Postie v. Frederick et al
Filing
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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 (Attachments: # 1 Unpublished Opinion(s), # 2 Unpublished Opinion(s), # 3 Unpublished Opinion(s), # 4 Unpublished Opinion(s))(bs)
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Only the Westlaw citation is currently available.
United States District Court,
E.D. Pennsylvania.
Joseph GUARRASI, Plaintiff
v.
COUNTY OF BUCKS et al., Defendants
Civil Action No. 10–1879.
March 29, 2011.
Memorandum
YOHN, District Judge.
*1 Joseph Guarrasi, a pro se state prisoner and former
attorney, brings this suit against twenty-two defendants
pursuant to 42 U.S.C. §§ 1981, 1982, 1983, 1985, 1986,
and 1987.FN1 Guarrasi alleges that the defendants violated
his rights under Articles I, IV, V, VI, VIII, and XIV of the
Constitution by depriving him of an adequate
post-deprivation remedy to retrieve his personal property
seized on March 2, 2004. Currently before the court are
four separate motions to dismiss pursuant to Federal Rule
of Civil Procedure 12(b)(6) filed by defendants Cuba,
Hower, Zartman, and Borough of Hatboro; a motion to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)
(5) or 12(b)(6) by County of Montgomery; and a joint
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) or, in the alternative, a motion for a more definite
statement, filed by defendants County of Bucks (“Bucks
County”), Kerner, McAteer, Carroll, Gibbons,
McDonough, Gorman, Lachman, Mosiniak, and Walp
(collectively, “the Bucks County defendants”). For the
reasons set forth below, I will grant all six motions to
dismiss.
FN1. The defendants are County of Bucks,
County of Montgomery, City of Hatboro
(actually Borough of Hatboro) and the following
individuals in their official and personal
capacities: Donald G. Mather, Norman Kerner,
Robert Hegele, Christopher McAteer, Timothy
Carroll, Thomas G. Gambardella, Diane E.
Gibbons, Martin McDonough, Robert M.
Gorman, Terry J. Lachman, Michael Mosiniak,
Bradley Zartman, Michael Walp, Pete Hower,
Thomas Cuba, Michael Samios, Lisa M. Fryling,
and unknown John Doe and Jane Doe, in custody
or control of plaintiff's personal property.
I. Factual and Procedural HistoryFN2
FN2. The following factual recitation is based on
the allegations of Guarrasi's complaint.
Guarrasi was arrested for various inchoate felonies FN3
and his personal property was seized after his homes,
office, vehicles, and person were searched on March 2,
2004, pursuant to a warrant and as a search incident to
arrest. (Compl.¶¶ 29, 37.) The seized property includes
deeds, titles to four vehicles, stocks, corporate kits to six
corporations, client files, over $10,000 from his safe and
over $2,000 from his wallet, five registered handguns and
a shotgun, household items, and credit and bank records as
well as personal records and various documents.FN4 (Id. ¶
3 1.) The money seized was not recorded on the inventory
receipt. (Id. ¶ 33, Ex. 1 “Warrant Inventory List.”) No
property was forfeited or placed into evidence “at the
termination of his criminal proceedings on May 25, 2005.”
(Id. ¶ 41.) FN5
FN3. On March 28, 2005, Guarrasi pleaded no
contest to a charge of attempted murder and
guilty to charges of attempted aggravated assault,
attempted kidnaping, attempted burglary, and
related counts.
FN4. There were also drugs and a laptop seized
that belonged to Mr. Falco, a renter of one of
Guarrasi's properties. (Id. ¶ 36.)
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FN5. He was found guilty but mentally ill and
was sentenced to six and a half to fifteen years of
imprisonment.
Guarrasi has continuously sought the return of his
property since the seizure occurred on March 2, 2004.FN6
(Id. ¶ 42.) Guarrasi, through his attorney Richard Fink,
attempted to retrieve his property immediately after the
completion of criminal proceedings on May 25, 2005. (Id.
¶ 46, Ex. 5 “Letter 9/23/2005 Fink.”) In a letter dated
November 3, 2005, Fink informed Guarrasi that he had
filed the petition for return of seized property. (Id. ¶ 46,
Ex. 5 “Letter 11/3/2005 Fink.”) From 2005 until 2008,
Fink worked with the prosecutor's office in an effort to
come to an agreement over what could be returned to
Guarrasi. (Id. ¶¶ 46–57.) Through a series of letters, Fink
updated Guarrasi about his conversations with Assistant
District Attorney Gambardella, in which Gambardella
assured Fink that all property without evidentiary value
would be returned. (Id.) In several letters, however, Fink
explained to Guarrasi that Gambardella would not “return
any evidence which might conceivably relate to the
evidence which the prosecution might use in a new
trial.”(Id. ¶ 49.)
FN6. Guarrasi has never sought the return of
Falco's property. (Id. ¶ 48.)
*2 In July 2006, Fink and Gambardella agreed to
come to a resolution regarding the return of property and
present it in the form of a stipulation to Judge Biehn of the
Court of Common Pleas of Bucks County. (Id. ¶¶ 51–52.)
But “defendants continue[d] to stall.” (Id. ¶ 53.)
Nevertheless, Fink continued to work with the prosecutor's
office. Fink explained to Guarrasi, however, that
notwithstanding Gambardella's promise to review
Guarrasi's requests for the return of his property, some
items were “contested by the District Attorney's office
since your case may be on post-sentence motions and/or
appeal, and should be approached at the conclusion of
those motions.” (Id. Ex. 9 “Letter 5/8/2006 Fink.”) Also,
Fink wrote that “on at least one occasion [Gambardella]
indicated that an appeal was pending. This would prevent
return of seized property.” (Id. ¶ 55, Ex. 14 “Letter
1/11/2007 Fink.”) Despite continued assurances that all
non-contraband, non-evidentiary property would be
returned, no resolution was reached and no property was
returned. (Id. ¶¶ 55–57.)
Then, Guarrasi received a letter from Gambardella on
May 31, 2007, stating that the detectives were too busy to
go through the inventory at that time to determine whether
Guarrasi's property should be returned, and that the
Commonwealth opposes the return of many of the items
listed in Guarrasi's petition for the following reasons:
(1) The items have evidentiary value and appeals have
not been exhausted.
(2) The items are contraband.
(3) The items are evidence of other crimes (as there is
evidence of alleged child pornography on the
computers, we oppose their return).
(4) The items are firearms, which you may not own or
possess as a result of your convictions
(5) The item relates to the informants and serves no
value to you.
(Id. Ex. 16 “Letter 5/31/2007 Gambardella.”)
Gambardella invited Guarrasi to submit a list of items that
Guarrasi wanted returned along with an explanation as to
why those items are not disqualified based on the reasons
listed above. (Id.) Guarrasi does not allege whether he
responded to Gambardella's letter.
