Murphy v. Bloom et al
Filing
67
MEMORANDUM (eo, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JAMES E. MURPHY,
Plaintiff,
v.
DARYL F. BLOOM, et al.,
Defendants.
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CIVIL NO. 1:10-CV-1757
Hon. John E. Jones III
MEMORANDUM
May 26, 2011
THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:
Plaintiff James E. Murphy (“Plaintiff” or “Murphy”), a federal inmate presently
confined at the Federal Correctional Institution Cumberland (“FCI Cumberland”) in
Cumberland, Maryland, initiated the above action pro se by filing a Bivens1-styled
Complaint under the provisions of 28 U.S.C. § 1331. (Doc. 1.) Before service of the
Complaint was directed, on September 30, 2010, Murphy filed an Amended
Complaint. (Doc. 15.) Named as Defendants are Assistant United States Attorney
1
Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
Bivens actions are the federal counterpart to § 1983 claims brought against state officials. Egervary
v. Young, 366 F.3d 238, 246 (3d Cir. 2004) (citing Brown v. Philip Morris Inc., 250 F.3d 789, 800
(3d Cir. 2001)). “[C]ourts have generally relied upon the principles developed in the case law
applying section 1983 to establish the outer perimeters of a Bivens claim against federal officials.”
Schrob v. Catterson, 948 F.2d 1402, 1409 (3d Cir. 1991).
(“AUSA”) Daryl F. Bloom; United States Court Reporter Wendy Yinger; and
Murphy’s defense attorneys, Dennis E. Boyle, Esquire and Gerald A. Lord, Esquire.
Presently before the Court are Motions to Dismiss the Amended Complaint
filed pursuant to Federal Rule of Civil Procedure 12(b)(6) on behalf of Defendants
Bloom and Yinger (Doc. 27); Defendant Lord (Doc. 33); and Defendant Boyle (Doc.
44). Also pending is Plaintiff’s “Motion to Amend and Supplement the Pleadings”.
(Doc. 59.) For the reasons set forth below, the Motions to Dismiss will be granted,
and Plaintiff’s Motion requesting the opportunity to amend and/or supplement his
Amended Complaint will be denied as futile.
I.
BACKGROUND
A.
Factual Background
On December 10, 2008, Murphy was indicted in the United States District
Court for the Middle District of Pennsylvania on two counts: conspiracy to distribute
cocaine base and conspiracy to distribute, or conspiracy to possess with intent to
distribute, heroin in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iii), 846. (See USA
v. Murphy, Criminal No. 1:08-CR-00433-WWC-1, Doc. 1.) AUSA Bloom was the
prosecutor.
On July 14, 2009, a jury found Murphy guilty of the charges. (Id., Doc. 63.)
2
Dennis E. Boyle, Esquire entered an appearance on Murphy’s behalf on February 24,
2009 (id., Doc. 24) and was Murphy’s counsel at the time of trial. In a motion filed on
September 4, 2009, Murphy sought new counsel to represent him, and Gerald A. Lord,
Esquire was appointed to defend him. (Id., Docs. 68, 69.) Thereafter, on December 8,
2009 and March 22, 2010, before Murphy was sentenced, the official transcripts of his
criminal trial were filed by United States Court Reporter Wendy Yinger. (Id., Docs.
75, 77, 87, 88.)
On March 19, 2010, Murphy filed a motion seeking to have Attorney Lord
removed as his counsel. (Id., Doc. 86.) On April 14, 2010, Attorney Lord also moved
to withdraw as counsel. (Id., Doc. 93.) Following a hearing on May 6, 2010, the trial
judge denied Lord’s motion to withdraw. (Id., Docs. 98, 101.) The May 14, 2010
Order denying the motion noted that, at hearing, Lord stated that he had a fundamental
disagreement with Murphy because Murphy wanted him to pursue claims that AUSA
Bloom and Ms. Yinger committed fraud in connection with the accuracy of the trial
transcript.2 (Id., Doc. 101.)
