Postie v. Frederick et al

Filing 28

MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Malachy E Mannion on 3/17/15. (Attachments: # 1 Unpublished Opinion(s), # 2 Unpublished Opinion(s), # 3 Unpublished Opinion(s), # 4 Unpublished Opinion(s))(bs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
FREDERICK A. POSTIE,

:
:

Plaintiff

CIVIL ACTION NO. 3:14-00317
:

v.
:
SGT. DUANE FREDERICK, et al.,
Defendants

(MANNION, D.J.)
(MEHALCHICK, M.J.)

:
:

MEMORANDUM
Before the court is the December 15, 2014 report and recommendation
of Judge Mehalchick, (Doc. 22), recommending that defendants’ motion to
dismiss, (Doc. 15), be granted and plaintiff’s pro se civil rights complaint,
(Doc. 1), be dismissed with prejudice regarding all federal claims for failure
to state a claim and since they are Heck barred. Judge Mehalchick finds that
it would be futile to allow plaintiff to amend his complaint. Judge Mehalchick
also recommends that the court decline to exercise supplemental jurisdiction
over the plaintiff’s state law tort claims and that these claims be dismissed
without prejudice. The plaintiff filed objections to the report and
recommendation, (Doc. 23), which have been briefed.
For the following reasons, the court will adopt, in part, the report and
recommendation and will sustain the plaintiff’s objections regarding the
determination that Heck precludes his constitutional claims. Therefore, the
defendants’ motion to dismiss will be granted, in part, and denied, in part.

I.

BACKGROUND1
On February 21, 2014, the plaintiff, Frederick A. Postie, formerly an

inmate at SCI-Frackville, and currently an inmate at SCI-Mercer, filed this civil
rights action under 42 U.S.C. §1983, with an exhibit construed as part of his
complaint. (Doc. 1; Doc. 1-1). He asserts several constitutional claims under
the Fourth, Fifth and Fourteenth Amendments as well as state law tort claims.
He also filed a motion to proceed in forma pauperis. (Doc. 2). After his motion
was granted, his complaint was served on the defendants, namely, sergeant
Duane Frederick, officer Adam Sinton, Jr., officer Corey Herring, officer Carl
Bachart, and Rush Township, Schuylkill County, Pennsylvania. Defendants
Frederick, Sinton, Herring and Bachart were police officers with the Rush
Township Police Department during the relevant times. The plaintiff sues
these four defendants in both their individual and official capacities.
The defendants filed a motion to dismiss under Fed.R.Civ.P. 12(b)(6),
on June 20, 2014. (Doc. 15). After the motion was briefed, Judge Mehalchick

1

Since the report and recommendation thoroughly details the lengthy
background of plaintiff’s state criminal history and his instant §1983 civil rights
claims, (Doc. 22, at 6-12), that is largely based on state court records of which
the court takes judicial notice, and since plaintiff’s claims implicate his
underlying criminal cases, the court does not fully repeat the background
herein. See Fed.R.Evid. 201; Oshiver v. Levin, Fishbein, Sedran & Berman,
38 F.3d 1380, 1385 n. 2 (3d Cir. 1994) (In considering a motion to dismiss
under Rule 12(b)(6), the court “may also consider matters of public record,
orders, exhibits attached to the complaint and items appearing in the record
of the case.”) (citations omitted). The court will limit its discussion of the
background as it pertains to the specific objections which plaintiff filed.
2

filed a report and recommendation, (Doc. 22), recommending that defendants’
motion to dismiss be granted and plaintiff’s complaint be dismissed with
prejudice regarding all federal claims since they were Heck barred. On
January 5, 2015, the plaintiff filed objections, (Doc. 23), which have been
briefed, (Doc. 24; Doc. 27). Thus, bringing this case to the current posture.

II.

STANDARDS OF REVIEW
A. Report and Recommendation
When objections are timely filed to the report and recommendation of

a magistrate judge, the district court must review de novo those portions of
the report to which objections are made. 28 U.S.C. §636(b)(1); Brown v.
Astrue, 649 F.3d 193, 195 (3d Cir. 2011). Although the standard is de novo,
the extent of review is committed to the sound discretion of the district judge,
and the court may rely on the recommendations of the magistrate judge to the
extent it deems proper. Rieder v. Apfel, 115 F.Supp.2d 496, 499 (M.D.Pa.
2000) (citing United States v. Raddatz, 447 U.S. 667, 676 (1980)).
For those sections of the report and recommendation to which no
objection is made, the court should, as a matter of good practice, "satisfy itself
that there is no clear error on the face of the record in order to accept the
recommendation." Fed. R. Civ. P. 72(b), advisory committee notes; see also
Univac Dental Co. v. Dentsply Intern., Inc., 702 F.Supp.2d 465, 469 (M.D.Pa.
2010) (citing Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987)
3

(explaining judges should give some review to every report and
recommendation)). Nevertheless, whether timely objections are made or not,
the district court may accept, not accept, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. 28 U.S.C.
§636(b)(1); Local Rule 72.31.