Guarrasi petitioned the Court of Common Pleas of Bucks
County for the return of his property, FN7 and a hearing was
scheduled for January 23, 2008. (Id. ¶¶ 5 8–59.) The
Honorable Albert J. Cepparulo denied Guarrasi's motion,
stating, “We are here today on an open PCRA ... therefore
the petition for the return of property is denied as
untimely.” (Id. ¶ 59, Ex. 18 “Transcript 1/23/2008.”)
Guarrasi does not allege that he has appealed this order.
Nor does he allege whether his PCRA petition has been
resolved or is on appeal. Guarrasi sought a writ of
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mandamus from the Pennsylvania Supreme Court on
January 24, 2008, requesting a recusal, change of venue,
and the return of property. (Id. ¶ 60.) Guarrasi's new
counsel, Ronald Elgart, in a letter dated February 25,
2008, acknowledged the futility of Guarrasi's continued
motions for the return of property, explaining that the
property is “quite clearly not going to be released until you
have exhausted all of your post conviction appeals.” (Id.
¶ 61, Ex. 20 “Letter 2/5/2008 Elgart.”) From January 23,
2008, to October 1, 2009, the Court of Common Pleas of
Bucks County refused to hear his further motions. (Id. ¶
62.) On January 14, 2009, Guarrasi filed an interlocutory
appeal to the Superior Court of Pennsylvania, appealing a
December 18, 2008, order denying his motion for recusal.
(Id. ¶ 63, Ex. 21 “Time–Stamped Notice of Appeal.”) And
in a letter dated February 26, 2009, the Bucks County
Court Administrator advised Guarrasi that the court
declined to act on his renewed motion for recusal and
change of venue. (Id. ¶ 64.) Then, on May 26, 2009,
Guarrasi learned from an expert that he hired that renter
Falco, had not been arrested, charged, or convicted,
received an opportunity to challenge the validity of the
seizure and to request the return of his laptop at a hearing
scheduled a few months after the seizure. (Id. ¶ 39.)
FN7. Guarrasi alleges that he “again” petitioned
the court, (Id. ¶ 48), but it is unclear when he
first petitioned the court or how many times he
petitioned the court.
*3 Guarrasi received a letter on July 27, 2009, from
the Bucks County Solicitor's Office stating that $2,000 of
the money seized was, with Guarrasi's agreement,
forfeited. (Id. ¶ 65, Ex. 23 “Letter 7/21/2009 Bucks
County Solicitor.”) FN8 But Guarrasi claims that he never
agreed to the forfeiture. (Id. ¶ 72.) In response to
Guarrasi's request for the chain of custody and the alleged
forfeiture agreement, the Bucks County Solicitor
explained that the forfeiture was pursuant to a verbal
agreement made between Fink and Gambardella before
Judge Biehn “that took place in the hallway adjacent to
Courtroom 1;” the agreement was that the forfeited funds
could be used to purchase electronic surveillance
equipment.” (Id. ¶ 67, Ex. 25 “Letter 1/8/2010.”)
Gambardella believed that it was reduced to a writing or
order, but he could not find a copy, and that the money
was in the prosecutor's office's account and had not been
spent. (Id.) Guarrasi did not receive, however, a chain of
custody as requested. (Id. ¶ 68.) After hiring a private
investigator who could not find any evidence of a
forfeiture hearing, Guarrasi filed a right-to-know request.
(Id. ¶ 69.) On February 2, 2010, Bucks County Open
Records Officer Det. Lt. Gorman wrote to Guarrasi that
the money was deposited in the bank on July 7, 2005, by
order of Judge Biehn directing it be forfeited. (Id., Ex. 26
“Letter 2/2/2010 Gorman .”) Guarrasi alleges that the
letter did not provide a chain of custody or photocopy of
the currency forfeited.FN9 (Id. ¶¶ 69–70.) Guarrasi
questioned Fink about his participation in the forfeiture
agreement, but Fink denied making such an agreement.
(Id. ¶ 71.)
FN8. In the letter, the Assistant County Solicitor
writes, “Further, enclosed please find
Evidence/Property Receipt for the $2,000.00 in
cash which was seized and ultimately forfeited,
with your agreement, to the forfeiture fund.” (Id.
Ex. 23 “Letter 7/21/2009 Bucks County
Solicitor”) Guarrasi did not provide a copy of the
receipt for the $2,000 that was mentioned in the
letter.
In Exhibit 26, the Bucks County Open Records
Officer advised Guarrasi that the money had
been forfeited and deposited in the bank on
July 7, 2005, by order of Judge Biehn. (Id. Ex.
26 Ex. 26 “Letter 2/2/2010 Gorman.”) Two
letters from Fink in October and November
2006 suggest that Guarrasi suspected then that
his money had been forfeited. In response to
some questions submitted by Guarrasi on
October 5, 2006, Fink replied that “no money
had been forfeited in your case.” (Id. Ex. 12
“Letter 7/21/2009 Fink” .) And in replying to
a letter from Guarrasi dated November 1,
2006, Fink wrote “I don't know where the
‘alleged’ money given for the ‘alleged’ hit is.
If you're saying that no money was given, I
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guess there's nothing seized. If there was
money given and therefore was seized, it is
contraband.” (Id. Ex. 13 “Letter 11/7/2006
Fink .”)
FN9. While it is true that no photocopies were
p r o vid ed , Exhib it 2 6 includ es an
Evidence/Property Receipt sent by Det. Lt.
Gorman, which includes a description of the
chain of custody. In the letter, Det. Lt. Gorman
wrote that Guarrasi's request for a copy of the
$2,000 in U.S. Currency seized from him
(Evidence/Property Receipt, Control # 4666) has
been approved and “any chain of custody for the
same are enclosed.” (Id., Ex. 26 “Letter 2/2/2010
Gorman.”) An attachment to the letter states that
Money was signed into evidence on March 4,
2004. It was held in evidence, until it was
deposited into the bank on July 7th, 2005 by
Order of Judge Beihn, directing it to be
forfeited, and used by the County Detectives to
purchase equipment. No photocopies of the
money were ever produced.
(Id.) Also attached was Evidence/Property
Receipt # 4666, which included the chain of
custody of the $2,000 seized from Guarrasi.
(Id.) The receipt indicates that the money was
seized February 27, 2004. The receipt also has
a hand-written note that states the search
warrant and inventory sheet were attached, but
they were not included in the Exhibit.
Guarrasi filed his fifth return of property motion and
on March 1, 2010, he received notice that the court
declined to act upon the application. (Id. ¶¶ 73–74.)
Guarrasi alleges that also on March 1, 2010, he
conclusively learned that it is defendants' municipal policy
and custom, which is given force of law by the Bucks
County court, that no post-deprivation remedy for the
return of property exists until all post-conviction appeals
are exhausted. (Id. ¶¶ 44–45.)