On May 24, 2010, before he was sentenced, Murphy filed a petition for writ of
2
On May 12, 2010, Murphy filed pro se a motion in which he sought, inter alia, to have the
trial record reconstructed based on his allegation that the trial transcript had been altered, and in
which he alleged that AUSA Bloom had elicited perjured grand jury and trial testimony. (USA v.
Murphy, Criminal No. 1:08-CR-00433-WWC-1, Doc. 100.)
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habeas corpus under the provisions of 28 U.S.C. § 2241, which was assigned to this
Member of the Court. (Murphy v. Wetzel, Civil No. 1:10-CV-1107, Doc. 1.) By
Memorandum and Order dated May 27, 2010, we dismissed the petition for lack of
jurisdiction, and in our Memorandum, we noted that Murphy could raise his issues
through direct appeal, and after his judgment of conviction became final, through a
motion filed under the provisions of 28 U.S.C. § 2255. (Id., Docs. 5, 6.) Murphy
appealed our Memorandum and Order to the United States Court of Appeals for the
Third Circuit, and in an Opinion and Order dated October 12, 2010, and entered on
December 9, 2010, the dismissal for lack of jurisdiction was affirmed. (Id., Docs. 9,
9-1.)
On June 22, 2010, Murphy was sentenced in his criminal case to 360 months
imprisonment, five (5) years supervised release, and to pay various assessments and
fines. (See USA v. Murphy, Criminal No. 1:08-CR-00433-WWC-1, Doc. 120.)
Murphy filed a direct appeal from his conviction and sentence, which, as of the date of
this Memorandum, remains at the briefing stage as Murphy’s brief is due on June 30,
2011. (See USA v. Murphy, Third Circuit Court of Appeals Docket No. 10-2896.3)
B.
Procedural Background
3
See United States Court of Appeals for the Third Circuit General Docket, available at
http://www.pacer.gov.
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Murphy filed the instant action on August 20, 2010. Before service of the
Complaint was directed, on September 30, 2010, Murphy filed an Amended
Complaint. (Doc. 15.) By Order dated October 13, 2010, service of the Amended
Complaint was directed. (Doc. 18.) On December 7, 2010, a Motion to Dismiss the
Amended Complaint was filed on behalf of Defendants Bloom and Yinger. (Doc. 27.)
A supporting brief simultaneously was filed. (Doc. 28.)
On December 17, 2010, a Motion to Dismiss the Amended Complaint was filed
on behalf of Defendant Lord. (Doc. 33.) A supporting brief was filed on December
20, 2010. (Doc. 35.) On the same date, Plaintiff filed a Motion seeking an extension
of time to file his opposition to the Motions to Dismiss. (Doc. 36.) By Order dated
December 21, 2010, his request was granted, and he was directed to file his opposition
on or before January 20, 2011 (Doc. 42). On January 10, 2011, Murphy filed a brief
containing his opposition both to the Motion filed on behalf of Bloom and Yinger and
the Motion filed on behalf of Lord. (Doc. 52.)
On December 28, 2010, a Motion to Dismiss the Amended Complaint was filed
on behalf of Defendant Boyle. (Doc. 44.) A supporting brief was filed on January 11,
2011. (Doc. 53.) By Order dated February 10, 2011, we directed Plaintiff to file his
opposition to Boyle’s Motion on or before February 24, 2011. (Doc. 63.) On March
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8, 2011, Plaintiff filed his opposition brief. (Doc. 65.) Accordingly, the Motions to
Dismiss are fully briefed and ripe for disposition.
In addition, on January 27, 2011, Murphy filed a “Motion to Amend and
Supplement the Pleadings” (Doc. 59) along with a supporting brief (Doc. 60). On
February 9, 2011, a brief in opposition to Murphy’s Motion was filed on behalf of
Defendants Bloom and Yinger. (Doc. 62.) Thus, Plaintiff’s Motion also is fully
briefed and ripe for disposition.
C.
Allegations of the Amended Complaint
In his Amended Complaint, Murphy alleges as follows:
On December 10, 2008, Murphy was indicted for charges under 21 U.S.C.
