IN THE UNITED STATES DISTRICT COURT FOR THE...
Transcript of IN THE UNITED STATES DISTRICT COURT FOR THE...
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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DOUGLAS GOLDHABER, ) Civil Action Law Plaintiff ) No. 3:06-CV-00134-KRG ) v. ) ) WILLIAM HIGGINS, BRIAN CLARK, ) KEITH BOWSER, MICHAEL GEORGE, ) KENNETH BENTON, PAUL ) WYPIJEWSKI, BRADLEY E. HERSHEY, ) and the BEDFORD COUNTY PRISON ) BOARD, ) Defendants, ) Jury Trial Demanded
BRIEF IN OPOSITION TO MOTION TO DISMISS BY DEFENDANTS BEDFORD COUNTY PRISON BOARD, WILLIAM HIGGINS, BRIAN
CLARK, KEITH BOWSER, AND PAUL WYPIJEWSKI I.) FACTUAL AND PROCEDURAL HISTORY
On April 9th, 2004, the plaintiff Douglas R. Goldhaber was arrested and
charged with the offense of Driving after Imbibing. For approximately nine and
one-half (9 1/2) years prior to this date, plaintiff had been a criminal defense
attorney practicing in Bedford County, Pennsylvania; for approximately half of
this time frame, plaintiff served in the Office of the Public Defender for Bedford
County serving as the first assistant public defender of Bedford County and then as
Chief Public Defender. In the latter part of 1999, beginning of 2000, defendant
Higgins was hired as the assistant District Attorney of Bedford County. For the
first several years after defendant Higgins had been hired as assistant District
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Attorney of Bedford County, plaintiff and defendant Higgins socialized with one
another, with defendant Higgins confiding in plaintiff regarding business dealings
he was engaged in. Defendant Higgins had explained to plaintiff that he had at
least two (2) elderly persons, one (1) male and (1) female, who he was not related
to and who had no relatives of which he was aware. These persons lived in the
Philadelphia area and defendant Higgins had convinced him to transfer title to their
homes into his name, his wife's name and a friend of his. Defendant Higgins
further bragged how he would then borrow money against these homes, use some
of the money to make some repairs and then intended to sell the homes and keep
the money. Defendant Higgins would also brag about how he had moved these
two people to Bedford County, Pennsylvania, and was receiving their social
security monies; defendant Higgins at one point attempted to have their social
security checks directly deposited into his personal bank account. Defendant
Higgins also boasted about the female, how even though she was jewish, he had
her placed in the Everett Christian Home, and then when she passed away,
defendant Higgins had her cremated, even though it was sacreligious to her
religion, because cremation only cost several hundred dollars and a proper funeral
and burial would have been several thousand of the woman's money which he
wanted to keep for himself.
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In the November 2003 election, defendant Higgins was elected District
Attorney of Bedford County. Shortly after taking office, the relationship between
plaintiff and defendant Higgins had deteriorated to the point where defendant
Higgins would utter profanities at plaintiff in court, but while court was not in
session. At the time when defendant Higgins took office, plaintiff was actively
representing the defendant in the matter of Commonwealth vs. Barnes, No. 535 for
the year 2003, in the Court of Common Pleas of Bedford County. Prior to
defendant Higgins assuming the duties of the Office of District Attorney, a
resolution of the Barnes case had been successfully negotiated with the former
District Attorney of Bedford County but not presented to the court. Defendant
Higgins refused to honor this agreement and a jury was selected and a jury trial
was held on March 9, 2004, one (1) month prior to the plaintiff's arrest by
defendant Hershey. During one of the recesses in the trial, defendant Higgins
made statements to the plaintiff that the Honorable Daniel Lee Howsare, President
Judge of the Court of Common Pleas of Bedford County and the judge presiding
over the Barnes jury trial, was engaged in illegal, inappropriate and ex parte
conduct with regard to the Barnes case; these accusations were made by defendant
Higgins plaintiff in the presence of the defendant, a Pennsylvania State Police
Trooper, a court clerk, the stenographer, as well as those in court to watch the trial.
Plaintiff, when court was in session and on the record once again, brought the
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charges and accusations of defendant Higgins to the attention of Judge Howsare.
