Folk v. Prime Care Medical et al

Filing 82

MEMORANDUM (Order to follow as separate docket entry)Once jurisdiction has been exercised over the state claim, elimination of the federal claim does not deprive the court of jurisdiction to adjudicate the pendent claim. Id. (citing Lentino v. Fring e Emp. Plans, Inc., 611 F. 2d 474, 479 (3d Cir. 1979)). However, if a federal claim is dismissed prior to trial, the district court should decline to decide the pendent state claims, unless considerations of judicial economy, convenience, and fairne ss provide an affirmative justification for doing so. Borough of West Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995). Since this Court shall dismiss the federal claims against the Moving Defendants remaining argument is not required. Defenda nt Freese, jurisdiction will be declined with respect to any pendent state law claims that Plaintiff wishes to pursue.Defendant Freeses motion to dismiss will be granted. An appropriate Order will enter. re 57 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Heidi R. Freese Signed by Honorable Richard P. Conaboy on 1/27/17. (cc)

IN THE UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA

OMAR FOLK,

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Plaintiff
v.
PRIME CARE MEDICAL, ET AL.,
Defendants

CIVIL NO. 3:CV-13-474
(Judge Conaboy)

_________________________________________________________________
MEMORANDUM
Background
Omar Folk, an inmate presently confined at the Allenwood
United States Penitentiary, White Deer, Pennsylvania (USPAllenwood) initiated his pro se civil rights action. By Memorandum
and Order dated August 18, 2016, dismissal was granted in favor of
Defendants Perry County, Pennsylvania Prison; Warden David Yeingst,
Deputy Warden Thomas Long; Lieutenant Twigg; Sergeant Keller; the
Perry County Prison Board and Chairman Charles Chenot. See Doc. 64.
An August 24, 2016 Memorandum and Order granted the Attorney
General of Pennsylvania’s motion to dismiss.

See Doc. 67.

By

Memorandum dated September 1, 2016, a motion to dismiss by
Defendants City of Harrisburg, Dauphin County Prison, and Warden
DeRose was granted.

See Doc. 69.

Remaining Defendants are Prime Care Medical, staff members
of the Dauphin County Prison facility; and Assistant Federal Public
Defender Heidi R. Freese.

Plaintiff states that Attorney Frees was

court appointed to represent him with respect to a federal criminal
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prosecution.

Folk briefly alleges that Freese violated his

constitutional rights by failing to obtain a trial continuance.
The Complaint vaguely contends only that

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Plaintiff had informed

counsel that he wanted a continuance, Freese, when asked by the
court is she was ready, gave an answer which made no sense.
Doc. 1, ¶ IV (2).

See

The Plaintiff adds that he eventually elected to

proceed pro se in those proceedings because of “poor advice” and
Frees thereafter acted as standby counsel.

Id.

The remainder of the Complaint raises claims which do not
pertain to Attorney Freese.

Presently pending is Defendant

Freese’s motion to dismiss.

See Doc. 58.

The opposed motion is

ripe for consideration.2
Discussion
Defendant Freese claims entitlement to dismissal on the
grounds that: (1) she is not a properly named defendant; (2) a
viable due process claim has not been stated; and (3) the claims
against Freese are barred by

Heck v. Humphrey, 512 U.S. 477

(1994).
Standard of Review
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 as true all factual
1. Plaintiff has filed both an opposing brief as well as an
untimely motion to amend his complaint.
2. Folk was ultimately convicted of the federal criminal charges.
A letter attached to his Complaint indicates that he was granted
leave to proceed pro se at sentencing. See Doc. 1, p. 26.
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allegations in the complaint and all reasonable inferences that can
be drawn therefrom, and view them in the light most favorable to
the plaintiff.”

Kanter v. Barella, 489 F.3d 170, 177 (3d Cir.

2007)(quoting Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005)).
A plaintiff must present facts that, if true, demonstrate a
plausible right to relief.

See Fed. R. Civ. P. 8(a)(stating that

the complaint should include “a short and plain statement of the
claim showing that the pleader is entitled to relief”); Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007).
This requirement “calls for enough facts to raise a
reasonable expectation that discovery will reveal evidence of” the
necessary elements of the plaintiff’s cause of action.

Id. at 556.

A complaint must contain “more than an unadorned, the-defendantunlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). “Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements do not suffice.”
Id.

Legal conclusions must be supported by factual allegations and

the complaint must state a plausible claim for relief.
679.

See id. at

Legal conclusions must be supported by factual allegations

and the complaint must state a plausible claim for relief.

See id.

at 679.
“Factual allegations must be enough to raise a right to
relief above the speculative level, on the assumption that all the
allegations in the complaint are true (even if doubtful in fact).”
Twombly, at 555.

