Kitchen v. PA Board of Probation and Parole et al

Filing 17

MEMORANDUM re MOTION TO DISMISS 13 and the R and R 16 of M.J. Saporito(Order to follow as separate docket entry)Signed by Honorable William W. Caldwell on 9/19/17. (ma)

UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA

ROBERT ALLEN KITCHEN, SR.,
Plaintiff
v.
PA BOARD OF PROBATION AND
PAROLE, et al.,
Defendants

:
:
:
:
:
:
:
:

CASE NO. 1:16-CV-2129

MEMORANDUM

I.

Introduction
Before the court is the report (Doc. 16) from Magistrate Judge Joseph F.

Saporito, Jr. recommending that Defendants’ motion (Doc. 13) to dismiss for failure to
state a claim be granted and that Plaintiff’s complaint be dismissed without leave to
amend. For the following reasons, the court will grant Defendants’ motion to dismiss, but
will allow Plaintiff an opportunity to amend his complaint.
II.

Background
On October 21, 2016, Plaintiff Robert Allen Kitchen, Sr. filed a civil rights

action based on 42 U.S.C. § 1983 against the Pennsylvania Board of Probation and
Parole (BPP), Pennsylvania state parole agent Jeffrey Ruzicki (Ruzicki) in his individual
capacity, and Pennsylvania state parole agent Douglas Schaeffer (Schaeffer) in his
individual capacity. 1 (Doc. 1). Plaintiff amended his complaint as a matter of right on
November 4, 2016. (Doc. 8).

1

The three defendants are often referred to collectively as “Defendants.”

In his amended complaint, Plaintiff alleges that Ruzicki and Schaeffer,
acting under color of state law, violated his constitutional rights to due process2 and
equal protection guaranteed by the Fourteenth Amendment to the United States
Constitution. (Doc. 8 at 3). He claims that Ruzicki and Schaeffer co-authored a
Supervision History Report (SHR) in which they intentionally falsified probation violation
information and purposefully omitted information favorable to Plaintiff. (Id. at 5). This
SHR was provided to the trial court for use in sentencing Plaintiff for violating the terms
of his probation, and was “referred to, relied upon, and used by the Court in deciding
what sentence to impose upon Plaintiff.” (Id.) Plaintiff alleges that the submission of,
and reliance on, this falsified SHR resulted in a sentence of three to six years in state
prison, with a credit of 119 days for time served. (Id.) This initial sentence was imposed
on April 11, 2012. (Id.)
According to Plaintiff, after he received a copy of the SHR, he embarked on
a lengthy appeal process to challenge the validity of his sentence. (Id.) On August 28,
2013, the Superior Court of Pennsylvania vacated the April 11, 2012 sentence, and
remanded the case for resentencing. Commonwealth v. Kitchen, No. 1217 MDA 2012,
2013 WL 11256394, at *1 (Pa. Super. Ct. Aug. 28, 2013). 3 The Superior Court found

2

Plaintiff does not specify whether he is asserting a procedural or substantive due process claim,
and Defendants did not address this preliminary issue. From the character of Plaintiff’s
allegations, it appears he is asserting that his substantive due process rights were violated when
the named parole-agent defendants intentionally provided false and damaging information to the
sentencing court, which relied upon that information to impose Plaintiff’s initial parole-revocation
sentence.
3

Judicial opinions are public records, of which this court may take judicial notice in deciding a
motion to dismiss. See Zedonis v. Lynch, 233 F. Supp. 3d 417, 422 (M.D. Pa. 2017) (Caldwell, J.)
(citing Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1197 (3d Cir.
1993) and Dean v. Copozza, No. CIV.A. 13-41, 2013 WL 1787804, at *1 (W.D. Pa. Apr. 10,
2013)).