Defendant Higgins initially denied making such statements to which Plaintiff stood
and pointed out those persons who were in court when defendant Higgins made
these disparaging accusations against Judge Howsare at which point defendant
Higgins relented and conceded that he had made these statements. Judge Howsare
thereafter correctly chastised defendant Higgins as to his unprofessional conduct in
court. 1
Defendant Higgins harbored a great deal of animosity towards plaintiff
because of this as well other other matters which the plaintiff was involved with as
a criminal defense attorney. Defendant Higgins had been caught previously
misleading the Court in an arson case where plaintiff represented the criminal
defendant. Defendant Higgins, on behalf of the Bedford County District
Attorney's Office and as an officer of the court, stated in open court to the
Honorable Daniel Lee Howsare, President Judge of the Court of Common Pleas,
that a police report prepared by a fire investigator for the Pennsylvania State Police
concluded that the fire at issue had been set by human hands and that the evidence
supported this. It was thereafter discovered that the police report regarding this
matter never concluded that the fire had been set by human hands and there was no
factual basis for defendant Higgins baseless representations to the court; defendant
1 The jury found Mr. Barnes guilty of the charged offenses, but the jury verdict and sentence were set aside and a
new trial Ordered because of defendant Higgins using illegal and inadmissible evidence to obtain the conviction.
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Higgins was once again openly chastised for his unprofessional behavior and once
again blamed plaintiff.
Defendant Higgins and defendant Hershey, according to statements
defendant Higgins made directly to plaintiff, are friends having a social
relationship which encompassed drinking beer together at defendant Higgins home
while watching football games together and sitting together in the hot tub at
defendant Hershey's home also drinking beer. Upon information and belief,
defendant Higgins and defendant Hershey each harbored a great deal of animosity
towards the plaintiff. Upon information and belief, defendant Higgins and
defendant Hershey conspired to remove plaintiff who they viewed as a thorn in
their side in the court system. Defendant Higgins was concerned that the personal
information which plaintiff had concerning defendant Higgins, and which plaintiff
learned of directly from defendant Higgins, would get out and defendant Higgins
wanted to put plaintiff in a position where his credibility was questioned should
plaintiff ever reveal defendant Higgins business dealings with the elderly as well
as other matters which plaintiff knew and which defendant Higgins wished to hide.
The Office of the Attorney General for the Commonwealth of Pennsylvania
assumed prosecution of the charges against the plaintiff as the District Attorney's
Office for Bedford County, headed by defendant Higgins, could not prosecute the
case because of conflicts. A preliminary hearing was held on July 19, 2004, and
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the charges against the plaintiff were bound over to the Bedford County Court of
Common Pleas. Prior to the trial, defendant Higgins actively attempted to testify
on behalf of the Commonwealth but was prohibited because his testimony was
questionable and suspect. On March 2, 2005, after trial by jury, the plaintiff was
found guilty of Driving after Imbibing, and defendant George scheduled
sentencing for April 22, 2005. On April 22, 2005, defendant George sentenced
plaintiff to incarceration of no less than ninety (90) days nor one (1) day less than
five (5) years to be served at the Bedford County Correctional Institution and work
release was permitted; the transcripts of the sentencing proceeding support
plaintiff's contention that work release was addressed at the time of sentencing.
Subsequent to the sentencing of the plaintiff, defendant Higgins, for his own
personal pleasure, misappropriated the resources of Bedford Borough, Bedford
County, and the Commonwealth of Pennsylvania to stalk and harass the plaintiff.
On August 5, 2005, defendant George entered an Order revoking plaintiff's
bail because Attorney Thomas Dickey of Altoona, PA, failed to file an appeal in
plaintiff's case as he was hired to do. Plaintiff did not become aware of defendant
George's August 5, 2005, Order until the late afternoon hours of August 8, 2005;
the August 5, 2005 Order required plaintiff to surrender himself to the Bedford
County Jail no latter then 6:00 o'clock p.m. on August 9, 2005. Defendant
Higgins, even though he had been conflicted out of plaintiff's case, obtained a copy
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of this August 5, 2005, Order, and tried to personally file it in the Clerk of Court's
Office for Bedford County; defendant Higgins also had troopers of the
Pennsylvania State Police try to hunt down the plaintiff on August 8, 2005 and
during the day of August 9, 2005, even though plaintiff had until 6:00 on August
9, 2005, to report to the jail. Defendant Higgins also contacted a reporter at the
Bedford Gazette to ensure that a photographer was waiting at the Bedford County
Jail to photograph the plaintiff when he complied with the August 5, 2005, court
order.