§ 841(a)(1) and 21 U.S.C. § 846. (Doc. 15 9.) On July 14, 2009, a jury sitting in the
United States District Court for the Middle District of Pennsylvania found him guilty
of both charges. (Id.) AUSA Daryl Bloom prosecuted his case; Wendy Yinger was
the court reporter at trial; Dennis E. Boyle, Esquire, who was privately retained,
represented Murphy at trial; and Gerald A. Lord, who was a court-appointed attorney,
represented Murphy at the sentencing phase. (Id. ¶¶ 4-7, 20-21.) On June 22, 2010,
Murphy was sentenced to a 384 month term of imprisonment.4 (Id. ¶ 10.)
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Although Murphy alleges that he was sentenced to a 384 month term of imprisonment, the
(continued...)
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Murphy alleges that Defendants conspired to alter his trial transcript and to
include a false declaration in his sentencing memorandum. (Id. ¶ 21.) The alleged
alterations and omissions in the trial transcript are as follows: statements that were
actually made by Attorney Bloom were incorrectly transcribed as having been made
by Attorney Boyle; testimony from witness Laura Shope consisting of her answer to
Attorney Bloom’s question, “Did you use this phone to sell drugs?” was not
transcribed; Shope’s testimony answering Boyle’s question in the affirmative as to
whether she knows who Nakia Thompson is was not transcribed; Attorney Boyle’s
referral during cross-examination of Bridget Bark to “the person wearing the blue
suit” was incorrectly transcribed as “the person wearing the blue shirt”; and Bark’s
answer to Attorney Boyle’s question asking how she remembers his client was not
transcribed. (Id. at 5-6.)
Murphy also alleges that Attorney Boyle rendered “a service of representation
that was deficient, and fell below professional norms throughout his representation of
Plaintiff” by failing to discover perjury in transcripts, failing to object to inadmissible
evidence, failing to subpoena Murphy’s co-defendants at his trial, failing to challenge
4
(...continued)
Judgment in a Criminal Case entered by the sentencing judge on June 23, 2010 reflects that he was
sentenced to a 360 month term of imprisonment. (See USA v. Murphy, Criminal No. 1:08-CR00433-WWC-1, Doc. 120 at 3.)
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the indictment, waiving Murphy’s right to confrontation, and failing to investigate
defense witnesses. (Id. ¶¶ 11, 23.)
Murphy alleges that Attorney Lord also rendered “deficient representation that
fell below the professional norms demanded, or mandated by the American Bar
Association” by failing to adequately test the prosecution’s case, failing to get signed
declarations from the other defendants about inaccuracies in the transcript, failing to
notify the court or court reporter of these inaccuracies, making a misrepresentation to
Murphy about requesting an interlocutory appeal from the denial of a bail motion, and
failing to move to set aside the verdict or dismiss the indictment. (Id. ¶¶ 15, 24.) He
also alleges that Lord included a “false declaration” from Attorney Boyle in Murphy’s
Sentencing Memorandum. (Id. ¶¶ 18-20.)
II.
MOTIONS TO DISMISS
A.
Standard of Review
A Rule 12(b)(6) motion tests the sufficiency of the complaint against the
pleading requirements of Rule 8(a). Rule 8(a)(2) requires that a complaint contain a
short and plain statement of the claim showing that the pleader is entitled to relief, “in
order to give the defendant fair notice of what the claim is and the grounds upon
which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley
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v. Gibson, 355 U.S. 41, 47 (1957)). While a complaint attacked by a Rule 12(b)(6)
motion to dismiss need not contain detailed factual allegations, it must contain
“sufficient factual matter, accepted as true, to ‘state claim to relief that is plausible on
its face.’” Ashcroft v. Iqbal, --- U.S. ----, ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868
(2009). To survive a motion to dismiss, a civil plaintiff must allege facts that ‘raise a
right to relief above the speculative level . . . .’” Victaulic Co. v. Tieman, 499 F.3d
227, 234 (3d Cir. 2007) (quoting Twombly, 550 U.S. at 555). Accordingly, to satisfy
the plausibility standard, the complaint must indicate that defendant's liability is more
than “a sheer possibility.” Iqbal, 129 S.Ct. at 1949. “Where 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.’” Id. (quoting Twombly,
