APONTE v. BOROUGH OF POTTSTOWN et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE WENDY BEETLESTONE ON 8/25/17. 8/25/17 ENTERED AND COPIES MAILED TO PRO SE AND E-MAILED.(mbh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
SHANICQUA S. APONTE,
BOROUGH OF POTTSTOWN, MARK
FLANDERS, MONTGOMERY COUNTY
DISTRICT ATTORNEY’S OFFICE,
PENNSYLVANIA, and RICHARD
Pro se Plaintiff Shanicqua Aponte brings this case asserting constitutional due process
claims under 28 U.S.C. § 1983 against Defendants Borough of Pottstown, Pottstown Borough
Manager Mark Flanders, Montgomery County, the Montgomery County District Attorney’s
Office, and Montgomery County Assistant District Attorney Richard Bradbury,1 alleging that all
Defendants unlawfully withheld exculpatory evidence from Plaintiff during a criminal trial in
Montgomery County, in violation of Brady v. Maryland, 373 U.S. 83 (1963). All Defendants
have filed motions to dismiss Plaintiff’s claims. Those motions shall be granted.
According to her Amended Complaint,3 Plaintiff was arrested after a dispute with her
landlord regarding an eviction from her apartment, and subsequently charged with trespassing,
Bradbury is incorrectly named in Plaintiff’s Complaint as “Bradberry” and in her Amended Complaint as
This factual background is drawn from Plaintiff’s Amended Complaint, the exhibits referred to therein (which
were attached to her original Complaint), and public records regarding Plaintiff’s criminal case. See Pension Benefit
Guar. Bd. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993) (noting that a district court’s
consideration of a motion to dismiss is limited to “the allegations contained in the complaint, exhibits attached to the
complaint and matters of public record”).
disorderly conduct, and resisting arrest. In advance of a preliminary hearing in her criminal
matter, Plaintiff requested from prosecutors video footage from thirteen surveillance cameras in
the Pottstown Police Station showing her arrival and detention after her arrest, which she
contends undermines the charges against her. After her request for the footage was denied in
November 2015, she submitted a Right-to-Know request to the Borough of Pottstown (the
“Borough”) and Borough Manager Mark Flanders, seeking the same footage. Her Right-toKnow request was denied in January 2016, and her criminal charges proceeded in the
Montgomery County Court of Common Pleas. She then filed an appeal of the denial of her
Right-to-Know request with the state Office of Open Records (OOR).
In May 2016, Plaintiff requested a continuance of a pre-trial hearing in her criminal trial
so that she could obtain the video. In July 2016, Plaintiff won OOR reversal of the Borough’s
denial of her records request. The following week, Assistant District Attorney Richard Bradbury
met with Borough officials. After that meeting, Plaintiff received a copy of the video from
Bradbury that she claims she could not view. In August 2016, at a second pre-trial conference,
the court ordered the Montgomery County District Attorney’s Office (the “District Attorney’s
Office”) to permit Plaintiff to view the surveillance video. After viewing the video, Plaintiff
requested another continuance, claiming that she had not been shown the entire video footage of
herself at the police station on the day of her arrest. Plaintiff then attempted to speak with
Bradbury’s supervisor about the production of the video, and was allegedly threatened with
Meanwhile, the Borough filed a petition for review of the OOR’s decision in the
Montgomery County Court of Common Pleas. As of the filing of Plaintiff’s Amended
Plaintiff’s Amended Complaint contains the same factual allegations as her original Complaint, but is
supplemented by a more specific articulation of her legal claims.
Complaint in this case, neither the District Attorney’s Office nor the Borough had given Plaintiff
the entire span of surveillance footage that she requested – purportedly more than four hours of
footage, taken from thirteen camera recordings. Instead, Plaintiff alleges, she was shown only
“selected footage” of four shots.
Plaintiff pled guilty to several of the charges against her on February 27, 2017.
“To survive a motion to dismiss, a complaint must contain 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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “In light
of Twombly, it is no longer sufficient to allege mere elements of a cause of action; instead a
complaint must allege facts suggestive of [the proscribed] conduct.” Great W. Mining & Mineral
Co. v. Fox Rothschild LLP, 615 F.3d 159, 177 (3d Cir. 2010) (internal quotation marks omitted).