When plaintiff reported to the Bedford County Jail as Ordered on August 9,
2005, plaintiff was immediately transported to the Clinton County Correctional
Facility where he was housed in a maximum security federal block. When the
plaintiff reported to the Bedford County Jail on August 9, 2005, a decision had
already been made by defendants Higgins, Clark, Bowser, and the Bedford County
Prison Board, to house the plaintiff outside of Bedford County even though there
was no rational basis for doing so. Defendants Higgins, Clark, Bowser and the
Bedford County Prison Board had discussions the week prior to August 8, 2005,
about housing the plaintiff out of county; the statements given to the media by
defendant Clark that plaintiff was shipped out of county because his presence
when he was initially housed at the Bedford County Jail caused an uproar among
the inmates was patently false.
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Following the plaintiff surrendering himself to the Bedford County Jail on
August 9, 2005, Attorney Thomas Dickey filed a Petition seeking the return of the
plaintiff to the Bedford County Jail. Defendant George entered an Order providing
that "[t]he Defendant's Motion to Return the Defendant to the Bedford County
Prison is denied. The Court of Common Pleas lacks authority to direct a warden
of a county prison to confine the Defendant at a specific facility. See
Commonwealth ex rel. Black v. Superintendent, State Correctional Institution
Graterford, 439 A.2d 193, 194 (Pa.Super.1981)." This order also recited that
"[C]orrespondence presented to the Court and counsel from the Bedford County
Warden reflects rational security concerns at the facility and, thus, the Warden's
actions are not an abuse of discretion." Subsequent to the entry of this Order,
defendant Clark agreed to have plaintiff returned to the Bedford County Jail if
plaintiff signed a waiver to hold the Bedford County jail and its officials harmless
should he be injured. Once defendant Clark became aware that plaintiff had
agreed to this and that plaintiff would be able to participate in the work release
program, defendant Clark then refused saying that he had changed his mind.
From August 9, 2005, when plaintiff arrived at the Bedford County Jail to
serve a sentence on a D.U.I. offense, the plaintiff was housed at four (4) different
correctional facilities over the next one hundred and five (105) days. Any
possibility of the plaintiff participating in work release was eliminated by
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incarcerating the plaintiff at the Clinton County Correctional Facility which is 125
miles from the office of the plaintiff.
Plaintiff's wife, with the aid of Attorney Dickey contacted Cambria County
Prison which agreed to house the plaintiff; the Cambria County Prison was in close
proximity to the office of plaintiff so plaintiff could work. The move to Cambria
County, and the purpose for the move, plaintiff's work, was done with full
knowledge and awareness of defendant Clark and the Bedford County Prison
Board. Plaintiff paid Cambria County for the housing thereby relieving Bedford
County of the responsibility. Plaintiff was transported from Clinton County to the
Cambria County Jail, at plaintiff's expense and with the agreement of defendant
Clark, on September 1, 2005; it is noted that defendant Clark accepted money from
plaintiff's wife to arrange the transportation. While in the Cambria County Prison,
Attorney Dickey filed the standard work release petitions. Attorney Dickey then
succeeded on plaintiff's behalf in procuring an Order from the Honorable Judge
Long of the Cambria County Court of Common Pleas permitting the plaintiff to
participate in the Cambria County work release program, and further to be under
house arrest which is a standard part of the work release program in Cambria
County for D.U.I offenders. All costs were pre-paid by the plaintiff and at no time
did the plaintiff keep any information from defendants Clark, Bowser or George.
Defendant Higgins, in collusion and conspiracy with defendants Clark, George,
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Bowser and the Bedford County Prison Board, had the plaintiff removed from the
Cambria County Prison on September 13, 2005, and then housed in the Bedford
County Jail, which defendant George previously claimed he did not have the
authority to do and which defendant Clark said was not feasible because of safety
concerns for the plaintiff and that plaintiff's presence caused an uproar among the
other inmates. Defendant Clark's position is undermined by the fact that after
plaintiff was snatched from Cambria County, plaintiff was left with many Bedford
inmates, even for periods without any supervision of any correctional officers.