B. Motion to Dismiss Standard
The defendant's motion to dismiss is brought pursuant to the provisions
of Fed.R.Civ.P. 12(b)(6). This rule provides for the dismissal of a complaint,
in whole or in part, if the plaintiff fails to state a claim upon which relief can be
granted. The moving party bears the burden of showing that no claim has
been stated, Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005), and
dismissal is appropriate only if, accepting all of the facts alleged in the
complaint as true, the plaintiff has failed to plead "enough facts to state a
claim to relief that is plausible on its face," Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 127 S. Ct. 1955, 1974 (2007) (abrogating "no set of facts" language
found in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The facts alleged must
be sufficient to "raise a right to relief above the speculative level." Twombly,
550 U.S. 544, 127 S. Ct. at 1965. This requirement "calls for enough fact[s]
to raise a reasonable expectation that discovery will reveal evidence of"
necessary elements of the plaintiff's cause of action. Id. Furthermore, in order
to satisfy federal pleading requirements, the plaintiff must "provide the
4

grounds of his entitlement to relief," which "requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action
will not do." Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)
(brackets and quotations marks omitted) (quoting Twombly, 550 U.S. 544,
127 S. Ct. at 1964-65).
In considering a motion to dismiss, the court generally relies on the
complaint, attached exhibits, and matters of public record. See Sands v.
McCormick, 502 F.3d 263 (3d Cir. 2007). The court may also consider
"undisputedly authentic document[s] that a defendant attaches as an exhibit
to a motion to dismiss if the plaintiff's claims are based on the [attached]
documents." Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d
1192, 1196 (3d Cir. 1993). Moreover, "documents whose contents are alleged
in the complaint and whose authenticity no party questions, but which are not
physically attached to the pleading, may be considered." Pryor v. Nat'l
Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002). However, the
court may not rely on other parts of the record in determining a motion to
dismiss. See Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250,
1261 (3d Cir. 1994).
Generally, the court should grant leave to amend a complaint before
dismissing it as merely deficient. See, e.g., Fletcher-Harlee Corp. v. Pote
Concrete Contractors, Inc., 482 F.3d 247, 252 (3d Cir. 2007); Grayson v.
Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213
5

F.3d 113, 116-17 (3d Cir. 2000). "Dismissal without leave to amend is justified
only on the grounds of bad faith, undue delay, prejudice, or futility." Alston v.
Parker, 363 F.3d 229, 236 (3d Cir. 2004).

III.

DISCUSSION
Initially, the defendants point out, (Doc. 24, at 1), that the plaintiff did not

object to Judge Mehalchick’s recommendations that his Fourteenth
Amendment due process claim against all of the defendants regarding the
execution of an allegedly defective search warrant and seizure of over 450
items from his residence (Ninth Cause of Action) and his municipal liability
claim against Rush Township under Monell (Seventh Cause of Action) be
dismissed. In fact, the plaintiff states in his reply brief supporting his
objections, (Doc. 27, at 1), that the gravamen of his objections is the
application of the Heck favorable termination rule to his false arrest and false
imprisonment claims.
As mentioned, to the extent that no objections are raised regarding a
portion of a report and recommendation, the court should nonetheless ensure
that “there is no clear error on the face of the record” before accepting the
recommendation. Regarding his Fourteenth Amendment claim, the plaintiff
alleges that after his property was taken without due process or just
compensation, in May of 2013, a Schuylkill County Court judge found the
search warrant to be deficient and the search to be unlawful. The plaintiff also
6

avers that his seized property, which was not considered contraband and
unlawful to possess, was not returned to him. (Doc. 1-1, at 3-4). Judge
Mehalchick disagreed with the defendants that this claim was Heck barred.
(Doc. 22, at 13). However, she found that since the plaintiff’s Fourteenth
Amendment claim involved his due process rights and the defendants’ alleged
refusal to return his seized property to him or to pay him for it, and since the
state law provided adequate remedies for the plaintiff to seek the return of his
property, of which remedies he availed himself, the defendants did not deprive
him of his property without due process of law. The court finds Judge
Mehalchick’s discussion of the plaintiff’s due process claim, (Doc. 22, at 1415), to be correct. As she indicated, plaintiff had adequate state court
remedies to seek the return of his property seized from his residence and he
filed a motion for return of his property with the Schuylkill County Court. See
Guarrasi v. County of Bucks, 2011 WL 1226118, *9 (E.D. Pa. 3-29-11) (“The
Supreme Court has stated that random, unauthorized deprivations of property
by state officials, whether intentional or negligent, do not violate due process
if there is an adequate state post-deprivation remedy.”) (citing Hudson v.
Palmer, 468 U.S. 517, 533 (1984); Parrat v. Taylor, 451 U.S. 527, 537-43
(1981). Further, as the Guarrasi Court stated, “[c]ourts have consistently held
that Pennsylvania Rule of Criminal Procedure 588 provides an adequate postdeprivation remedy.” Id.
As such, the court will adopt the recommendation, (Doc. 22, at 15), that
7

