"business or property" for purposes of RICO. See, e.g., Etti ben-Issaschar v. ELI Am. Friends of
the Israel Ass'nfor Child Prof., Inc., No. CV 15-6441, 2016 WL 97682, at *3 (E.D. Pa. Jan. 7,
2016) ("The type of harm suffered by [plaintiff] for which she seeks to recover in this actioni.e., harm related to her detention and the alleged abuse she suffered while detained-is not an
injury to 'business or property' that is cognizable under the RICO laws."); Clark v. Conahan,
737 F. Supp. 2d 239, 255 (M.D. Pa. 2010) ("A injury 'by nature of mental distress' is not
sufficient to claim damage to business or property.").

B. Section 1983 Claims
The majority of plaintiff's§ 1983 claims fail because they are in essence an attack on
conviction and imprisonment that is not cognizable under the civil rights laws. In Heck v.
Humphrey, the Supreme Court held that "to recover damages 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[.]" Heckv. Humphrey, 512 U.S. 477, 486-87 (1994)
(footnote and citation omitted); see also Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005)
(observing that the principle announced in Heck extends to other requests for relief that would

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imply the invalidity of an intact conviction). Plaintiffs convictions have not been vacated or
otherwise invalidated. Accordingly, to the extent plaintiff alleges that the defendants falsified
evidence that led to his conviction, conspired to deprive him of a fair trial, or otherwise violated
his constitutional rights in a manner that led to his conviction and imprisonment, his claims are
legally baseless because success on those claims would necessarily imply the invalidity of his
convictions. 3 If plaintiff seeks to challenge the constitutionality of his convictions in federal
court, he must do so by filing a petition for a writ of habeas corpus after exhausting state
remedies. See 28 U.S.C. § 2254.
To the extent that success on plaintiffs false arrest claims or any related false imprisonment
claims would not necessarily imply the invalidity of his convictions, those claims are timebarred. Pennsylvania's two-year statute of limitations applies to plaintiffs§ 1983 claims. See
42 Pa. Cons. Stat. § 5524; Wallace v. Kato, 549 U.S. 384, 387 (2007). "[T]he statute of
limitations upon a§ 1983 claim seeking damages for a false arrest in violation of the Fourth
Amendment, where the arrest is followed by criminal proceedings, begins to run at the time the
claimant becomes detained pursuant to legal process." Wallace, 549 U.S. at 397. The dockets
for plaintiffs criminal cases reflect that he was arraigned in July of2012. See Commonwealth v.
Talbert, Docket Numbers MJ-32246-CR-0000335-2012; MJ-32246-CR-0000325-2012. As he

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There are other reasons why plaintiffs claims fail. District Attorney Whelan, Assistant District
Attorney Mattson, and Assistant District Attorney Woody are entitled to absolute prosecutorial
immunity from claims based on their prosecution of the Commonwealth's case against plaintiff.
See Imbler v. Pactman, 424 U.S. 409, 430 (1976); see also Van de Kamp v. Goldstein, 555 U.S.
335, 349 (2009). Judge Brennan is entitled to absolute judicial immunity from plaintiffs claims
because they are based on acts she took in her judicial capacity while presiding over plaintiff's
criminal case. See Stump v. Sparkman, 435 U.S. 349, 355-56 (1978). Furthermore, the
Commonwealth of Pennsylvania is not a "person" for purposes of§ 1983 and, in any event, is
entitled to Eleventh Amendment immunity from plaintiff's claims. See Will v. Mich. Dep 't of
State Police, 491 U.S. 58, 65-66 (1989).
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did not file this action until February of 2016, long after the two-year limitations period expired,
his claims are time barred.
To the extent plaintiff alleges malicious prosecution based on the charge of which he was
acquitted, such that success on his § 1983 claim would not necessarily undermine the validity of
an intact conviction, his malicious prosecution claim still fails. To prevail on a malicious
prosecution claim, a plaintiff must establish, among other things, that the criminal proceeding in
question terminated in his favor. See Kassler v. Crisanti, 564 F.3d 181, 186 (3d Cir. 2009) (en
bane). "[U]pon examination of the entire criminal proceeding, the judgment must indicate the
plaintiffs innocence of the alleged misconduct underlying the offenses charged" for favorable
termination to exist. Id. at 188. The two-year statute oflimitations on plaintiffs malicious
prosecution claim accrued when he had a full and complete cause of action, that is, when the
criminal proceeding in question terminated in his favor. See 42 Pa. Cons. Stat.§ 5524; Dique v.

NJ State Police, 603 F.3d 181, 185 (3d Cir. 2010); Rose v. Bartle, 871F.2d331, 349 (3d Cir.
1989). Here, if the charge for which plaintiff was acquitted aimed to punish the same
misconduct as charges of which he was convicted, then plaintiff cannot establish that the
proceeding terminated in his favor so as to establish a malicious prosecution claim. On the other
hand, if plaintiff can establish favorable termination, his malicious prosecution claim is timebarred because he was acquitted in August of 2013, more than two years before he filed this
lawsuit. Either way, plaintiff cannot prevail on his claim.

C. Section 1985(3) and 1986 Claims
Plaintiffs§§ 1985 and 1986 claims fail because, for the most part, they are attacks on
plaintiffs conviction and imprisonment that are barred by Heck. See Zhai v. Cedar Grove

Municipality, 183 F. App'x 253, 255 (3d Cir. 2006) (per curiam) (principle announced in Heck

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applies to§§ 1985 and 1986 claims). In any event, plaintiff has not stated a claim under those
provisions because the complaint does not plausibly suggest that the alleged conspiracy against
plaintiff was motivated by racial or class-based discriminatory animus. See Lake v. Arnold, 112
F.3d 682, 685 (3d Cir. 1997) ("[T]o state a claim under 42 U.S.C. § 1985(3), a plaintiff must
allege: (1) a conspiracy; (2) motivated by a racial or class based discriminatory animus designed
to deprive, directly or indirectly, any person or class of persons to the equal protection of the
laws; (3) an act in furtherance of the conspiracy; and (4) an injury to person or property or the
deprivation of any right or privilege of a citizen of the United States."); Clark v. Clabaugh, 20
F.3d 1290, 1295 n. 5 (3d Cir.1994) (failure to state a§ 1985 claim is fatal to his§ 1986 claim).

D. Intentional Infliction of Emotional Distress
As the Court has dismissed all of plaintiffs federal claims, the only independent basis for
jurisdiction over plaintiffs intentional infliction of emotional distress claims is 28 U.S.C. §
1332(a). 4 That provision grants a district court jurisdiction over a case in which "the matter in
controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between
... citizens of different States." The Court cannot exercise diversity jurisdiction over this case
because the complaint fails to establish that the parties are diverse. See Washington v. Hovensa

LLC, 652 F.3d 340, 344 (3d Cir. 2011) (an individual is a citizen of the state where he is
domiciled, meaning the state where he is physically present and intends to remain); Pierro v.

Kugel, 386 F. App'x 308, 309 (3d Cir. 2010) (a prisoner is presumed to be a citizen of the state
where he was domiciled prior to his imprisonment).

The Court will not exercise supplemental jurisdiction, having dismissed all of plaintiffs federal
claims.

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IV.

CONCLUSION

For the foregoing reasons, the Court will dismiss plaintiffs federal claims with prejudice,
pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii). The Court will dismiss plaintiffs state claims
for lack of subject matter jurisdiction. Plaintiff will not be given leave to amend because it
appears that amendment would be futile. An appropriate order follows.

WENDY BEETLESTONE, J.

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