550 U.S. at 557).
Under the two-pronged approach articulated in Twombly and later
formalized in Iqbal, a district court must first identify all factual allegations that
constitute nothing more than “legal conclusions” or “naked assertions.” Twombly,
550 U.S. at 555, 557. Such allegations are “not entitled to the assumption of truth”
and must be disregarded for purposes of resolving a 12(b)(6) motion to dismiss.
Iqbal, 129 S.Ct. at 1950. Next, the district court must identify “the ‘nub’ of the ...
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complaint-the well-pleaded, nonconclusory factual allegation[s].” Id. Taking these
allegations as true, the district judge must then determine whether the complaint states
a plausible claim for relief. See id .
However, “a complaint may not be dismissed merely because it appears
unlikely that the plaintiff can prove those facts or will ultimately prevail on the
merits.” Phillips, 515 F.3d at 231 (citing Twombly, 127 S.Ct. 1964-65, 1969 n. 8).
Rule 8 “does not impose a probability requirement at the pleading stage, but instead
simply calls for enough facts to raise a reasonable expectation that discovery will
reveal evidence of the necessary element.” Id. at 234.
B.
Discussion
Murphy alleges that Defendants violated his constitutional rights in the course
of his criminal proceedings, and also that Defendants Boyle and Lord committed legal
malpractice, and he requests declaratory and injunctive relief, as well as
compensatory, punitive, and replevin damages. (See Doc. 15.) In the pending
Motions to Dismiss filed on behalf of Defendants (Docs. 27, 33, 44), they argue that
Murphy’s claims are barred by the “favorable termination rule” that was
acknowledged by the United States Supreme Court in Heck v. Humphrey, 512 U.S.
477 (1994).
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In Heck, the Court held that a civil rights plaintiff may not recover damages in
an action claiming a violation of his constitutional rights “if success in that action
would necessarily demonstrate the invalidity of the confinement or its duration,”
Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005), unless the plaintiff proves the
sentence of confinement “has been reversed on direct 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, 512 U.S. at 486-87. The United
States Court of Appeals for the Third Circuit has recognized that the Supreme Court
created the “favorable termination rule” to prevent parallel litigation over the issues of
probable cause and guilt, and that the Court “sought to prevent the possibility of two
conflicting resolutions arising out of the same successful prosecution, and preclude a
convicted criminal defendant from collaterally attacking his conviction through the
vehicle of a civil suit.” Perez v. Georgelis, 351 Fed. Appx. 788, 790 (3d Cir. 2009)
(citing Heck, 512 U.S. at 484).
In the case at hand, Murphy seeks declaratory and injunctive relief and money
damages based on his claims that Defendants violated his constitutional rights during
his criminal proceedings. Murphy argues that a favorable determination in this case
would not imply the invalidity of his conviction and sentence because his claims
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regarding the alteration of the trial transcripts, and placement of a false declaration in
the sentencing memorandum were not bases to convict him or to support his sentence.
(See Doc. 52 at 5.) He instead asserts that these claims refer to separate civil rights
violations. (See id.) However, success on these claims necessarily would imply that
Murphy’s conviction and sentence are invalid. In particular, where Murphy alleges
that Defendants conspired to alter his trial transcript, as the United States Court of
Appeals for the Third Circuit recognized in Tedford v. Hepting, 990 F.2d 745, 747 (3d
Cir. 1993), a criminal defendant does not have a constitutional right to a totally
accurate transcript of his criminal trial, and therefore, his constitutional rights only
would be violated if inaccuracies in the transcript adversely affected the outcome of
his criminal proceeding. 990 F.2d at 747. The Tedford Court further pointed out that
a jury returns a verdict based upon the evidence they see and hear before a transcript
of the trial even is available, and therefore, a constitutional violation only could occur
if inaccuracies in the transcript adversely affect appellate review. Id.