Guarrasi filed his complaint on July 1, 2010. On October
1, 2010, defendant Cuba filed a motion to dismiss. On
October 8, 2010, the Bucks County defendants filed a
joint motion to dismiss or, in the alternative, a motion for
a more definitive statement. Then, on October 14, 2010,
defendant Hower filed a motion to dismiss. On January
11, 2011, defendant Zartman also filed a motion to
dismiss. Defendant Hatboro's motion to dismiss was filed
on January 17, 2011. Lastly, defendant Montgomery
County filed a motion to dismiss on January 24, 2011.
II. Legal Standard
“To survive a motion to dismiss [under Rule 12(b)(6)
], a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible
on its face.’ “ Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949
(2009).
*4 In evaluating a motion to dismiss, “the factual and
legal elements of a claim should be separated.” Fowler v.
UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.2009). The
court “must accept all of the complaint's well-pleaded
facts as true, but may disregard any legal conclusions.” Id.
at 210–11. The assumption of truth does not apply to legal
conclusions couched as factual allegations or to
“[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements.” Iqbal, 129
S.Ct. at 1949. Rather, the complaint must contain “
‘enough factual matter (taken as true) to suggest’ the
required element. This ‘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.”
Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d
Cir.2008) (quoting Twombly, 550 U.S. at 556) (internal
citations omitted).
III. Discussion
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In his five-count complaint, Guarrasi alleges that
defendants individually and as part of a conspiracy
violated 42 U.S.C. §§ 1981, 1982, 1983, 1985, 1986, and
1987 by depriving him of an adequate post-deprivation
remedy as required by the First, Fourth, Fifth, Eighth and
Fourteenth amendments as well as the Privileges and
Immunities clause.FN10 Guarrasi alleges that he did not
receive a meaningful opportunity to retrieve his property,
which was seized pursuant to a valid search warrant on
March 2, 2004, because of the defendants' custom and
policy of refusing post-deprivation remedies to convicted
inmates until all criminal appeals are complete. (Compl.¶
¶ 97, 102, 106, 112, 116.) Guarrasi also claims that
defendants violated his rights by failing to list the cash
seized on the inventory receipt, thus failing to maintain
and provide an adequate chain of custody.FN11
FN10. Guarrasi alleges that defendants violated
his rights under “the corresponding sections of
the Pennsylvania Constitution” as well.
Defendants Cuba, Hower, Zartman, and Hatboro
cite several cases from this district that have held
that the Pennsylvania Constitution does not
establish a private cause of action for money
damages. See, e.g., Ryan v. Gen. Mach. Prods.,
277 F.Supp.2d 585, 595 (E.D.Pa.2003) (holding
there is no private cause of action for damages
for plaintiff's claims under Article I, Section 28
of the Pennsylvania Constitution); Dooley v. City
of Philadelphia, 153 F.Supp.2d 628, 663
(E.D.Pa.2001) (holding that Article I, Section 7
does not establish a cause of action for damages);
Douris v. Schweiker, 229 F.Supp.2d 391, 405
(E.D.Pa.2002) (holding that there is no private
cause of action under the Pennsylvania
Constitution); see also Jones v. City of
Philadelphia, 890 A.2d 1188 (Pa.Cmmw.2006)
(holding that there is no private cause of action
under Article 1, Section 8).
The Supreme Court of Pennsylvania has not
ruled on the issue of whether there is a private
cause of action for damages under the state
constitution. Although in Jones, the
Commonwealth Court held that there is no
separate cause of action for monetary damages
under Article I, Section 8, the court implicitly
accepted the predicate notion that a private
right of action could exist under the
Pennsylvania Constitution. 890 A.2d at
1193–94 (undertaking an extensive analysis to
determine whether it was necessary for the
court to create a remedy under the
Pennsylvania Constitution.) Because of the
principles espoused in Jones, Guarrasi's claims
“raise a novel or complex issue of State law,”
a ground for which the court, in its discretion,
may decline to exercise jurisdiction. 28 U.S.C.
§ 1367(c)(1); see also Trump Hotels & Casino
Resorts v. Mirage Resorts, 140 F.3d 478, 487
(3d Cir.1998) (“A court may decline to
exercise supplemental jurisdiction over a state
law claim where ‘the claim raises a novel or
complex issue of state law.’ ”). Accordingly, I
will decline to exercise jurisdiction over
Guarrasi's claims under the Pennsylvania
Constitution and those claims will be
dismissed without prejudice.
FN11. Guarrasi asserts that his rights were also
violated when Gambardella directed $2,000 of
the cash seized on March 2, 2004 to be forfeited.
According to the complaint, the forfeiture
occurred because of a purported verbal
agreement between Gambardella and Fink, which
was never reduced to writing. Guarrasi denies
consenting to such an agreement and Fink has
denied making an agreement with Gambardella
on Guarrasi's behalf. The complaint does not
allege that the other defendants participated in
the forfeiture. Because this claim is alleged only
against Gambardella, who is not a party to any of
the motions considered herein, the forfeiture
claim will not be considered.
Many of the defendants before the court were also
defendants in Guarrasi's previous lawsuit before this court,
which I dismissed as to most claims. Guarrasi v. Gibbons,
No. 07–5475, 2008 U.S. Dist. LEXIS 81632 (E.D.Pa. Oct.
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15, 2008) [hereinafter Guarrasi I ]. Nevertheless,
Guarrasi's claims are not barred by the doctrine of res
judicata because he did not previously litigate to a final
judgment on the merits any claims for defendants' failure
to return his property. Guarrasi's claims are all
time-barred, however, as to the significant transactions by
the defendants alleged herein. Moreover, Guarrasi's claims
lack merit. Guarrasi fails to allege the basic elements
required to state claim under sections 1981, 1982, 1985,
1986, and 1987. The section 1983 claim also lacks merit
because Guarrasi availed himself of an adequate state
post-deprivation remedy. I will therefore grant the six
motions to dismiss.FN12
FN12. As a preliminary matter, defendants Cuba,
Hower, and Borough of Hatboro argue that
Guarrasi's claims relate to his arrest and
conviction and are therefore barred by the
Supreme Court's holding in Heck v. Humphrey,
512 U.S. 477 (1994). In that case, the Court held
that a section 1983 claim for “harm caused by
actions whose unlawfulness would render a
conviction or sentence invalid” is not cognizable
under section 1983 unless the plaintiff proves
that his conviction has already been invalidated.
Id. at 486–87. The Heck bar does not apply,
however, where “ ‘a § 1983 action, even if
successful, would not necessarily imply that the
plaintiff's conviction was unlawful.’ “
Macnamara v. Hess, 67 F. App'x 139, 144 (3d
Cir.2003) (nonprecedential) (quoting Heck, 512
U.S. 487 n. 7) (allowing suit for an illegal search
and seizure because such Fourth Amendment
violations “would not necessarily impugn the
validity of a conviction”). Guarrasi's suit is
therefore not barred by Heck because his claims
regarding the lack of post-deprivation remedy, if
successful, would not impugn the validity of his
conviction.