While at the Bedford County Jail, defendant Clark spoke directly with plaintiff at
which point defendant Clark told plaintiff that he was going to be kept in solitary
confinement indefinitely and when asked about the multiple moves, defendant
Clark said that he did not agree to any work release or house arrest and that if
plaintiff complained about it, that defendant Clark would ship him to a State
Correctional Facility.
Defendant George during this time was engaging in direct communication
with defendant Higgins, defendant Clark and defendant Bowser regarding moving
plaintiff from Cambria County so plaintiff would effectively be denied
participation in the work release program. Defendant Higgins thereafter gave
statements to the media that he had been in contact with defendant George and that
he was responsible for moving the plaintiff around. The the plaintiff was then
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moved again from the Bedford County jail to the Adams County Adult
Correctional Complex, located in Gettysburg, Adams County, Pennsylvania, the
county where defendant George is a judge and serves as a member of the Adams
County Prison Board. Defendant George has been a member of the Adams County
Prison Board longer than he has been a judge and had previous dealings with
defendant Clark who had been an officer at the Adams County Adult Correctional
Complex. Defendant George moved the plaintiff without conducting any hearing
or issuing any order for the sole purpose of retaliating against the plaintiff because
he made lawful motions before the Cambria County Courts, and because he
defended himself in court. Defendant Higgins fully participated in the moving of
plaintiff to deny him work release even though he was to have no involvement in
plaintiff's case. Upon information and belief, the Bedford County Prison Board
fully supported and ratified the multiple moves of plaintiff which is evidenced by
the fact that aside from the plaintiff's stay in Cambria County, which plaintiff
himself paid, Bedford County was responsible for the cost of housing plaintiff at
these other facilities. All of the communication between defendant Higgins, Clark,
Bowser, George, and the Bedford County Prison Board was done ex parte, without
any hearing being held, or Order being issued to hide the actions of these
defendants.
While incarcerated at the Adams County Adult Correctional Complex, under
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the supervision of Paul Wypijewski, the deputy warden at this facility, plaintiff
was placed in solitary confinement. Upon information and belief, defendants
Higgins and Clark gave instructions to the Adams County Adult Correctional
Complex that even though plaintiff had neither violated any prison rule nor
exhibited any improper behavior, that plaintiff was to be kept in solitary
confinement, to have no contact with anyone, and be permitted out of his cell for
one (1) fifteen minute telephone call a day, generally around 6:00 o'clock a.m., and
one (1) fifteen minute shower a day. Plaintiff was forced to sign a hold harmless
waiver to escape from solitary confinement. Furthermore, while under the
supervision of defendant Wypijewski, was prohibited contact with his attorney
who had traveled from Bedford, Pa., to meet with him, was placed in an attorney
conference room told that plaintiff would be there momentarily, and then she was,
under threat of force, told to leave and that she was not allowed to see the plaintiff.
Plaintiff had submitted multiple Inmate Request Slips seeking redress for improper
action taken while at the Adams County Adult Correctional Complex. Plaintiff
had even specifically requested an Inmate Grievance Form because plaintiff's
concerns as set forth in the Inmate Request Forms were not addressed; plaintiff
received a written answer which did not include the requested Inmate Grievance
Form but simply told plaintiff that grievances must be dealt with informally. This
was not surprising given that plaintiff had received a memo dated November 17,
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2005, from the Adams County Prison stating that "[a]ny mail received which poses
a threat to the security of the institution or is deemed inappropriate by the Warden
or designee will not be distributed (e.g. , pornography, information on topics such
as drugs, weapons, prison disruptions, etc.)." This memo identified that an
envelope from Hannah Nicodemus was being returned because it contained
unauthorized artwork; Hannah Nicodemus, three (3) years old at the time, had sent
her father, the plaintiff, a birthday card, which must have been deemed a security
threat or inappropriate as set forth above.
Defendants George, Higgins, Clark, Bowser, and the Bedford County Prison
Board's unlawful retaliation effectively denied plaintiff any opportunity to
participate in any work-release program because of the distance from Adams
County Prison to Bedford County, all of which was known to defendants George,
Higgins, Clark, Bowser, and the Bedford County Prison Board and was
intentionally planned in order to hatefully punish and harm the plaintiff. The
purpose of this unlawful plan and actions was to defeat plaintiff's lawful desire, as
per his original sentencing order, to facilitate a work release program so that he
could support his family, represent his client's, and dutifully serve his sentence.