The reviewing court must determine whether the

complaint “contain[s] either direct or inferential allegations
respecting all the material elements necessary to sustain recovery
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under some viable legal theory.”

Id. at 562; see also Phillips v.

County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008)(in order to
survive a motion to dismiss, a plaintiff must allege in his
complaint “enough facts to raise a reasonable expectation that
discovery will reveal evidence of the necessary element[s]” of a
particular cause of action).

Additionally, pro se pleadings are to

be construed liberally, Haines v. Kerner, 404 U.S. 519, 520 (1972).
Public Defender
A plaintiff, in order to state an actionable civil rights
claim, must plead two essential elements: (1) that the conduct
complained of was committed by a person acting under color of law,
and (2) that said conduct deprived the plaintiff of a right,
privilege, or immunity secured by the Constitution or laws of the
United States.

Groman v. Township of Manalapan, 47 F.3d 628, 638

(3d Cir. 1995); Shaw by Strain v. Strackhouse, 920 F.2d 1135, 114142 (3d Cir. 1990).
It is equally well-settled that public defenders and court
appointed counsel do not act under color of state law for purposes
of § 1983 when performing a traditional lawyer’s functions to a
defendant in a criminal proceeding.

Polk County v. Dodson, 454

U.S. 312, 318 n. 7 (1981); Black v. Bayer, 672 F.2d 309, 320 (3d
Cir.), cert. denied, 459 U.S. 916 (1982).

Rankine v. Server, 2001

WL 322517 (E.D. Pa. Feb. 13, 2001)(defense counsel does not act
under color of state law); Figueroa v. Clark, 1992 WL 122872 (E.D.
Pa. June 1, 1992)(a court appointed attorney represents only his
client and not the state).

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The allegations against Assistant Federal Public Defender
Freese are entirely premised on actions taken by that Defendant the
course of the Plaintiff’s criminal defense.

Thus, under the

standards announced in Polk and Black, Defendant Freese was not
acting under color of state law for purposes of § 1983 and is not a
properly named Defendant.
Heck
In Heck, the United States Supreme Court ruled that a
constitutional cause of action for damages does not accrue "for
allegedly unconstitutional conviction or imprisonment, or for other
harm caused by actions whole unlawfulness would render a conviction
or sentence invalid," until the plaintiff proves 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."

Id. at 486-

87.
Based on the nature of Plaintiff’s allegations, a finding in
his favor would imply the invalidity of his federal conviction.
There is no indication that Folk has successfully challenged either
his federal conviction or sentence.

Consequently, pursuant to

Heck, Folk’s Complaint to the extent that it seeks an award of
monetary damages against Defendant Freese is premature because he
cannot maintain a cause of action for monetary damages until his
federal conviction is overturned.3
3.

Based upon the Court’s determinations herein, discussion of
(continued...)
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Pendent Jurisdiction
Plaintiff’s opposing brief to the motion to dismiss also
indicates that he now wishes to pursue state law claims against
Attorney Freese. See

Doc. 61, p. 6.

It is well settled that

federal courts have jurisdiction over state claims which are
related to the federal claims and result from a common nucleus of
operative facts.

See United Mine Workers v. Gibbs, 383 U.S. 715,

725 (1966); Aldinger v. Howard, 427 U.S. 1, 9 (1976).

Supplemental

jurisdiction may be declined over a claim when the court has
dismissed all claims over which it has original jurisdiction.
28 U.S.C. § 1367(c)(3) (1997).

See

When rendering a determination

regarding pendent jurisdiction district courts should consider
judicial economy, convenience, and fairness to the litigants.

New

Rock Asset Partners v. Preferred Entity Advancements, 101 F.3d
1492, 1505 (3d Cir. 1996)(citation omitted).
Once jurisdiction has been exercised over the state claim,
elimination of the federal claim does not deprive the court of
jurisdiction to adjudicate the pendent claim.

Id. (citing Lentino

v. Fringe Emp. Plans, Inc., 611 F. 2d 474, 479 (3d Cir. 1979)).
However, if a federal claim is dismissed prior to trial, the
district court should decline to decide the pendent state claims,
“unless considerations of judicial economy, convenience, and
fairness provide an affirmative justification for doing so.”
Borough of West Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir.
1995).

Since this Court shall dismiss the federal claims against

3. (...continued)
the Moving Defendant’s remaining argument is not required.
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Defendant Freese, jurisdiction will be declined with respect to any
pendent state law claims that Plaintiff wishes to

pursue.

Defendant Freese’s motion to dismiss will be granted.4

An

appropriate Order will enter.

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: JANUARY 26, 2017

4. With respect to Folk’s previously mentioned untimely motion to
amend his complaint, the motion does not indicate that it was
address any of deficiencies outlined by Defendant Freese’s pending
motion to dismiss. Accordingly, the motion will be denied with
respect to Defendant Freese.
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