2

that vacatur and remand were required because the sentencing court failed to request a
pre-sentence investigation report (PSI), or alternatively to conduct an appropriate
colloquy explaining the reasons for not ordering a PSI. Id. at *4.
After his sentence was vacated, Plaintiff alleges that he was eventually
permitted to challenge the contents of the SHR. (Doc. 8 at 5). He asserts that in June of
2014, a hearing was held where “[i]t was proven . . . that the majority of the violations
contained in the report were false and unverifiable” and “that key information showing
[his] compliance with certain conditions of parole [was] omitted from the report.” (Id.)
On September 17, 2014, Plaintiff was resentenced to a term of two and
one-half years to six years’ imprisonment, with a credit of 2,101 days for time served,
“effectively cutting [his] sentence in half[.]” (Id.) He was released from prison on
December 17, 2014, the maximum release date under the revised sentence. (Id.)
Plaintiff is suing Ruzicki and Schaeffer in their individual capacities, seeking
monetary damages totaling $750,000, which includes punitive damages. (Id. at 6). He is
suing the BPP for “fail[ure] to properly supervise, train[,] and instruct Defendants Ruzicki
and Schaeffer.” (Id. at 4).
On January 13, 2017, Defendants filed a motion to dismiss for failure to
state a claim. (Doc. 13). Defendants argue that Plaintiff’s § 1983 claims are barred by
both Heck v. Humphrey, 512 U.S. 477 (1994), and the statute of limitations. (Doc. 14 at
4-8). Plaintiff failed to respond to the motion to dismiss despite being given a sua sponte
extension until April 25, 2017, and thus the motion was considered unopposed pursuant
to Middle District of Pennsylvania Local Rule 7.6. (Doc. 16 at 1-2). Judge Saporito
found that Plaintiff’s claims were barred by Heck v. Humphrey, and did not address

3

Defendants’ statute of limitations argument. (Id. at 7-11). Judge Saporito recommended
that Plaintiff’s complaint be dismissed and that leave to amend be denied because
“amendment in this case would be futile.” (Id. at 11-12). No objections to the report and
recommendation were filed.
III.

Standard of Review
When a party objects to a magistrate judge’s report and recommendation,

the district court must review de novo the contested portions of the report. 28 U.S.C.
§ 636(b)(1)(C); M.D. Pa. Local Rule 72.3. Uncontested portions of the report are reviewed
for “clear error on the face of the record.” Clouser v. Johnson, 40 F. Supp. 3d 425, 430
(M.D. Pa. 2014) (quoting Cruz v. Chater, 990 F. Supp. 375, 375-78 (M.D. Pa. 1998)
(quoting 1983 Advisory Committee Notes to Federal Rule of Civil Procedure 72(b))).
At the motion to dismiss stage, Federal Rule of Civil Procedure 12(b)(6)
provides for the dismissal of complaints that fail to state a claim upon which relief can be
granted. When ruling on a motion to dismiss under Rule 12(b)(6), the court must “accept
all factual allegations as true, construe the complaint in the light most favorable to the
plaintiff, and determine whether, under any reasonable reading of the complaint, the
plaintiff may be entitled to relief.” Bronowicz v. Allegheny County, 804 F.3d 338, 344 (3d
Cir. 2015 (quoting Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)). In
general, documents properly considered at the motion to dismiss stage are limited to “the
complaint, exhibits attached to the complaint[,] and matters of public record.” Schmidt v.
Skolas, 770 F.3d 241, 249 (3d Cir. 2014).
Federal notice and pleading rules require the complaint to provide “the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Id. at

4

232 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To test the sufficiency
of the complaint, the court conducts a three-step inquiry. See Santiago v. Warminster
Township, 629 F.3d 121, 130-31 (3d Cir. 2010). In the first step, “the court must ‘tak[e]
note of the elements a plaintiff must plead to state a claim.’” Id. at 130 (alteration in
original) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)). Next, the factual and legal
elements of a claim must be separated; well-pleaded facts must be accepted as true,
while mere legal conclusions may be disregarded. Id. at 131-32. Once the court isolates
the well-pleaded factual allegations, it must determine whether they are sufficient to show
a “plausible claim for relief.” Iqbal, 556 U.S. at 679 (citing Twombly, 550 U.S. at 556). A
claim is facially plausible when the plaintiff pleads facts “that allow[ ] the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678.
Courts should grant leave to amend before dismissing a curable pleading in
civil rights actions. See Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482
F.3d 247, 251 (3d Cir. 2007). Courts need not grant leave to amend sua sponte when
dismissing non-civil rights claims pursuant to Rule 12(b)(6), id. at 252-53, but leave is
broadly encouraged “when justice so requires,” FED. R. CIV. P. 15(a)(2).
IV.