Defendants George, Higgins, Clark, Bowser, and the Bedford County Prison
Board, conspired to take the plaintiff to Adams County prison as a way to ensure
that he would do "hard time" and not be able to benefit from defendant George's
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own order which permitted work-release, and arguably house arrest. Defendant
Higgins and defendant Clark were so proud of their actions as well as those of
defendant George, that they gave statements to the media how this was done fully
with defendant George.
Plaintiff was incarcerated for fifteen (15) days beyond his lawful sentence
by defendants George and Bowser because defendants George and Bowser
considered plaintiff's lawful motion before the Cambria County Court to be a
"trick." Plaintiff has never engaged in any "tricks" and defendants George and
Bowser are fully aware of that fact. Defendant Bowser said directly to plaintiff's
wife that it was questionable whether defendant George was going to let plaintiff
out because of the "trick" plaintiff pulled in Cambria County. Defendant Bowser
purposefully delayed in the processing of the paperwork which would have
released plaintiff at the expiration of the ninety (90) day sentence. On November
4, 2005, defendant Bowser arrived at the Adams County Adult Correctional
Complex to have plaintiff sign the release papers. Defendant Bowser stated to
plaintiff that he was going right back to the office and have the paperwork faxed to
defendant George that day so plaintiff would get out at the end of the ninety (90)
days; defendant Bowser did not keep his word. It is standard practice and policy
that persons incarcerated in Bedford County for DUI offenses are released at the
expiration of the minimum sentence. It is standard practice and policy that persons
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incarcerated in Bedford County for DUI offenses, if they have employment,
participate in the work release program. It was unheard of in Bedford County until
plaintiff, that an inmate serving a DUI sentence would be moved among four (4)
prisons.
Since the plaintiff's release, defendant Higgins has used and abused his
power as a state official to harm the plaintiff in retaliation for the plaintiff speaking
out on matters of public concern as a citizen because plaintiff constructively
criticized defendant Higgins for breaking the law and fraudulently abusing elderly
citizens and conducting himself improperly in front of the Bedford County Courts.
Plaintiff, as a result of the actions of defendants Higgins, Clark, Bowser,
Wypijewski, and the Bedford County Prison Board as well as the other named
defendants, initiated this action by filing a complaint in the United States District
Court for the Western District. Defendants Higgins, Clark, Bowser, Wypijewski,
and the Bedford County Prison Board then filed a Motion to Dismiss as well as a
Memorandum of Law in Support of the Motion to Dismiss. It is noted that
defendant's Motion to Dismiss raises three (3) issues, namely Lack of Jurisdiction,
Failure to State Claims Upon Which Relief Can Be Granted, and Failure to
Implicate a Federally Protected Right; the defendant's Memorandum of Law lists
eleven (11) issues. Plaintiff will address those issues raised in the Motion to
Dismiss.
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II.) BACKGROUND
Defendants Higgins, Clark, Bowser, Wypijewski, and the Bedford County
Prison Board have filed a collective motion to dismiss, with a brief in support, and
plaintiff herein files his brief in opposition.
In their brief, these defendants have identified eleven (11) issues. A number
of the issues are related and a few appear to be based upon interpretations of the
complaint which plaintiff simply does not share or which he believes these
defendants may have misinterpreted. For example, plaintiff nowhere intends to
assert punitive damages either against any public official in his or her official
capacity nor against any public entity (Monell); paragraph four (4) of plaintiff's
complaint states this. Plaintiff incidentally nowhere seeks any form of prospective
relief. Judicial notice can be taken that punitive damages are never appropriate
against officials in their official capacity or against municipal entities by virtue of
the eleventh (11th) Amendment. Plaintiff has nowhere sued any defendant in this
action in their official capacity; it appears that defendants may be erroneously
interpreting the complaint to the contrary. Defendants cannot have their cake and
eat it too. The plaintiff's complaint is consistent with tens of thousands of similar
complaint formats filed in the United States each year, i.e., the defendants are
aware that these defendants are sued in their individual capacity. Seeking no
prospective relief, plaintiff's complaint is brought against the defendants in their
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individual capacities (or, in the case of Bedford County, as a Monell claim based
upon custom, practices, and usages in Bedford County).
The rest of the defendants issues raise challenges to the sufficiency of the
plaintiff's claims with the exception of issue number nine (9) which touches on
qualified immunity.