A. Guarrasi's Suit is Not Barred by Res Judicata
Borough of Hatboro argues that the doctrine of res
judicata bars Guarrasi from raising his claims because he
has already had a fair and full opportunity to litigate these
claims in his previous lawsuit in this court.FN13 In Guarrasi
I, Guarrasi raised a section 1983 claim against the Bucks
County custodian of property for failure to return his
property, but that claim was not actually litigated. Res
judicata serves as a “bar to relitigation of an adjudicated
claim between parties and those in privity with them .”
Transamerica Occidental Life Ins. Co., 292 F.3d 384, 392
(3d Cir.2002) (emphasis added). To establish that the
doctrine of res judicata applies, a party must demonstrate
the following: (1) the same parties or their privies are
involved in both suits; (2) both suits involve the same
cause of action; and (3) there was a final judgment on the
merits in the previous suit. Saudi v. Acomarit Mar.
Servs., 114 F. App'x 449, 454 (3d Cir.2004)
(nonprecedential) (citing Lubrizol Corp. v. Exxon Corp.,
929 F.2d 960, 963 (3d Cir.1991)). The “purpose of the
doctrine is to relieve the parties of the cost and vexation of
multiple suits, conserve judicial resources, prevent
inconsistent decisions, and encourage reliance on
adjudications.” Turner v. McCormack Baron Mgmt.
Servs., Inc., 449 F.3d 542, 551 (3d Cir.2006).
FN13. A court may take judicial notice of a prior
judicial opinion as a public record without
converting a motion to dismiss to a motion for
summary judgment. Lum v. Bank of America,
361 F.3d 217, 222 (3d Cir.2004). A court may
take notice “only to establish the existence of the
opinion, not for the truth of the facts asserted in
the opinion.” Id.
*5 The first element is satisfied because this suit
involves many of the same defendants that were involved
in the previous suit. All defendants before the court,
except for McDonough, Walp, Hower, Cuba, and Kerner
(in his individual capacity), were named defendants in
Guarrasi's first lawsuit. To determine whether the second
element is met, courts must employ a transactional
approach examining “ ‘whether the acts complained of
were the same, whether the material facts alleged in each
suit were the same, and whether the witnesses and
documentation required to prove such allegations were the
same.’ “ Duhaney v. AG of the United States, 621 F.3d
340, 348 (3d Cir.2010) (quoting United States v. Athlone
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Indus., Inc., 746 F.2d 977, 984 (3d Cir.1984)). In
Guarrasi I, I recognized Guarrasi's section 1983 “claim
against John Doe, Bucks County custodian of plaintiff's
personal property, that the government has failed to return
property seized during the search of the home.” 2008 U.S.
Dist. LEXIS 81632 at *21. Because Guarrasi's
constitutional claims in the present action stem from the
government's failure to return his seized property, they are
part of the same cause of action as that section 1983 claim.
But in Guarrasi I, the section 1983 claim was only raised
against the unnamed custodian of records; he did not raise
the claim against any of the other defendants.FN14
Guarrasi's current claims are not part of the same cause of
action as the claims that were actually raised against the
other defendants in Guarrasi I.
FN14. In Guarrasi I, Guarrasi alleged that
defendants unlawfully took possession of three of
his properties, transferred the deed to one of
those properties without authorization, and
otherwise possessed his personal property at each
of the three locations. 2008 U.S. Dist. LEXIS
81632 at *3–*4. He also raised many other
claims, such as discrimination, invasion if
privacy, municipal liability for fraud on the court
and false arrest, search and seizure outside the
scope of the search warrant, and harm to his
reputation. Id. The claims raised against the
defendants in Guarrasi I did not complain of the
same acts or include the facts as Guarrasi's
claims raised against defendants in this suit. See
Duhaney, 621 F.3d at 348.
The third element is also not met because there was
no final judgment on the merits. I issued an order on May
27, 2009, dismissing the unnamed custodian of records as
a party to the action because Guarrasi failed to comply
with a previous scheduling order to name the John Doe
defendant by April 20, 2009. Because the claim for failure
to return seized property was only raised against the
custodian, the dismissal of the John Doe defendant as a
party to the action effectively prevented Guarrasi from
pursuing this claim. The claim was not actually dismissed
on the merits.FN15 Guarrasi's claims are not barred the
doctrine of res judicata.
FN15. Federal Rule of Civil Procedure 41(b)
states, “Unless the dismissal order states
otherwise, a dismissal under this subdivision (b)
and any dismissal not under this rule—except
one for lack of jurisdiction, improper venue, or
failure to join a party under Rule 19—operates as
an adjudication on the merits.” (emphasis
added). The Supreme Court explained that the
“lack of jurisdiction” exception broadly
“encompass[es] those dismissals which are based
on a plaintiff's failure to comply with a
precondition requisite to the (c)ourt's going
forward to determine the merits of his
substantive claim.” Costello v. United States, 365
U.S. 265, 285 (1961). Rule 41(b) does not
change the common-law principle that “ ‘[i]f the
first suit was dismissed for defect of pleadings,
or parties, or a misconception of the form of
proceeding, or the want of jurisdiction, or was
disposed of on any ground which did not go to
the merits of the action, the judgment rendered
will prove no bar to another suit.” Id. at 286
(quoting Hughes v. United States, 4 Wall. 232,
237 (U.S.1866)); See also, e.g., Johnson v.
Boyd–Richardson, 650 F.2d 147, 149 (8th
Cir.1981) (“Accordingly, a dismissal for failure
to name the correct party is a dismissal for ‘lack
of jurisdiction’ for purposes of Rule 41(b).” );
Talley v. SEPTA, No. 93–3060, 1993 U.S. Dist.
LEXIS 16831, at *7–*9 (E.D.Pa.. Dec. 1, 1993)
(concluding that prior dismissal with prejudice
for failure to exhaust administrative remedies is
not final adjudication on the merits).
B. All Claims Are Barred by Applicable Statute of
Limitations
All defendants correctly argue that Guarrasi's claims
are time-barred. The court may consider a statute of
limitations issue in a motion to dismiss “where the
complaint facially shows noncompliance with the
limitations period and the affirmative defense [of the
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running of the statute of limitations] clearly appears on the
face of the pleading.” Oshiver v. Levin, 38 F.3d 1380,
1385 n. 1 (3d Cir.1994). Guarrasi's federal civil rights
claims under sections 1981, 1982, 1983, and 1985 are
subject to the state statute of limitations for personal injury
actions. See Jones v. R.R. Donnelley & Sons Co., 541 U.S.
369, 382 (2004) (applying the state statute of limitations
for section 1981 claims not arising out of an act of
Congress enacted after December 1, 1990); Burnett v.