Discussion
A. Heck v. Humphrey
Defendants first argue that Plaintiff’s claims are barred by the favorable

termination rule established in Heck v. Humphrey, 512 U.S. 477 (1994). They assert that
success on Plaintiff’s § 1983 claims would “impermissibly attack the validity of Plaintiff’s
probation revocation and the 6-year sentence imposed by the court in April 2012,” which
was “not reversed, but reimposed by the sentencing court in 2014.” (Doc. 14 at 5). They

5

further maintain that “Plaintiff cannot even show that the revocation of his probation was
somehow overturned, or that it was favorably terminated.” (Id.)
Judge Saporito agreed that Heck v. Humphrey bars Plaintiff’s claims. In his
report, he concluded that when considering the revocation proceedings “as a whole,”
those proceedings “were not terminated in [Plaintiff]’s favor.” (Doc. 16 at 9). Relying
primarily on Bronowicz v. Allegheny County, 804 F.3d 338 (3d Cir. 2015), Judge Saporito
reasoned that although the Superior Court vacated Plaintiff’s initial judgment of sentence,
unlike the plaintiff in Bronowicz who was ordered immediately released from custody on
remand, Plaintiff was resentenced on remand and continued to be incarcerated until his
six-year maximum term of imprisonment expired. (Id. at 10). Judge Saporito concluded
that Plaintiff’s claims are barred by Heck because they “are inconsistent with the judgment
of sentence imposed on September 17, 2014, which has not been subsequently ‘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 [under] 28 U.S.C. § 2254.’” (Id. at 10-11 (alteration in
original) (quoting Heck, 512 U.S. at 486-87)).
The court disagrees. First, the court assumes, without deciding, that
success on Plaintiff’s substantive due process and equal protection claims would
necessarily impugn the validity of his initial parole-revocation sentence and thus implicate
Heck v. Humphrey’s favorable termination rule. The record shows, however, that this
initial sentence was subsequently vacated, and upon remand Plaintiff received a more
favorable sentence. This is more than sufficient to demonstrate favorable termination so
as to circumvent dismissal under Heck.

6

Heck v. Humphrey requires that “when a state prisoner seeks damages in a
§ 1983 suit, the district court must consider whether a judgment in favor of the plaintiff
would necessarily imply the invalidity of his conviction or sentence; if it would, the
complaint must be dismissed unless the plaintiff can demonstrate that the conviction or
sentence has already been invalidated.” 512 U.S. at 487. This rule is often referred to as
the “favorable termination rule.” Curry v. Yachera, 835 F.3d 373, 378 (3d Cir. 2016) (citing
Bronowicz, 804 F.3d at 344-45). However, “[i]f an action will not demonstrate the invalidity
of the [underlying conviction or sentence], it should proceed.” Id. Therefore, Heck will not
bar an action under § 1983 if (1) success on the claim will not necessarily imply the
invalidity of an outstanding criminal conviction or sentence, or (2) the plaintiff can establish
that the underlying conviction or sentence that would be impugned by success in the civil
action was subsequently invalidated, i.e., terminated in the plaintiff’s favor.
Defendants argue that in order for Plaintiff to satisfy Heck’s favorable
termination rule, he must show that revocation of parole itself—not just the initially
imposed sentence—was subsequently invalidated. This is more than the law requires for
Plaintiff’s § 1983 claims. See Powell v. Weiss, 757 F.3d 338, 346 (3d Cir. 2014) (finding
that Heck did not bar plaintiff’s § 1983 claim alleging wrongful supervision beyond the
maximum sentence date when he had already challenged the duration of his original
sentence and that sentence was subsequently invalidated by an appropriate court).
It is true, as Judge Saporito notes, that in Bronowicz, on remand, the
plaintiff was ordered immediately released rather than being resentenced to a different
term of imprisonment. Bronowicz, 804 F.3d at 344. The critical distinction between
Bronowicz and the instant case, however, is that the § 1983 claims at issue in Bronowicz