III.) ISSUES
A. Has plaintiff made out a 1st Amendment claim?
SUGGESTED ANSWER: Yes.
B. Has plaintiff made out due process claims?
SUGGESTED ANSWER: Yes.
C. Did plaintiff make out 8th Amendment claims?
SUGGESTED ANSWER: Yes.
D. Has plaintiff made out a 4th Amendment claim?
SUGGESTED ANSWER: Yes.
E. Has plaintiff alleged a Monell claim?
SUGGESTED ANSWER: Yes.
F. Should all the defendants be denied qualified immunity?
SUGGESTED ANSWER: Yes.
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III.) STANDARD OF REVIEW
In deciding a motion to dismiss, the factual allegations of the complaint
must be accepted as true. Graves v. Lowert, 117 F.3d 723, 726 (3d Cir.1997). In
particular, the court should look to whether sufficient facts are pleaded to
determine that the complaint is not frivolous and to provide defendants with
adequate notice to frame an answer. Colburn v. Upper Darby Twp., 838 F.2d 663,
666 (3d Cir.1988).A court should dismiss a complaint only if it is clear that no
relief could be granted under any set of facts that could be proved consistent with
the allegations. Graves at 726. Thus, in order to prevail, a moving party must
show beyond doubt that the plaintiff can prove no set of facts in support of his
claim that would entitle him to relief. Conley v. Gibson, 2 L.Ed.2d 80 (U.S.1957).
IV.) ARGUMENT
The defendants in paragraph five (5) of the Motion to Dismiss filed on
behalf of defendants Higgins, Clark, Bowser, Wypijewski, and the Bedford County
Prison Board claims that "[p]laintiff has not asserted any jurisdictional basis for
pendent jurisdiction over the alleged violation of Pennsylvania Tort Law."
Although defendants contend that the failure to assert any basis for pendant
jurisdiction that dismissal of any claims raised against the defendants under
Pennsylvania Tort Law is warranted. Defendants have failed to consider that the
1990 Adoption of §1367 codifies the caselaw doctrines of pendant jurisdiction and
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ancillary jurisdiction under the name of supplemental jurisdiction. 2
Title 28 U.S.C. §1367(a), provides in pertinent part, that "in any civil action
of which the district courts have original jurisdiction, the district courts shall have
supplemental jurisdiction over all other claims that are so related to claims in the
action within such original jurisdiction that they form part of the same case or
controversy under Article III of the United States Constitution. Such supplemental
jurisdiction shall include claims that involve the joinder or intervention of
additional parties." Plaintiff, by pleading violations of Pennsylvania Tort Law by
the defendants, as well as requesting relief for the defendant's violations of
plaintiff's rights under Pennsylvania Tort Law, automatically invokes this Courts
jurisdiction.
Plaintiff feels that defendants are not raising a meaningful issue regarding
lack of jurisdiction, however in fairness to the defendant's who are obviously
familiar with the terminology of 28 U.S.C. §1367(c), plaintiff will be pleased to
2 "The doctrine of "pendent" jurisdiction, which had perhaps its best known and most generous interpretation in United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130 (1966), recognizes that in our federal system a plaintiff who has a federal claim against a defendant will often find that the same wrongful conduct that grounded the federal claim has given rise to a claim under state law as well. They may be separate claims, or they may merely be different "counts" or "grounds" or "theories" in support of what is essentially a single claim. Each can be sued on in its own court system, of course, but that creates duplication and waste. If jurisdiction of the federal claim has not been conferred exclusively on the federal courts, both claims can be brought in the state court. More to the point here is that the doctrine of pendent jurisdiction permits the plaintiff to bring both claims in the federal court. The "pendent" jurisdiction doctrine permits a federal court to entertain a state claim of which it would otherwise lack subject matter jurisdiction when it is joined with a related federal claim, the two arising out of the same event or connected series of events. Under pendent jurisdiction, the federal claim acts as the equivalent of a jurisdictional crutch. In the constitutional sense, the relatedness of the two claims makes both of them part of the same constitutional "case". Pendent jurisdiction is mainly associated with the federal question jurisdiction, where the existence of a federal claim supports jurisdiction of a "pendent" state claim." Commentary on 1988 Revision by David D. Siegel
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submit an Amended Complaint in the near future.