the plaintiff’s Fourteenth Amendment due process claim against all of the
defendants, Ninth Cause of Action, (Doc. 1-1), be dismissed with prejudice for
failure to state a claim.
Insofar as the plaintiff also claims that his due process rights under the
Fifth Amendment were violated, (Doc. 1, at 4-5, 8), the court finds that these
claims are subject to dismissal. The plaintiff has no Fifth Amendment claim
since there is no alleged involvement by a federal actor. See Leventry v.
Watts, 2007 WL 1469038, *2 (W.D. Pa. May, 17, 2007); Hammond v. City of
Wilkes-Barre, 2012 WL 3542277, *4 (M.D.Pa. Aug. 14, 2012) (due process
claim under Fifth Amendment only applies to federal actors) (citing Caldwell
v. Beard, 324 F.Appx 186, 189 (3d Cir. 2009)). Thus, the plaintiff‘s Fifth
Amendment due process claims will be dismissed with prejudice. The court
finds futility in allowing plaintiff leave to amend his Fifth Amendment claims
since there is no federal actor defendant. See Grayson v. Mayview State
Hosp., 293 F.3d 103, 114 (3d Cir. 2002) (pro se Complaints should not be
dismissed without leave to amend unless “amendment would be inequitable
or futile”).
Next, Judge Mehalchick’s finding, (Doc. 22, at 15-17), that plaintiff’s
municipal liability claim against Rush Township under Monell (Seventh Cause
of Action) as well as his other claims against the Township, First and Ninth
Causes of Action, should be dismissed is not specifically addressed in the
plaintiff’s objections. In his Seventh claim, the plaintiff simply avers: “39) At all
8

times relevant hereto, defendants were acting or failing to act, pursuant to the
official policies or practices of the defendant Rush Township.” (Doc.1, at 11).
In order to impose civil liability upon any person under §1983, the
plaintiff must demonstrate that the defendant “exercised power possessed by
virtue of state law and made possible only because the wrongdoer is clothed
with the authority of state law.” Harvey v. Plains Twp. Police Dept., 635 F.3d
606, 609 (3d. Cir. 2011) (quoting Abbott v. Latshaw, 164 F.3d 141, 146 (3d.
Cir. 1998)). Since plaintiff names Rush Township as one of his defendants,
he must properly state a claim of municipal liability under Monell v.
Department of Social Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d
611 (1978). The defendant Rush Township is a municipal agency and the
standards annunciated in Monell apply to it. See Malles v. Lehigh County, 639
F.Supp.2d 566 (E.D. Pa. 2009). The defendant Township cannot be held
liable for the conduct of persons it supervises pursuant to respondeat
superior. Brickell v. Clinton County Prison Bd., 658 F.Supp. 2d 621, 626-27
(M.D. Pa. 2009). In order for plaintiff to successfully allege a constitutional
claim under §1983 against defendant Township, he must raise a Monell claim
alleging that the Township is a governmental entity and thus a “person” under
§1983 and, alleging that either a policy or lack of policy of the Township led
to the violation of his constitutional rights. See Monell v. New York Dept. of
Social Servs., supra; Kokinda v. Breiner, 557 F. Supp. 2d 581, 587 (M.D. Pa.
2008). Thus, defendant Township “[is] subject to liability [in a §1983 action]
9

to the extent [it] maintain[ed] an unconstitutional custom or policy that caused
the alleged constitutional violation.” Id. (citation omitted).
As Judge Mehalchick correctly concludes “[t]he complaint fails to
identify any policy or custom adopted by Rush Township that caused
[plaintiff’s] injury.” (Doc. 22, at 16-17). Therefore, she recommends that the
plaintiff’s First, Seventh and Ninth Causes of Action against the Township be
dismissed for failing to state a viable claim. The court agrees with Judge
Mehalchick that plaintiff has not stated a cognizable claim against Rush
Township under Monell. Also, as discussed above, the plaintiff’s Ninth Cause
of Action fails to state a claim against any defendant. As such, the court will
dismiss the plaintiff’s First, Seventh and Ninth Causes of Action against Rush
Township.
Further, Judge Mehalchick recognizes that if the plaintiff fails to state
a violation of his constitutional rights by the individual defendants employed
by Rush Township, he cannot maintain a Monell claim against the Township
itself. Thus, the plaintiff’s municipal liability claim against defendant Rush
Township under Monell is subject to dismissal if the plaintiff fails to state a
cognizable constitutional claim against any individual defendant associated
with the Township. See Deninno v. Municipality of Penn Hills, 269 Fed.Appx.
153, 158 (3d Cir. 2008) (“Even more fundamentally, there can be no municipal
liability here because we have determined that none of the individual
Defendants violated the Constitution.”). However, as discussed below, the
10