Grattan, 468 U.S. 42, 49 (1984) (holding that “[i]t is now
settled that federal courts will turn to state law for statutes
of limitations in actions brought under these civil rights
statutes”). In Pennsylvania, this limitations period is two
years. 42 Pa. Cons.Stat. § 5524. Section 1986 claims,
however, are subject to a shorter one-year limitations
period. See 28 U.S.C. § 1986 (establishing that “no action
under the provisions of this section shall be sustained
which is not commenced within one year after the cause of
action has accrued”).
*6 Although state law determines the limitations
period, federal law governs the determination of when the
limitations period accrues. See Montgomery v. De Simone,
159 F.3d 120, 126 (3d Cir.1998). The limitations period
begins to run when the claimant “knew or had reason to
know of the injury that constitutes the basis of th[e]
action.” Sandutch v. Muroski, 684 F.2d 252, 254 (3d
Cir.1982). Whether the plaintiff actually knew of the
injury or knew that it constituted a legal wrong is
irrelevant; rather, the inquiry is when, through reasonable
diligence, was the actual injury knowable. Fassnacht v.
United States, No. 95–3624, 1996 U.S. Dist. LEXIS 1163,
at *7–*8 (E.D.Pa. Feb. 2, 1996) (citing Oshiver, 38 F.3d
at 1386)).
Guarrasi filed his complaint on July 1, 2010. For his
claims to be timely, Guarrasi must not have known or had
reason to know of the injuries that forms the basis of this
complaint before July 1, 2008. Guarrasi knew or should
have known of defendants' alleged failure to list the cash
seized on the inventory receipt on March 2, 2004, when
the search and seizure occurred. That claim is therefore
time-barred.
It is also clear from the face of Guarrasi's complaint
that any claim arising from defendants' failure to return his
property thus far is time-barred. Guarrasi alleges that the
defendants have had unlawful possession of his property
since March 2, 2004, and that he has continuously sought
the return of his property since then. (Id. ¶ 42.) Guarrasi,
through his attorney, filed a petition for the return of his
items as early as 2005. (Id. Ex. 5 “Letter 9/23/2005
Fink.”) Guarrasi received a letter from Fink on May 8,
2006, informing him that some of the items included in the
petition were “contested by the District Attorney's office
since your case may be on post-sentence motions and/or
appeal, and should be approached at the conclusion of
those motions.” (Id. Ex. 9 “Letter 5/8/2006 Fink.”)
Guarrasi also received a letter from Gambardella on May
31, 2007, stating the Commonwealth opposes the return on
many of the items in Guarrasi's petition for several
reasons, one of which was that the “items have evidentiary
value and appeals have not been exhausted.” FN16
FN16. Also, Guarrasi raised a section 1983 claim
for failure to return his property in Guarrasi I,
which was initially filed in the Western District
of Pennsylvania on November 20, 2007, before
being transferred to this court on December 21,
2007. This evidences Guarrasi's actual
knowledge of an alleged inadequate
post-deprivation remedy for the return of his
property by November 20, 2007
Then on January 23, 2008, the Court of Common
Pleas of Bucks County denied Guarrasi's petition for the
return of property as untimely; the judge concluded that
the seized property may be used as evidence in future
criminal proceedings if Guarrasi is so entitled as a result
of his post-conviction appeals. There was an ongoing
PCRA petition at that time, which could result in a new
trial. This was again confirmed in a letter dated February
25, 2008, in which Guarrasi's new counsel expressly
explained to Guarrasi that his property is “ ‘clearly not
going to be released until you have exhausted all of your
post conviction appeals.’ “ (Id. ¶ 6 1, Ex. 20.) Guarrasi has
not alleged that his PCRA petition and all appeals have
been resolved. From Guarrasi's own allegations there can
be no doubt that he knew and had reason to know that his
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post-deprivation remedy to retrieve his personal property
would be denied until his PCRA petition and all appeals
had been resolved and no new trial was granted. By the
time Guarrasi filed this suit on July 1, 2010, the claims
were well beyond the applicable limitations periods.
*7 Guarrasi argues that his claims are not time-barred,
because defendants' wrongful acts are “ongoing violations
of Plaintiff's Constitutional Rights from 3/2/2004 to date.”
“To establish that a claim falls within the continuing
violations theory, the plaintiff must ... demonstrate that at
least one act occurred within the filing period: ‘The crucial
question is whether any present violation exists.’ “ West v.
Phila. Elec. Co., 45 F.3d 744, 754–55 (3d Cir.Pa.1995)
(internal citations omitted) (recognizing continuous
violation theory in Title VII context). Even if defendants
have violated Guarrasi's constitutional rights by failing to
return his property, their retention of his property does not
constitute a continuing violation. Rather, the retention of
his property is an ongoing consequence of the alleged
violation. See Macnamara v. Blazer Enterprises, Inc., 67
F. App'x 139, 143–44 (3d Cir.2003) (”[T]he retention of
the seized property is only a consequence of the original
alleged illegal seizure and does not affect the date on
which the claim accrues). Guarrasi does not make any
allegations of new or continuing unlawful acts by
defendants within the filing period in furtherance of their
alleged scheme to retain his property. He cannot resurrect
a claim that has been barred by the statute of limitations by
merely repeating motions or requests that have been made
before and rejected.
C. Guarrasi Failed to Sufficiently Plead Elements to
State Claims under Sections 1981, 1982, 1985, 1986,
and 1987
Even if the claims were not time-barred, Guarrasi's
claims could not withstand a motion to dismiss, because
he has not sufficiently alleged the necessary elements to
state a claim under the various civil rights statutes.
To state a claim under sections 1981 and 1982, a
plaintiff must allege that the defendant intentionally acted
in violation of the plaintiff's rights because of the
plaintiff's race, ethnicity, or ancestry. See Saint Francis
Coll. v. Al–Khazraji, 481 U.S. 604, 613 (1987). Guarrasi
fails to allege any facts in his complaint asserting
invidious discrimination based on his race, ethnicity, or
ancestry. Rather, Guarrasi claims that he belongs to a class
of incarcerated individuals. This is not sufficient to state
a claim under section 1981 or 1982.
Guarrasi has also failed to sufficiently plead the elements
of a claim under sections 1985 and 1986. Section 1985(3)
permits a plaintiff to bring an action if injured by a
conspiracy formed “for the purpose of depriving, either
directly or indirectly, any person or class of persons of the
equal protection of the laws, or of equal privileges and
immunities under the laws.” FN17 It does not provide
“substantive rights itself; it merely provides a remedy for
violation of the rights it designates.” Great Am. Fed. Sav.
& Loan Ass'n v. Novotny, 442 U.S. 366, 372 (1979). In a
line of cases beginning with Griffin v. Breckenridge, 403
U.S. 88 (1971), the Supreme Court clarified what a
plaintiff must allege to state a claim under section
1985(3): “(1) a conspiracy; (2) for the purpose of
depriving, either directly or indirectly, any person or class
of persons of the equal protection of the laws, or of equal
privileges and immunities under the laws; and (3) an act in
furtherance of the conspiracy; (4) whereby a person is
either injured in his person or property or deprived of any
right or privilege of a citizen of the United States.” United
Bhd. of Carpenters & Joiners v. Scott, 463 U.S. 825,
828–29(1983) (citing Griffin, 403 U.S. at 102–03). A
plaintiff must also allege that the defendants have acted
with “some racial, or perhaps otherwise class-based,
invidiously discriminatory animus.” Bray v. Alexandria
Women's Health Clinic, 506 U.S. 263, 268–69 (1993)
(internal quotation marks and citation omitted); Farber v.