7

were based on the plaintiff’s alleged “illegal imprisonment” for thirty months stemming from
the parole-revocation sentence that was eventually overturned. Id. at 345. If, on remand,
the plaintiff in Bronowicz had been resentenced to a similar term of imprisonment for his
parole violations, rather than being released, his claim of “illegal imprisonment” would
have impugned the validity of that second sentence and run afoul of Heck.
Plaintiff’s situation is different. His § 1983 claims are based on Ruzicki’s and
Schaeffer’s alleged misconduct of intentionally presenting false information on his SHR,
which the sentencing judge relied upon to impose an initial parole-revocation sentence
that Plaintiff contends was improper. Plaintiff has further shown that this sentence was
subsequently vacated by an appropriate state tribunal, and that upon remand he received
a more favorable sentence. As the Third Circuit in Powell explained, such an outcome is
sufficient to avoid dismissal under Heck. Powell, 757 F.3d at 346.
The court is perplexed by Defendant’s argument that Heck bars Plaintiff’s
claims because the sentencing court’s initial 2012 sentence of three to six years’
imprisonment with 119 days’ credit for time served was “reimposed by the sentencing
court in 2014” when Plaintiff was sentenced to two and one-half to six years’ imprisonment
with 2,101 days’ credit for time served. Those sentences are patently distinguishable: the
former would result in a maximum term of imprisonment ending in early 2018, whereas the
latter provided a maximum term of imprisonment that expired in December of 2014.
Furthermore, as to Defendants’ argument that Plaintiff must show that his
revocation of parole was overturned or otherwise favorably terminated to avoid dismissal
under Heck, this assertion also lacks merit. Plaintiff’s § 1983 claims do not allege that
revocation of parole was illegal or improper. Rather, they assert that his initial parole-

8

revocation sentence was improper due to the alleged misdeeds of Ruzicki and Schaeffer.
That sentence was subsequently overturned by an appropriate state tribunal, and a less
severe sentence was imposed on remand.
Accordingly, Plaintiff’s civil rights claims are not inconsistent with the revised
judgment of sentence imposed on September 17, 2014. At most, they could be seen as
implying the invalidity of Plaintiff’s initial 2012 revocation-of-parole sentence. Heck does
not bar such claims, however, because Plaintiff can satisfy the favorable termination rule
as to that initial sentence.
B. Statute of Limitations
Defendants next argue that Plaintiff’s claims must be dismissed because
they were filed after the expiration of the applicable statute of limitations. Judge Saporito
did not address this argument due to his determination of the Heck v. Humphrey issue in
Defendants’ favor. Upon review, the court finds Defendants’ statute of limitations
argument more persuasive.
Normally, the statute of limitations is an affirmative defense that should be
raised in a defendant’s answer. Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014)
(citing Robinson v. Johnson, 313 F.3d 128, 134-35 (3d Cir. 2002)); FED. R. CIV. P. 8(c)(1).
An exception to this rule is when “the time alleged in the statement of a claim shows that
the cause of action has not been brought within the statute of limitations.” Schmidt, 770
F.3d at 249 (quoting Robinson, 313 F.3d at 135). However, “[i]f the bar is not apparent on
the face of the complaint, then it may not afford the basis for a dismissal of the complaint
under Rule 12(b)(6).” Robinson, 313 F.3d at 135 (citation omitted).