Thus, in this case, Murphy’s argument fails. Where he is alleging that the
actions of the prosecutor, court reporter, and his two defense attorneys during his
criminal proceedings violated his constitutional rights, if he were to succeed on that
claim and obtain the damages he seeks, it necessarily would imply that his conviction
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and sentence are invalid. Moreover, where any violation of his constitutional rights
with respect to the alleged inaccuracies in the trial transcript could only occur at the
level of appellate review, and Murphy’s direct appeal has not yet concluded, any claim
of a violation of a constitutional right in that regard is premature.
In short, where Murphy’s direct appeal from his judgment of sentence remains
pending, he cannot make the necessary showing to proceed with this civil rights action
that his conviction has been reversed, invalidated, or called into question by the
issuance of a federal writ of habeas corpus. Heck, 512 U.S. at 486-87. Accordingly,
we shall grant the pending Motions to Dismiss on the basis that Murphy’s claims
against all Defendants are barred by the “favorable termination rule” set forth in
Heck.5
Moreover, as argued by Defendant Boyle (see Doc. 53 at 20-25), Murphy has
failed to state a claim of legal malpractice against Defendants Boyle and Lord where
he did not follow the proper procedure for filing a Certificate of Merit as to Attorney
5
In dismissing Murphy’s claims against all Defendants as barred by Heck, we acknowledge
that, as argued in the brief submitted on behalf of Defendant Boyle (Doc. 53 at 17), even if the
claims against Boyle and Lord were not barred by Heck, Murphy cannot maintain a Bivens claim
against these Defendants because such a claim for damages may lie only against a federal agent
acting under color of federal authority, and Boyle and Lord are not federal agents, but instead are
private criminal defense attorneys. See Bivens, 403 U.S. at 395-96; see also Brown, supra n.1, 250
F.3d at 800.
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Boyle (see Doc. 11), and failed to file a Certificate of Merit as to Attorney Lord, and
where his direct appeal from his judgment of sentence remains pending, and thus he
cannot plead that “but for” his attorneys’ conduct, he would have obtained an acquittal
or a complete dismissal of the charges, see Bailey v. Tucker, 621 A.2d 108, 115 (Pa.
1993), or that his conviction has been reversed, see id.
III.
PLAINTIFF’S MOTION TO AMEND/SUPPLEMENT
On January 27, 2011, Murphy filed a “Motion to Amend and Supplement the
Pleadings” (Doc. 59) in which he seeks to amend and supplement his Amended
Complaint to include additional “substantial material alterations, and omissions made
to the trial transcript.” (Doc. 60, Pl.’s Br., at 3.)
Federal Rule of Civil Procedure 15(a)(2) states that “[t]he courts should freely
give leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2). In the
absence of any apparent or declared reason- such as undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue of allowance of
the amendment, futility of amendment, etc.- the leave sought should, as the rules
require, be freely given.” Foman v. Davis, 371 U.S. 178, 182 (1962). An amendment
would be futile when the complaint, as amended, would fail to state a claim upon
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which relief could be granted. In re NAHC, Inc. Securities Litig., 306 F.3d 1314, 1332
(3d Cir. 2002).
In the instant case, where we have determined that Murphy’s claims are barred
by the “favorable termination rule” set forth in Heck, no amendment to his claims
would allow him to state a claim upon which relief may be granted, and therefore, we
shall deny as futile Murphy’s Motion requesting the opportunity to amend and
supplement the pleadings to include additional allegations of alterations to his
criminal trial transcripts.
IV.
CONCLUSION
For the foregoing reasons, the Motions to Dismiss filed pursuant to Fed. R. Civ.
P. 12(b)(6) on behalf of Defendants Bloom and Yinger (Doc. 27), Defendant Lord
(Doc. 33), and Defendant Boyle (Doc. 44) will be granted, and Plaintiff’s “Motion to
Amend and Supplement the Pleadings” (Doc. 59) will be denied. An appropriate
Order shall enter on today’s date.
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