court finds that the plaintiff’s constitutional claims against defendants
Frederick and Sinton are not Heck barred and will be permitted to proceed at
this stage of the case. As such, the court will allow the plaintiff the opportunity
to amend his complaint with respect to his claims against Rush Township.
The plaintiff’s objections pertain to Judge Mehalchick’s finding that his
Fourth and Fourteenth Amendment unlawful incarceration claims under §1983
in his First Cause of Action were barred by Heck.2 The plaintiff also
references claims of malicious prosecution, false arrest and false
imprisonment in his First Cause of Action, (Doc. 1, at 8), and he raises
separate claims of malicious prosecution, false arrest and false imprisonment
seemingly under §1983 in his Second, Third and Fifth Causes of Action.
These claims relate to the time period commencing on March 1, 2012, when
the plaintiff was allegedly released from Carbon County Prison “to the streets”
without a detainer after he had a bench warrant hearing in criminal case CP-

2

Judge Mehalchick found that only the plaintiff’s unlawful incarceration
claims (First Cause of Action) were under §1983 and that his false arrest,
false imprisonment and malicious prosecution claims (Second, Third and Fifth
Causes of Action) were state law claims. In liberally construing the pro se
prisoner’s complaint as required, see Huertas v. Galaxy Asset Mgmt., 641
F.3d 28, 32 (3d Cir. 2011) (citation omitted), it is not clear to the court if his
malicious prosecution, false arrest and false imprisonment claims are under
§1983 or intended solely to be state law claims. (See Doc. 27, at 2-3). Thus,
the court will construe all of these claims as being under §1983 for present
purposes. In any event, the analysis as to the application of Heck is not
affected regardless of whether these claims are under §1983 or state law.
Further, the plaintiff will be afforded an opportunity to clarify his pleading on
this point.
11

13-CR-0000168-2012 and his bail was reinstated. The plaintiff states that
after he was released from Carbon County Prison without a detainer,
defendant Sinton arrested him “not on an outstanding bench warrant which
[Judge] Mehalchick stated was pending against [him] in Lehigh County C.C.P.
[Court of Common Pleas] (CP-39-CR-0004173-2011), but rather on an arrest
warrant maliciously authored by defendant Frederick.” (Doc. 23, at 2). The
plaintiff states that even if Lehigh County had an active bench warrant against
him, he was not detained on this warrant when he was released from Carbon
County Prison on March 1, 2012, and then immediately arrested by defendant
Sinton and other Rush Township police officers pursuant to an arrest warrant
executed by defendant Frederick “charging [him] with a factitious crime, with
full knowledge that the facts sworn to in the affidavit were wholly false.” The
plaintiff was then handcuffed and shackled, and transported in a police car to
Schuylkill County Prison. (Doc.1, at 4-5). The plaintiff alleges that he was
arraigned at the prison and then confined in the prison since he could not post
the $50,000 cash bail. The plaintiff alleges that he was illegally confined in
Schuylkill County Prison after his unlawful arrest and that he then remained
there until March 8, 2012, when he was transported and arraigned in Carbon
County on other criminal cases, Nos. CP-13-CR-000340 and CP-13-CR000343-2012. The plaintiff states that he was not able to post the bail in these
other cases and was remanded to Carbon County Prison. Thus, the relevant
time period pertaining to the plaintiff’s malicious prosecution, false arrest and
12

false imprisonment claims is March 1, 2012, through March 8, 2012. Also, the
only two individual defendants personally involved with these claims are
Sinton and Frederick. It is well settled that a plaintiff in a §1983 civil rights
action must show that each defendant was personally involved with the
alleged violation of his constitutional rights. See Sutton v. Rasheed, 323 F.3d
236, 249-250 (3d Cir. 2003). The plaintiff also alleges that: “28) At all times
relevant hereto, Officer Frederick and Officer Sinton acted pursuant to the
official policies and practices of Rush Township, where township officials are
vested with policy making authority by the township with respect to the
conduct of the police department therein.” (Doc. 1, at 7). As such, the plaintiff
also implicates the involvement of defendant Rush Township under Monell.
In his complaint, the plaintiff then alleges after his unlawful arrest on
March 1, 2012, and illegal confinement in prison based on the criminal
complaint defendant Frederick filed against him the following events occurred:
“12) On May 10, 2012, [Magisterial] District Justice Bayer dismissed said
charges [filed against him by defendant Frederick at a preliminary hearing]
due to the Commonwealth not being prepared or able to present any evidence
to make a prima facie showing of Postie's guilt or even that a crime occurred.
13) That same day Officer Frederick filed another warrant affidavit, further
holding Postie imprisoned with substantially the same claim and based on the
same false information and lies Officer Frederick averred to in the warrant
issued March 1, 2012. 14) Postie was again arraigned, but not until [M]ay 30,
13