City of Paterson, 440 F.3d 131, 135 (3d Cir.2006) (“[A]
plaintiff must allege both that the conspiracy was
motivated by discriminatory animus against an identifiable
class and that the discrimination against the identifiable
class was invidious”).
FN17. Subsections (1) and (2) of section 1985
are inapplicable. Section 1985(1) prohibits
conspiracies to prevent individuals from holding
office or discharging official duties. Section
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1985(2) prohibits conspiracies to prevent
witnesses from testifying in court, injuring
witnesses who have testified, or attempting to
influence or injure grand or petit jurors. Guarrasi
does not allege any conduct covered by these
provisions.
*8 Guarrasi has not alleged the requisite facts to
establish a conspiracy, nor has he pleaded requisite facts
to prove invidious discrimination. A plaintiff alleging
conspiracy under section 1985(3) “must set forth facts
from which a conspiratorial agreement between the
defendants can be inferred.” Brookhart v. Rohr, 385 F.
Appx. 67, 70 (3d Cir.Pa.2010) (citing Bray v. Alexandria
Women's Health Clinic, 506 U.S. 263, 267–68 (1993));
see also Capogrosso v. Supreme Court of N.J., 588 F.3d
180, 185 (3d Cir.2009) ( “[A]llegations of a conspiracy
must provide some factual basis to support the existence
of the elements of a conspiracy: agreement and concerted
action.”); Alfaro v. E.F. Hutton & Co., Inc., 606 F.Supp.
1100, 1117–18 (explaining that although plaintiffs “need
not ... describe the conspiracy and its formation in great
detail,” they must “describe the general composition of the
conspiracy, some or all of its broad objectives, and
defendant's general role in that conspiracy”). Guarrasi
makes no factual allegations demonstrating an agreement
among the defendants to deprive him of his property.
Rather, he conclusively asserts that defendants acted in
concert with the intent of violating his constitutional
rights. This is merely a legal conclusion couched as a
factual allegation. Guarrasi's conclusive allegations of
conspiracy are insufficient to withstand a motion to
dismiss.
Because Guarrasi fails to make a plausible section
1985 claim, Guarrasi's claim of nonfeasance under section
1986 also fails. See Rogin v. Bensalem Twp., 616 F.2d
680, 696 (3d Cir.1980) (“Because transgressions of §
1986 by definition depend on a preexisting violation of §
1985, if the claimant does not set forth a cause of action
under the latter, its claim under the former necessarily
must fail also.”).
Lastly, Section 1987 requires federal officials to institute
actions against individuals who violate 42 U.S.C. § 1990.
Guarrasi does not allege any facts or legal theories
implicating federal officials or section 1990. More
importantly, “[o]n its face, § 1987 does not authorize a
private right of action.” Carpenter v. Ashby, 351 F. App'x
684, 685 (3d Cir.2009) (non-precedential).
D. Section 1983 Claims Also Lack Merit
“To state a § 1983 claim, a plaintiff must demonstrate
the defendant, acting under color of state law, deprived
him or her of a right secured by the Constitution or the
laws of the United States.” Kaucher v. County of Bucks,
455 F.3d 418, 423 (3d Cir.2006) (citing Am. Mfrs. Mut.
Ins. Co. v. Sullivan, 526 U.S. 40, 49–50 (1999)). Guarrasi
claims that defendants, acting individually and as part of
a conspiracy, under the color of state law, violated his
Fourteenth Amendment rights to procedural due process,
substantive due process, and equal protection under the
law. The procedural due process claims fail as to the
individual and municipal defendants because Guarrasi
availed himself of an adequate post-deprivation remedy
provided by Pennsylvania. Guarrasi has not sufficiently
pleaded plausible claims of substantive due process or
equal protection violations.
1. Procedural Due Process
*9 Guarrasi has not sufficiently alleged a section 1983
procedural due process claim against any of the
defendants. First, Guarrasi has not sufficiently alleged that
defendants conspired to violate his constitutional rights in
violation of section 1983. See Capogrosso, 588 F.3d at
185 (“[A]llegations of a conspiracy must provide some
factual basis to support the existence of the elements of a
conspiracy: agreement and concerted action.”); Alfaro v.
E.F. Hutton & Co., Inc., 606 F.Supp. 1100, 1117–18
(explaining that although plaintiffs “need not ... describe
the conspiracy and its formation in great detail,” they must
“describe the general composition of the conspiracy, some
or all of its broad objectives, and defendant's general role
in that conspiracy”). Guarrasi makes no factual allegations
plausibly stating an agreement among the defendants to
deprive him of his property. Rather, he conclusively
asserts that defendants acted in concert with the intent of
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violating his constitutional rights. Guarrasi's conclusive
allegations of conspiracy are insufficient to withstand a
motion to dismiss.
a. Individual Defendants Are Entitled To Qualified
Immunity
Guarrasi's claims against the individual defendants
fail because the defendants are entitled to qualified
immunity. Qualified immunity is an immunity from suit,
rather than a defense to liability, and must therefore be
resolved at the earliest possible stage possible in litigation.
Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 815
(2009). Government officials are entitled to qualified
immunity from suit under section 1983 if “their conduct
does not violate clearly established statutory or
constitutional rights of which a reasonable person would
have known.” Id. (quoting Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)); see also Sharrar v. Felsing, 128 F.3d
.810, 826 (3d Cir.1997). Qualified immunity protects “all
but the plainly incompetent or those who knowingly
violate the law.” Malley v. Briggs, 475 U.S. 335, 341
(1986). The defendant has the burden of pleading and
proving qualified immunity. Harlow, 457 U.S. at 815.
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. Hudson v. Palmer, 468 U.S. 517, 533 (1984)
(intentional deprivation); Parratt v. Taylor, 451 U.S. 527,
537–43 (1981) (negligent deprivation). Courts have
consistently held that Pennsylvania Rule of Criminal
Procedure 588 provides an adequate post-deprivation
remedy.FN18 Welsch v. Twp. of Upper Darby, No.
07–4578, 2008 U.S. Dist. LEXIS 65500, at *20 (E.D.Pa.
Aug. 26, 2008); Taylor v. Naylor, 2006 U.S. Dist. LEXIS
27319, at *1 (W.D.Pa. Apr. 26, 2006); Marsh v. Ladd,
2004 U.S. Dist. LEXIS 22195, at *22 (E.D.Pa. Oct. 27,
2004); Potts v. City of Phila., 224 F.Supp.2d 919, 938
(E.D.Pa.2002). Guarrasi petitioned the Court of Common
Pleas of Bucks County for the return of his property and
therefore availed himself of this post-deprivation remedy.