9

In actions based on 42 U.S.C. § 1983, federal courts apply the forum state’s
statute of limitations for personal injury claims. Kach v. Hose, 589 F.3d 626, 634 (3d Cir.
2009). In Pennsylvania, the statute of limitations for personal injury claims, and thus for
§ 1983 claims, is two years. Id. (citing 42 PA. CONS. STAT. § 5524(2)).
Federal law, rather than state law, governs when a cause of action accrues.
Id. (citation omitted). “Under federal law, a cause of action accrues, and the statute of
limitations begins to run, when the plaintiff knew or should have known of the injury upon
which [his] action is based.” Id. (quoting Sameric Corp. v. City of Philadelphia, 142 F.3d
582, 599 (3d Cir. 1998)). “Accrual is the occurrence of damages caused by a wrongful
act—when a plaintiff has a complete and present cause of action, that is, when the plaintiff
can file suit and obtain relief.” Dique v. N.J. State Police, 603 F.3d 181, 185 (3d Cir. 2010)
(citations and internal quotation marks omitted). Generally, state tolling principles apply,
unless they contradict federal law or policy, in which case federal tolling principles may
apply. Kach, 589 F.3d at 639 (citation omitted).
In this case, Plaintiff avers that he did not receive a copy of the falsified SHR
until four months after the April 2012 sentencing, or approximately August 2012. (Doc. 8
at 5). On August 28, 2013, Plaintiff’s initial parole-revocation sentence was vacated by the
Superior Court. On June 24, 2014, Plaintiff alleges that he cross-examined Ruzicki and
Schaeffer and that “it was proven at this hearing that a majority of the violations contained
in the report were false and unverifiable.” (Id.) Plaintiff was then resentenced on
September 17, 2014, “upon a showing that the false information significantly contributed to
the Court’s previous [April 2012] sentencing decision.” (Id.) Plaintiff further avers that the
Pennsylvania Department of Corrections Record Office at SCI Dallas “effectively held up

10

finality in the outcome by requesting clarification from the Court as to [its] intentions and
causing Plaintiff to wait until his actual release date of December 17, 2014[,] to realize
finality.” (Id.)
Defendants contend that the two-year statute of limitations began running, at
the very latest, when Plaintiff was resentenced on September 17, 2014. (Doc. 14 at 8).
Because Plaintiff did not file the instant lawsuit until October 2016, they argue, his claims
are time-barred. (Id.) Defendants further maintain that because Plaintiff’s claims do not
sound in malicious prosecution, there is no favorable termination requirement, and thus
Plaintiff’s attempt to assert that the two-year clock did not start running on his claims until
December 17, 2014—when he was ultimately released from prison—cannot salvage his
untimely civil rights action. (Id. at 7).
This court agrees that Plaintiff’s claims, as pleaded, are patently time-barred.
Even under the most liberal reading of Plaintiff’s complaint, and assuming, without
deciding, that the Heck rule 4 applies to defer the accrual date until Plaintiff was
resentenced, his claims would have accrued, at the very latest, on September 17, 2014.
According to Plaintiff’s own complaint, it is at this time that he was given a more favorable
parole-revocation sentence because he had successfully challenged the initial sentence
that was based on the falsified SHR.
Thus, on the face of Plaintiff’s complaint, his claims are unquestionably timebarred. Even assuming the Heck rule applies to Plaintiff’s claims, he had two years, or
until September 17, 2016, in which to file suit, but did not do so until October 21, 2016.
4

Because of the requirements of Heck v. Humphrey, explained in detail supra, some § 1983
claims will not accrue until the underlying conviction or sentence is invalidated. This is true, for
example, for claims sounding in malicious prosecution. See Curry, 835 F.3d at 379. The court
does not decide at this time whether the Heck rule would apply to defer the accrual date of
Plaintiff’s § 1983 claims that sound in substantive due process and equal protection.

11

Moreover, Plaintiff provides no basis in his complaint to apply any state or federal tolling
principles to toll the statute of limitations.
Accordingly, Plaintiff’s § 1983 claims must be dismissed. Nevertheless,
Plaintiff will be granted leave to amend to plead facts, if any, showing why his case should
not be dismissed under the two-year statute of limitations applicable to his civil rights
claims. See Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251
(3d Cir. 2007).
V.

Conclusion
Plaintiff’s § 1983 claims avoid dismissal under Heck v. Humphrey, but run

afoul of the two-year statute of limitations. Therefore, Defendants’ motion to dismiss will
be granted, but Plaintiff will be permitted to amend his complaint. An appropriate order will
follow.

/s/ William W. Caldwell
William W. Caldwell
United States District Judge

12