2012, and continued committed [in prison] in lieu of $25,000.00 cash bail. 15)
On July 24, 2012, District Justice Bayer dismissed said charges again due to
the Commonwealth being unprepared and having no evidence to present and
was admonished by the court and instructed that it would not entertain the refiling of the charges within the district.” (Doc. 1, at 5). Thus, the plaintiff
alleges that he received a favorable termination regarding the charges
defendant Frederick filed against him and his arrest by defendant Sinton.
The plaintiff argues that since he was not subject to any valid criminal
charges or any valid sentence when he was detained and confined in
Schuylkill County Prison by defendants Sinton and Frederick during the
relevant time period, Heck does not apply to his malicious prosecution, false
arrest and false imprisonment claims. The plaintiff does not dispute that
Judge Mehalchick correctly found that after defendant Frederick filed the
charges against him, the Schuylkill County Court amended its sentencing
order on March 13, 2012, in an earlier case in which he was convicted of the
charges, No. CP-54-CR-0000939-2011, and that his effective date of this
prison sentence was changed from March 20, 2012, to February 28, 2012,
and that he was then given credit for the time he served in prison from March
1 through March 8, 2012, i.e., the relevant time of the instant case. (Doc. 23,
at 2). Judge Mehalchick specifically stated that in case No. CP-54-CR0000939-2011, the plaintiff pleaded guilty on February 16, 2012, and was
sentenced to a prison term of three to six months and that on March 13, 2012,
14

the court amended the effective date of his prison sentence to begin on
February 28, 2012. There is no dispute that the plaintiff did not appeal his
conviction and sentence in case No. CP-54-CR-0000939-2011. (Doc. 22, at
8). Nor is there any dispute that the plaintiff was given credit for the time he
served in prison from March 1 through March 8, 2012.
However, the plaintiff contends that Judge Mehalchick erroneously
concluded that at the time of his arrest on March 1, 2012, by defendant Sinton
based on the charges filed against him by defendant Frederick and his
subsequent confinement in Schuylkill County Prison, which arrest and
confinement formed the basis of his stated constitutional claims in this case,
he was not serving any lawful sentence imposed by any court. (Doc. 23, at 2).
The plaintiff also contends that Judge Mehalchick, (Doc. 11, at 11),
erroneously concluded that on February 20, 2012, he began serving a 12month prison sentence imposed by the Northumberland County Court, case
No. CP-49-CR-0000218, since he states that he was arrested in this case on
February 20, 2012, and held for only eight days and then released after a
bond hearing on February 28, 2012. The plaintiff states that on February 28,
2012, he was then transferred to Carbon County Prison pending a bench
warrant in case No. CP-13-CR-0000168-2012. However, as discussed above,
he indicates that on March 1, 2012, he was released from custody “to the
streets” without any Lehigh County detainer after a bench warrant hearing in
case No. CP-13-CR-0000168-2012 and his bail was reinstated. The plaintiff
15

then states that immediately after his release, defendant Sinton arrested him
on the charges filed against him by defendant Frederick on this same day.
As such, the plaintiff maintains that Heck is not implicated in his case
since his constitutional claims do not challenge the validity of any conviction
or sentence in any county court which has not yet been overturned on direct
or collateral appeal. The plaintiff reiterates that his stated constitutional claims
only challenge his March 1, 2012 arrest by defendant Sinton on the charges
defendant Frederick filed against him and his subsequent confinement on
these charges in Schuylkill County Prison until March 8, 2012. The plaintiff
also states that he meets one central element of his constitutional claims
since the charges defendant Frederick filed against were terminated in his
favor when they were dismissed on two occasions. While the time the plaintiff
was confined in Schulykill County Prison from March 1 through March 8,
2012, was later credited to his prison sentence in a different Schulykill County
case

(No.