It would not have been clear to reasonable officials that
defendants' individual actions, in light of Pennsylvania's
adequate post-deprivation remedy, violated a clearly
established constitutional right. Guarrasi's claim therefore
fails because even assuming that all individual defendants,
acting under color of state law, deprived Guarrasi of his
property, they are entitled to qualified immunity.
FN18. Pennsylvania Rule of Criminal Procedure
588 provides that
(A) A person aggrieved by a search and
seizure, whether or not executed pursuant to a
warrant, may move for return of the property
on the ground that he or she is entitled to
lawful possession thereof. Such motion shall
be filed in the court of common pleas for the
judicial district in which the property was
seized.
(B) The judge hearing such motion shall
receive evidence on any issue of fact necessary
to the decision thereon. If the motion is
granted, the property shall be restored unless
the court determines that such property is
contraband, in which case the court may order
the property be forfeited
b. Municipal Defendants Did Not Cause Deprivation of
Property
*10 Guarrasi's due process claims also fail against the
municipal defendants. A municipality is liable under
section 1983 “only where the municipality itself causes the
constitutional violation at issue.” City of Canton v. Harris,
489 U.S. 378, 385 (1989). “ ‘It is only when the execution
of the government's policy or custom ... inflicts the injury
that the municipality may be held liable .’ “ A municipal
policy or custom can be either a formal regulation or a
“widespread practice that, although not authorized by
written law or express municipal policy, is so ‘permanent
and well settled as to constitute a ‘custom or usage’ with
the force of law.” City of St. Louis v. Praprotonik, 485
U.S. 112, 127 (1988) (citations omitted). There must be a
“direct causal link between a municipal policy or custom
and the alleged constitutional deprivation.” City of
Canton, 489 U.S. at 385.
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Here, Guarrasi makes no allegations regarding any
custom or policy of the Borough of Hatboro or
Montgomery County, so no claim of municipal liability is
raised against them. Guarrasi does, however, identify a
Bucks County “policy and custom, which is given the
force of law, that no post deprivation return of property
motion will be heard on the merits until after all post
conviction appeals are concluded, which can result in
years or even decades of post deprivation remedy delays.”
FN19
(Compl.¶ 45.) Guarrasi was informed by his attorney
at the time that the policy is “official from the Bucks
County District Attorney's Office (by D.A. Diane E.
Gibbons).” (Id. ¶ 50.)
FN19. Guarrasi alleges that “Defendants have a
Municipal custom or policy,” (Compl.¶ 45), but
the complaint and attached exhibits state that the
policy is an official Bucks County policy. (See
e.g., Id. ¶ 50 (policy “is official from the Bucks
County District Attorney's Office (by D.A. Diane
E. Gibbons)”).)
But as Bucks County argues, Guarrasi has not alleged
a causal link between the Bucks County policy and the
alleged unconstitutional deprivation of his property.
Determining causation in section 1983 claims requires
using tort law causation analysis. Egervary v. Young, 366
F.3d 238, 246 (3d Cir.2004) (citing Hector v. Watt, 235
F.3d 154, 160 (3d Cir.2001)). A section 1983 defendant is
a “proximate cause” of the injury if his conduct was a
substantial factor in bringing about harm to another. Id.
(concluding that an order or judgment by a judicial officer
may be a superseding cause that severs the chain of
causation if the officer was not misled as to the facts of the
situation but misapplied the law).
The process by which an individual may retrieve his
property that was seized pursuant to valid search warrant
in Pennsylvania is via a motion for the return of property
to the court of common pleas for the judicial district in
which the property was seized. Guarrasi does not allege
that the Bucks County custom or policy interfered with his
ability to use this process. Instead, he alleges that he was
able to access the state court by petitioning for the return
of his property several times and received a hearing before
the Honorable Albert J. Cepparulo on January 23, 2008.
Although Guarrasi, through his attorney, unsuccessfully
attempted to retrieve his property by reaching out directly
to the Bucks County prosecutor's office, there is nothing
in Guarrasi's complaint to suggest that the Bucks County
policy interfered with Guarrasi's ability to file a petition in
the Court of Common Pleas of Bucks County. Therefore,
Guarrasi has not sufficiently alleged that the Bucks County
policy denied him a meaningful post-deprivation remedy.
*11 Guarrasi argues that the Pennsylvania Rules of
Criminal Procedure offers only vehicles for pre-trial
motions for the return of property. But that is not accurate.
The Rule does not so state. See e.g., Commonwealth v.
Janda, 2011 Pa.Super. LEXIS 32, at *5 (Feb. 10, 2011)
(“Following his conviction and sentencing, Janda filed a
timely post-sentence motion seeking a reduction in
restitution, return of property, and challenging the
discretionary aspects of his sentence.”); Commonwealth v.
Durham, 9 A.3d 641, (finding that after being sentenced,
appellant “filed a variety of pro se motions, one of which
was a motion for return of property”). Also, Guarrasi has
filed several post-trial motions for the return of his
property in the Court of Common Pleas of Bucks County,
beginning in November 2005, and was provided a hearing
on January 23, 2008.
On January 23, 2008, Judge Cepparulo decided that
Guarrasi's petition was untimely because Guarrasi's
property had potential evidentiary value for future
criminal proceedings, a very reasonable and unassailable
position; it is therefore the court's judgment that ultimately
deprived Guarrasi of his property.FN20 In fact, Guarrasi
makes no allegations in his complaint regarding
defendants' conduct after the January 23, 2008, hearing.
Instead, Guarrasi describes his repeated but identical
motions filed with the court and attempts to appeal other
issues unrelated to the decision. This is because the court
determined his property rights, not the Bucks County
prosecutor's office. FN21 Therefore, Guarrasi cannot state a
plausible claim that the Bucks County policy caused the
deprivation of his property.
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FN20. “[I]t is axiomatic that, in any given case,
the responsibility for determining the governing
law and procedures lies with the judge.”
Egervary, 366 F.3d at 249 Even if Judge
Cepparulo's decision were legally erroneous or
unconstitutional, Guarrasi does not allege that
the judge was misled as to the facts; thus, it
would constitute a superseding cause. Id. at
247–48 (explaining that an order or judgment by
a judicial officer may be a superseding cause that
severs the chain of causation if the officer was
not misled as to the facts of the situation but
misapplied the law).
FN21. Because Guarrasi's alleged deprivations
were caused by the state court's decision, rather
than defendants' actions, his claims are probably
barred by the Rooker–Feldman doctrine, which
divests a federal court of jurisdiction if the relief
sought requires overruling or voiding a state
court decision. See Turner v. Crawford, 449 F.3d
542, 547 (3d Cir.2006). There is no need to
discuss the application of Rooker–Feldman to
Guarrasi's claims, however, because the motions
to dismiss have been granted on other grounds.