Following the Supreme Court’s rulings in Twombly and Iqbal, the Third Circuit requires a
two-step analysis when reviewing a Rule 12(b)(6) motion. Edwards v. A.H. Cornell & Son, Inc.,
610 F.3d 217, 219 (3d Cir. 2010). First, a court should separate the factual and legal elements of
a claim, accepting the facts and disregarding the legal conclusions. Fowler v. UPMC Shadyside,
578 F.3d 203, 210-11 (3d Cir. 2009). In doing so, the Court must construe the facts and draw all
reasonable inferences in the light most favorable to the plaintiff. Santomenno ex rel. John
Hancock Trust v. John Hancock Life Ins. Co. (U.S.A.), 768 F.3d 284, 290 (3d Cir. 2014).
In the second step of the analysis, a court must determine whether the well-pled facts
sufficiently show that the plaintiff “has a ‘plausible claim for relief.’” Fowler, 578 F.3d at 211
(quoting Iqbal, 556 U.S. at 679). A plaintiff need not show that success on his or her claims is
probable, but must assert “‘enough facts to raise a reasonable expectation that discovery will
reveal evidence of’” each necessary element in a claim. Phillips v. Cnty. of Allegheny, 515 F.3d
224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556). However, “‘[w]here a complaint
pleads facts that are merely consistent with a defendant’s liability, it stops short of the line
between possibility and plausibility of entitlement to relief.’” Bistrian v. Levi, 696 F.3d 352, 365
(3d Cir. 2012) (quoting Iqbal, 556 U.S. at 678). At bottom, the question is not whether the
claimant “will ultimately prevail . . . but whether [her] complaint [is] sufficient to cross the
federal court’s threshold.” Skinner v. Switzer, 562 U.S. 521, 529-30 (2011) (internal quotation
marks and citations omitted).
Plaintiff’s claims are based on the premise that both Bradbury and Flanders failed to turn
over to Plaintiff exculpatory evidence in advance of her trial (i.e., the police station surveillance
video), in violation of the right articulated in Brady v. Maryland, 373 U.S. 83 (1963). In Brady,
the Supreme Court held that withholding evidence material to either guilt or punishment is a
violation of the Due Process Clause. Id. at 87. Although she has cited the Fifth, Ninth, and
Fourteenth Amendments in her Amended Complaint, only the Fourteenth Amendment provides
an appropriate basis for her claims. The Fifth Amendment applies to federal government action
– not local government actions, which are at issue in this case. See Nguyen v. U.S. Catholic
Conference, 719 F.2d 52, 54 (3d Cir. 1983). And “the Ninth Amendment does not independently
provide a source of individual constitutional rights.” Perry v. Lackawanna Cty. Children &
Youth Servs., 345 F. App’x 723, 726 (3d Cir. 2009). Thus, Plaintiff’s claims fall under only the
Fourteenth Amendment, and, to the extent that Plaintiff has asserted claims under the Fifth and
Ninth Amendments, the claims under those two amendments shall be dismissed with prejudice.
With respect to the Fourteenth Amendment, each Defendant seeks dismissal of Plaintiff’s
claims on a unique basis, so the Court will consider each Defendant’s argument in turn.
A. Richard Bradbury
Bradbury asserts prosecutorial immunity as an absolute defense against Plaintiff’s claims.
Indeed, “[i]t is well settled that prosecutors are entitled to absolute immunity from claims based
on their failure to disclose exculpatory evidence, so long as they did so while functioning in their
prosecutorial capacity.” Yarris v. County of Delaware, 465 F.3d 129, 137 (3d Cir. 2006).
Plaintiff alleges that Bradbury was the prosecutor in her criminal case, and there are no facts in
the Amended Complaint which would plausibly lead to the conclusion that his alleged
withholding of the surveillance video took place outside that prosecutorial role. Bradbury is
therefore entitled to absolute prosecutorial immunity from Plaintiff’s claims, and his motion to
dismiss shall be granted.
B. Montgomery County District Attorney’s Office
The District Attorney’s Office argues that it cannot be held liable for a constitutional
violation under 42 U.S.C. § 1983 because it is not a separate entity from Montgomery County,
and thus is not a “person” that can be sued under section 1983. This position is supported by
Third Circuit precedent that District Attorney’s offices in Pennsylvania are not the proper
defendants in a section 1983 suit. See Reitz v. County of Bucks, 125 F.3d 139, 148 (3d Cir.
1997). Rather, to the extent that the actions of a county’s District Attorney’s office lead to
constitutional violations, the proper defendant is the county itself. Id. The Montgomery County
District Attorney’s Office’s motion to dismiss shall therefore be granted.