CP-54-CR-0000939-2011)

when

his

original

sentence

commencement date was changed on March 13, 2012, from March 20, 2012
to February 28, 2012, the question remains as to whether Heck applies to the
plaintiff’s federal claims regarding the dismissed charges defendant Frederick
filed against him and to the 8-day period of alleged unlawful imprisonment
since this time of confinement was later rendered lawful by the amended
sentencing order in case No. CP-54-CR-0000939-2011. The defendants point
out that “Postie would have still had to serve eight days incarcerated at the
16

back end of [his] sentence [in case No. CP-54-CR-0000939-2011].” (Doc. 24,
at 2). As such, the defendants maintain “[t]o permit Postie to proceed with a
claim for monetary damages after he has been credited with time served for
the same period of time would condone an attack on the validity of the
retroactive sentence [in case No. CP-54-CR-0000939-2011], in contravention
of Heck v. Humphrey.” (Id., at 2-3). The court disagrees with the defendants
and finds that the plaintiff’s federal claims are attacking the constitutionality
of officers Frederick’s and Sinton’s conduct and their conduct allegedly did not
result in a lawful conviction and sentence.
Notwithstanding the fact that this 8-day period of confinement later
became part of a valid prison sentence in a separate and distinct case, No.
CP-54-CR-0000939-2011, as stated, the plaintiff’s present claims are
challenging the conduct of defendants Frederick and Sinton and the validity
of the underlying charges, allegedly based on known false information, which
defendant Frederick filed against him on March 1, 2012, and which originally
lead to his allegedly unlawful confinement. Thus, the plaintiff is not
challenging the validity of the conviction and sentence in case No. CP-54-CR0000939-2011, or the validity of any other sentence or conviction, even
though the alleged unlawful time of confinement later became part of his
sentence in case No. CP-54-CR-0000939-2011. As discussed, plaintiff
alleges that he was not serving any sentence at the time of his arrest by
defendant Sinton on March 1, 2012, regarding the charges defendant
17

Frederick filed against him, and he states that this is the conduct at issue in
his instant constitutional claims. Therefore, the plaintiff maintains that the
report and recommendation is both factually and legally incorrect.3
As mentioned, Judge Mehalchick found that the plaintiff’s constitutional
claims were barred under Heck v. Humphrey, 512 U.S. 477, 486-87 (1994),
until plaintiff can show that his several county convictions and sentences have
been invalidated or overturned via state court appeals or a petition for writ of
habeas corpus pursuant to 28 U.S.C. §2254. See Murphy v. Bloom, 443
Fed.Appx. 668, 669 (3d Cir. 2011); Rohn v. Horton, 508 Fed.Appx. at 172
(Heck “noted that if a successful §1983 claim would imply the invalidity of an
outstanding criminal judgment dismissal is required”). The Heck favorable
termination rule applies to §1983 civil rights actions. Murphy v. Bloom, 443
Fed.Appx. at 669 n. 2. Judge Mehalchick concluded that “on March 1, 2012,
the date when Postie’s allegedly unlawful detention commenced, he was in
the midst of serving a three- to six-month sentence for driving on a suspended
license imposed by the Schuylkill County Court of Common Pleas, which had
commenced on February 28, 2012. See Commonwealth v. Postie, No. CP-54CR-0000939-2011.” (Doc. 22, at 12). The defendants also state in their brief
opposing the plaintiff’s objections that “the public records reveal that Postie
was actually incarcerated during this [relevant] period of time on several
3

The plaintiff’s County Criminal Dockets for all of his case numbers can
be found at http://ujsportal.pacourts.us.
18

unrelated matters.” (Doc. 24, at 2). However, the docket in case No. CP-54CR-0000939-2011 reveals that the plaintiff, while on bail, pleaded guilty and
was sentenced to a prison term of three to six months on February 16,
2012,and he was to remain on bail until his sentence commencement date of
March 20, 2012. As such, plaintiff did not immediately begin serving his prison
sentence in this case on the date it was imposed, i.e., February 16, 2012. On
March 13, 2012, upon motion of plaintiff’s counsel, the court amended the
effective date of plaintiff’s prison sentence in this case to February 28, 2012.
Thus, on March 1 through March 8, 2012, the plaintiff was not serving his
sentence in case No. CP-54-CR-0000939-2011. The dockets in the plaintiff’s
criminal cases also show that initially from March 1, 2012 through March 8,
2012, the plaintiff was not serving any valid sentence in any case. The court
does not agree with the defendants that if the plaintiff’s present claims are
allowed to proceed, “after he has been credited with time served for the same
period of time would condone an attack on the validity of the restorative
sentence, in contravention of Heck v. Humphrey.” (Doc. 24, at 2-3). To the
contrary, the plaintiff is challenging the conduct of defendants Frederick and
Sinton which initially lead to his confinement during the relevant time, and he
seeks damages for this allegedly unconstitutional conduct.
Additionally, in Northumberland County Court, case No. CP-49-CR0000218, the docket shows that the plaintiff was arrested on February 20,
2012, that bail was originally set in the amount of $5,000 cash, that plaintiff
19