2. Substantive Due Process
Guarrasi has also alleged that the defendants'
“practices, acts, policy, custom and invidious
discrimination is irrational, it shocks the conscience, it is
substantially unfair, and it is a deliberate deprivation of
Plaintiff's property rights.” (Compl.¶ 85.) “[T]he Due
Process Clause contains a substantive component that bars
certain arbitrary, wrongful government actions ‘regardless
of the fairness of the procedures used to implement them.’
“ Newman v. Beard, 617 F.3d 775, 782 (3d Cir.2010)
(quoting Zinermon v. Burch, 494 U.S. 113, 125 (1990)).
“[T]o prevail on a substantive due process claim, ‘a
plaintiff must prove the particular interest at issue is
protected by the substantive due process clause and the
government's deprivation of that protected interest shocks
the conscience.’ “ Chambers v. Sch. Dist. of Phila. Bd. Of
Educ., 587 F.3d 176, 190 (3d Cir.2009) (quoting Chainey
v. Street, 523 F.3d 200, 219 (3d Cir.2008)). The Third
Circuit has held that “ ‘ownership is a property interest
worthy of substantive due process protection.’ “ Chainey,
523 F.3d at 219 (quoting DeBlasio v. Zoning Bd. of
Adjustment, 53 F.3d 592, 600 (3d Cir.1995), overruled on
other grounds by United Artists Theatre Circuit v. Twp. of
Warrington, 316 F.3d 392, 401 (3d Cir.2003)). But
Guarrasi has not alleged any action by defendants that
shocks the conscience. He therefore has not plausibly
alleged that defendants violated his substantive
due-process rights.
3. Equal Protection
*12 Guarrasi alleges that defendants denied him equal
protection of the law on the basis of his status as a
convicted, incarcerated individual. (Compl.¶¶ 83,
102–04.) To support this claim, Guarrasi alleges that
Falco, who was not arrested, charged, or convicted, was
provided with notice and a meaningful opportunity to be
heard at a post-deprivation hearing within three months of
the search and seizure on March 2, 2004. (Id. ¶¶ 39,
102–04.) Guarrasi alleges that he has not yet been
provided a similar post-deprivation remedy, because
defendants intentionally discriminate against individuals
who are arrested and convicted. (Id. ¶¶ 102–04.)
The Equal Protection Clause provides that states shall
not “deny to any person within its jurisdiction the equal
protection of the laws.” U.S. Const. amend. XIV, § 1. It
“is not a command that all persons be treated alike but,
rather, ‘a direction that all persons similarly situated
should be treated alike.’ “ Artway v. Attorney Gen., 81
F.3d 1235, 1267 (3d Cir.1996) (quoting City of Cleburne,
v. Cleburne Living Center, 473 U.S. 432, 439 (1985)).
The level of scrutiny applied to determine whether the
classifications comply with the equal protection clause
differs depending on the type of classification. Protected
classifications, such as those based on race, religion, and
alienage, and those affecting fundamental rights, are
subject to heightened scrutiny. Id. Other classifications
need only be rationally related to a legitimate government
goal. Id. (citing Chapman v. United States, 500 U.S. 453,
465 (1991)).
Incarcerated individuals do not form a protected class.
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Different treatment based on this classification need only
be rationally related to a legitimate government goal.
Delaying the return of seized property to individuals who
are arrested, charged, and tried for criminal offenses is
rationally related to a legitimate government goal of
preserving evidence for trial and subsequent collateral
proceedings by the defendant. Moreover, Falco was never
prosecuted and therefore was not subject to a trial so that
he was clearly not similarly situated to Guarrasi. Guarrasi
has thus not stated a plausible section 1983 claim for
violation of the equal protection clause.
4. Municipal Liability for Failure to Train Officers in
Recording Seized Evidence and Maintaining Chain of
Custody
related to the injury. Guarrasi alleges that “proper training
would have avoided the use, loss, damage and forfeiture
of Plaintiff's property in violation of Plaintiff's
Constitutional Rights” (Id. ¶ 89.) But apart from $2,000
forfeited because of Gambardella's purported agreement
with Fink, which Guarrasi denies consenting to, Guarrasi
has not alleged that his property was otherwise used, lost,
or forfeited because of an inadequate chain of custody. Cf.
United States v. Mohammad, 95 F.Supp.2d 236,
(D.N.J.2000) (awarding defendant estimated monetary
damages for lost watch that he alleges was seized upon his
arrest although government denies possession of item
because no inventory receipt was created). And the money
was forfeited by court order.
IV. Conclusion
Guarrasi also alleges that “[o]n May 27, 2009,
Plaintiff did learn from Plaintiff's expert that the
Defendants did fail to train and supervise their
subordinates, agents and employees in the proper
requirements of due process, chain of custody, and in
evidence authenticity maintenance.”(Compl.¶ 89.) A
municipality may be liable under section 1983 for
inadequate training of police officers “only where the
failure to train amounts to deliberate indifference to the
rights of persons with whom the police come into
contact.” City of Canton, 489 U.S. at 388. “That a
particular officer may be unsatisfactorily trained will not
alone suffice to fasten liability on the city, for the officer's
shortcomings may have resulted from factors other than a
faulty training program.” Id. at 390–91. Liability for
deficient training attaches only if the deficiency in training
is “closely related to the ultimate injury.” Id. at 391.
*13 Guarrasi has not provided any factual basis for
his expert's opinion that the three municipal defendants
failed to train their employees. Rather, he alleges only that
the money seized on March 2, 2004, was not properly
listed on the inventory sheet and that no photocopies of
the bills seized were provided to him by defendants.
(Compl.¶¶ 33, 89.) These allegations are insufficient to
state a plausible claim of municipal liability for failure to
train.
Guarrasi alleges that defendants violated his
constitutional rights by depriving him of a meaningful
post-deprivation remedy to retrieve his seized property.
Guarrasi's claims are time-barred. Moreover, Guarrasi's
claims lack merit because he did not sufficiently plead the
elements required to state a plausible claim under sections
1981, 1982, 1985, and 1986, and there is no private right
of action under section 1987. Finally, Guarrasi's section
1983 claim fails against the individual defendants because
they are entitled to qualified immunity. And the section
1983 claim against Bucks County fails because although
Guarrasi sufficiently alleged a municipal policy, he did
avail himself of an adequate post-deprivation remedy
provided by the Pennsylvania Rules of Criminal
Procedure. The municipal policy at issue, therefore, could
not have caused his deprivation. For these reasons, I will
grant the defendants' motions to dismiss.
An appropriate order accompanies this memorandum.
E.D.Pa.,2011.
Guarrasi v. County of Bucks
Not Reported in F.Supp.2d, 2011 WL 1226118 (E.D.Pa.)
END OF DOCUMENT
Moreover, any alleged deficiencies in training are not
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