C. Montgomery County
Montgomery County argues that the constitutional claim against it must be dismissed
because Plaintiff has failed to plead facts showing a “policy or custom” that caused a deprivation
of constitutional rights, which is required to advance a claim against a municipality under
28 U.S.C. § 1983. See Monell v. Dep’t Social Servs., 436 U.S. 658, 694 (1978). A “policy” is a
“statement, ordinance, regulation, or decision officially adopted and promulgated” by the
municipality. Id. at 690. A “custom” is a practice that is “so permanent and well settled as to
constitute a custom or usage with the force of law.” Id. at 691 (internal quotation marks
Setting aside the question of whether Bradbury’s actions violated the rule set forth in
Brady, the Amended Complaint contains no factual allegations which suggest a policy or
practice on the part of the County to withhold exculpatory evidence from criminal defendants.
Although Plaintiff asserted her “belief” that Montgomery County violated her Fourteenth
Amendment rights by not ordering Bradbury to turn over the entire set of surveillance videos,
she has not identified any particular decision or custom on the part of the County that prevented
Bradbury from releasing the footage. The County’s motion to dismiss Plaintiff’s claim against it
shall therefore be granted.
D. Flanders and the Borough of Pottstown
Flanders and the Borough argue that they cannot be held liable for a Brady violation
because the exculpatory evidence disclosure requirements of Brady apply only to prosecutors,
and Flanders is not a prosecutor. They are correct. While police and other government actors
may face section 1983 liability for failing to disclose exculpatory information to prosecutors,
“the Brady duty to disclose exculpatory evidence to the defendant applies only to a prosecutor.”
Gibson v. Superintendent of N.J. Dep’t of Law and Public Safety-Div. of State Police, 411 F.3d
427, 442 (3d Cir. 2005) (emphasis added). Since Plaintiff’s claim is based on the allegation that
Flanders failed to provide the video to her as a criminal defendant (rather than that he withheld it
from prosecutors), her allegation fails to support a section 1983 claim against Flanders. Given
that Flanders is the only Borough official described in the Amended Complaint, there is also no
basis for a Monell claim against the Borough based on Brady. Flanders and the Borough’s
motion to dismiss shall be granted.4
E. Dismissal With Prejudice
The Third Circuit has “instructed that if a complaint is vulnerable to a [Rule] 12(b)(6)
dismissal, a district court must permit a curative amendment, unless an amendment would be
inequitable or futile.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 236 (3d Cir. 2008). In this
case, amendment would be futile. The claim against Bradbury is foreclosed by prosecutorial
immunity, and the Montgomery County District Attorney’s Office cannot be sued under 28
U.S.C. § 1983 because it is not a distinct entity. Furthermore, neither Flanders nor the Borough
of Pottstown could commit a Brady violation by withholding the video from Plaintiff as a matter
of law. Thus, the defects in Plaintiff’s claims against Bradbury, Flanders, the District Attorney’s
Office, and the Borough could not be cured through an amended pleading.
Amendment of the claim against Montgomery County would also be futile. Although
Plaintiff could theoretically revise her pleading to include facts demonstrating a pattern or
practice of withholding exculpatory evidence from criminal defendants on the part of the County,
To the extent that Plaintiff’s Amended Complaint could be read to allege that the initial denial of her Right-toKnow request violated the Due Process Clause by interfering with Plaintiff’s rights under the Right-to-Know Law,
65 Pa. Stat. § 67.101 et seq., Plaintiff does not advance this argument in response to Defendants’ motion nor has she
identified any authority suggesting that the process for appealing the Borough’s decision was constitutionally
flawed. She has also not pointed to any authority that suggests that access to public records under a Right-to-Know
Law is a “fundamental” property interest that could support a substantive due process claim. See Nicholas v. Pa.
State Univ., 227 F.3d 133, 140 (3d Cir. 2000) (noting that only an extremely limited set of “fundamental” property
interests can support a substantive due process claim).
she is legally foreclosed from successful asserting a Brady violation because her claim amounts
to an attack on the validity of her conviction in state court. Such claims cannot be raised under
section 1983 unless the conviction is “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.” Heck v. Humphrey, 512 U.S.
477, 487 (1994); see also Skinner v. Switzer, 562 U.S. 521, 536 (2011) (“Brady claims have
ranked within the traditional core of habeas corpus and outside the province of § 1983.”). Since
Plaintiff’s Brady claim against the County is a constitutional claim which seeks to undermine the
validity of a conviction that has not been reversed, expunged, or otherwise set aside, there is no
pathway to revive her claim through an amended pleading and it shall be dismissed with
An order follows.
Dated: August 25, 2017
BY THE COURT:
/s/Wendy Beetlestone, J.
WENDY BEETLESTONE, J.
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