was confined in prison for eight days, and that the bail amount was changed
to $5,000 unsecured on February 28, 2012, resulting in the posting of bail and
in the release of the plaintiff from prison on this day. The plaintiff later pleaded
guilty to retail theft in this case on July 2, 2012, and he was sentenced to nine
days to 12 months on September 24, 2012, and he received credit for time
served from February 20, 2012 through February 28, 2012.
Moreover, the docket indicates that in the plaintiff’s Carbon County case
No. CP-13-CR-0000168-2012, bail was originally set on November 11, 2011,
in the amount of $4,000 cash and that plaintiff posted bail on November 14,
2011. On February 17, 2012, a bench warrant was issued since the plaintiff
failed to appear for his preliminary hearing and arraignment scheduled for
February 15 and 16, 2012, respectively. The plaintiff was arrested on the
bench warrant and remanded to the Carbon County Prison on February 29,
2012, and he had a bench warrant hearing on March 1, 2012. The Carbon
County Court issued an Order on March 1, 2012, and dismissed the bench
warrant and reinstated the plaintiff’s bail in the amount of $4,000 straight
cash. The court also directed the plaintiff to appear for his March 29, 2012
pre-trial conference. Since the plaintiff had previously posted bail in the case,
he was released from prison on March 1, 2012, regarding Carbon County
case No. CP-13-CR-0000168-2012.
Thus, on March 1, 2012, the plaintiff is correct that he was released
from custody “to the streets” without any Lehigh County detainer after a bench
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warrant hearing in his Carbon County case No. CP-13-CR-0000168-2012 and
his bail was reinstated. As plaintiff’s county dockets reflect, the plaintiff was
not serving any sentence in any of his criminal cases on March 1, 2012, when
he alleges that defendant Sinton unlawfully arrested him on false charges
defendant Frederick knowingly filed against him resulting in his 8-day
confinement in prison since he was not able to post bail. (Doc. 22, at 6).
Eventually, there is no dispute that these charges defendant Frederick filed
against the plaintiff were dismissed with prejudice. (Id., at 6-7).
It is well-settled that “[t]o prove malicious prosecution ... a plaintiff must
show that: (1) the defendants initiated a criminal proceeding; (2) the criminal
proceeding ended in plaintiff's favor; (3) the proceeding was initiated without
probable cause; (4) the defendants acted maliciously or for a purpose other
than bringing the plaintiff to justice; and (5) the plaintiff suffered deprivation
of liberty consistent with the concept of seizure as a consequence of a legal
proceeding.” Estate of Smith v. Marasco, 318 F.3d 497, 521 (3d Cir. 2003);
Kossler v. Crisanti, 564 F. 3d 181, 186 (3d Cir. 2009); Piazza v. Lakkis, 2012
WL 2007112, *7 (M.D. Pa. June 5, 2012) (citation omitted). “[A] claim for
malicious prosecution ‘permits damages for confinement imposed pursuant
to legal process.’” Piazza v. Lakkis, 2012 WL 2007112, *8 (citations omitted).
Further, “a claim for malicious prosecution seeks to remedy ‘the deprivation
of liberty accompanying prosecution, not prosecution itself.’” Piazza v. Lakkis,
2012 WL 2007112, *8 (citations omitted). Thus, “a Plaintiff’s claim for
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malicious prosecution begins not with an arrest, which is not pursuant to legal
process, but with the indictment.” Piazza v. Lakkis, 2012 WL 2007112, *8
(citations omitted).
A false arrest claim under §1983 also has an element requiring that the
plaintiff show the criminal proceeding was initiated without probable cause.
To succeed on a false arrest claim under §1983, the court in Kokinda v.
Breiner, 557 F. Supp. 2d 581, 592 (2008 M.D. Pa.), stated:
A claim under §1983 for false arrest/false imprisonment is
grounded in the Fourth Amendment guarantee against
unreasonable seizures. Garcia v. County of Bucks, 155
F.Supp.2d 259, 265 (E.D.Pa.2001) (citing Groman v. Twp. of
Manalapan, 47 F.3d 628, 636 (3d Cir.1995)). To maintain his false
arrest claims, “a plaintiff must show that the arresting officer
lacked probable cause to make the arrest.” Id. “Probable cause
exists when the totality of facts and circumstances are sufficient
to warrant an ordinary prudent officer to believe that the party
charged has committed an offense.” Id.
“[W]here the police lack probable cause to make an arrest, the
arrestee has a claim under §1983 for false imprisonment based
on a detention pursuant to that arrest.” Groman v. Twp. of
Manalapan, 47 F.3d 628, 636 (3d Cir.1995). However, unlike a
malicious prosecution claim, for which each criminal charge is
analyzed independently, a false arrest claim will fail if there was
probable cause to arrest for at least one of the offenses involved.
Johnson, 477 F.3d at 75; see also Barna v. City of Perth Amboy,
42 F.3d 809, 819 (3d Cir.1994) (holding that for an arrest to be
justified, “[p]robable cause need only exist as to any offense that
could be charged under the circumstances”).
See also Cummings v. City of Phila., 137 Fed. Appx. 504, 506 (3d Cir. 2005).
In order for Plaintiff to prevail on his malicious prosecution and false
imprisonment claims under §1983, he must satisfy each of the above stated
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elements. Kossler v. Crisanti, 564 F. 3d at 186. Since the charges filed
against plaintiff by defendants Frederick and Sinton were dismissed, Heck
does not bar the plaintiff’s constitutional claims. As such, Heck is not
implicated in this case. Thus, the plaintiff’s remedy attacking his March 1,
2012 arrest and subsequent 8-day confinement in prison can be sought under
§1983.
The defendants contend that even though the criminal complaints
defendant Frederick filed against the plaintiff, No. 65-2012 re-filed at No. 1512012, were both dismissed by the Magisterial District Court, defendant
Frederick eventually filed new charges against the plaintiff in criminal
complaint No. 151-2012 “for substantially similar criminal conduct” and this
case resulted in a guilty verdict “demonstrat[ing] that there was probable
[cause] for some of the charged offenses.” (Doc. 24, at 3). The court finds that
this argument is misplaced for present purposes in determining if the plaintiff’s
claims are Heck barred and is better suited at the summary judgment stage
of this case addressing the merits of the plaintiff’s §1983 claims with the filing
of evidence to support this argument.
Since the court will allow the plaintiff’s constitutional claims against
defendants Frederick and Sinton under §1983 to proceed, it will exercise its
supplemental jurisdiction over the plaintiff’s state law tort claims. The court will
also dismiss the plaintiff’s claims against defendant Rush Township under
Monell without prejudice. The plaintiff will also be afforded an opportunity to
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clarify exactly which claims against defendants Frederick and Sinton are
under §1983 or under state law. The plaintiff‘s due process claim under the
Fourteenth Amendment will be dismissed with prejudice. All of the plaintiff‘s
claims under the Fifth Amendment will be dismissed with prejudice.
Defendants Bachart and Herring will be dismissed with prejudice since their
personal involvement is only alleged with respect to the plaintiff’s due process
claim under the Fourteenth Amendment.
Finally, the plaintiff requests as relief, in part, for this court to issue a
declaratory judgment to declare that all of the acts he alleges were committed
by defendants Frederick and Sinton violated his constitutional rights. (Doc. 1,
at 14). In Blakeney v. Marsico, 340 Fed.Appx. 778, 780 (3d Cir. 2009), the
Third Circuit Court stated:
To satisfy the standing and “case or controversy” requirements of
Article III, a party seeking a declaratory judgment “must allege
facts from which it appears there is a substantial likelihood that he
will suffer injury in the future.” Bauer v. Texas, 341 F.3d 352, 358
(5th Cir.2003) (citing City of Los Angeles v. Lyons, 461 U.S. 95,
102-03, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983)). Here, Blakeney
seeks a declaration merely that defendants' “acts” and “policies”
violate the United States and Pennsylvania Constitutions. He
does not allege that he will be subjected to that alleged conduct
in the future. Moreover, even if defendants violated Blakeney's
rights in the past as he alleges, he is not entitled to a declaration
to that effect. See Brown v. Fauver, 819 F.2d 395, 399-400 (3d
Cir.1987) (directing District Court to dismiss prisoner's Section
1983 claim for prospective relief where appellant “has done
nothing more than allege past exposure to unconstitutional state
action”).
The plaintiff fails to allege that there is a substantial likelihood that he
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will suffer injury in the future if the court does not issue declaratory judgment.
In fact, as stated, the plaintiff was released from confinement on March 8,
2012, based on the allegedly false charges defendant Frederick filed against
him and these charges were dismissed. Further, the plaintiff does not allege
that there is a substantial likelihood that someday in the future he will be
returned to Schuylkill County Prison on the same charges and that he will
again be subject to the alleged unlawful conduct and suffer injury in the future.
Also, as the Court in Blakeney stated, even if the defendants violated the
plaintiff’s rights in the past as plaintiff alleges in his complaint, he is not
entitled to a declaration to that effect. Id. Therefore, because the plaintiff has
not met the standards necessary for the court to issue declaratory judgment,
the court will dismiss this request with prejudice, as it finds futility in allowing
the plaintiff to amend his complaint with regards to this relief request. See
Blakeney, supra.

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IV.

CONCLUSION
For the foregoing reasons, the court will adopt, in part, the report

recommendation of Judge Mehalchick, (Doc. 22), and plaintiff’s objection,
(Doc. 23), will be sustained, in part, regarding the finding that Heck barred his
constitutional claims against defendants Frederick and Sinton. The
defendants’ motion to dismiss, (Doc. 15), will be granted, in part, and denied,
in part. A separate order shall issue.
s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Date: March 17, 2015
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