A. First Amendment
Plaintiff has alleged in the complaint that he filed actions before various
courts, including courts in Cambria and Bedford County and before the defendant
George for which he has alleged he suffered retaliation. Plaintiff has further
alleged that he engaged in numerous actions, by and through his attorney and his
wife, to seek effectuation of the work-release provisions of his sentencing orders
(contrary to the misinformation which opposing counsel has obviously been
provided by her clients the original bench order dictated by Judge George
expressly contained work release provisions). See complaint paragraphs 1, 8
(subsections a,f,g,h,i,k, and l). These allegations, along with the allegations made
in paragraphs 9-12, 14, 19, and 21 allege retaliation for plaintiff's exercise of his
First Amendment right to undertake protected actions for redress which is clearly
defined in the aforementioned paragraphs.
The plaintiff will make no pretense that all of the allegations made in his
original complaint, and in the amended complaint which will be filed shortly, that
the plethora of unlawful actions undertaken by these defendants compose gross
violations of his First Amendment rights. First and foremost, this plaintiff asserts
a federally guaranteed right to petition for a redress of grievances through the
courts and to take other related means which need not rise to a constitutional level
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to make out a First Amendment violation. See Bristow v. Clevenger, 29
Fed.Appx. 813 (C.A.3(Pa.)). The Court in Bristow stated that "retaliation for
exercising a constitutionally protected right is, in itself, a violation of
constitutional rights; the retaliation need not be physical in nature, or rise to the
level of a substantive due process violation." Id. at 815.
B. Due Process Claims
See complaint paragraphs 17 and 22. The misconduct of these defendants
"shocks the conscience" to an egregious and extreme degree. See County of
Sacramento v. Lewis, 118 S. Ct. 1708 (1998). It has been long held that in order
to establish a civil conspiracy under § 1983, that a plaintiff must show an
agreement or a meeting of the minds to violate or deprive the plaintiff of his
constitutional rights. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158 (1970).
"The Court must accept as true all of the allegations in the pleadings and must give
the plaintiff the benefit of every favorable inference that can be drawn from those
allegations. " Panayotides v. Rabenold , 35 F.Supp. 2d 411, 419 (E.D.Pa.,1999),
citing Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir.1991).
It is well settled law that a complaint is properly dismissed only if it appears
certain that the plaintiff cannot prove any set of facts in support of its claim which
would entitle it to relief. Panayotides at 419, citing Ransom v. Terrazzo, 848 F.2d
398, 401 (3d Cir.1988). The Complaint filed on behalf of the plaintiff in this
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matter sets forth sufficient facts establishing the defendants joined forces to
deprive the plaintiff of the benefit of a work release program which had already
been granted. The actions of the defendants were done behind closed doors to try
and hide their illicit and improper actions, motivated solely by illicit and improper
reasons.
C. Eighth Amendment Claims.
See complaint paragraphs 1, 8 (subsections j and l), 13, 14, and 16. Plaintiff
has an 8th Amendment right not to be lodged unlawfully in a prison by state
officials who lack jurisdiction or authority to keep him there against his will as
they did in this case. Such misconduct constitutes cruel and unusual punishment.
Defendant contend that plaintiff's 8th Amendment claim is barred by 42 U.S.C.
§1997(e)(a), which provides limitations on some actions brought regarding prison
conditions until administrative remedies are exhausted. Although this section is
not applicable to plaintiff's claims, it is nonetheless moot, plaintiff had exhausted
the administrative remedies available to him.
D. 4th Amendment Claim.
See complaint paragraphs 13 and 15. Plaintiff has a 4th Amendment right
not to be unlawfully seized out of retaliation for exercising his First Amendment
rights and inter alia, not to be taken into custody and moved about in violation of
an existing court order for unlawful reasons.
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E. Monell Claim.
The Fourteenth Amendment protects individuals from "state deprivations of
life, liberty, or property without due process of law." Unger v. National Residents
Matching Program, 928 F.2d 1392, 1395 (3d Cir.1991). Procedural due process
analysis involves a two-step process. First, the court must determine whether
plaintiff's asserted interest is "encompassed within the fourteenth amendment's
protection of life, liberty or property." Id. Second, if protected interests are
implicated, [the court] must decide what procedures constitute 'due process of
law'." Id.
To Prevail on a substantive due process claim, a plaintiff must demonstrate
that an arbitrary and capricious act deprived him of a protected property interest.
Taylor Investment, Ltd. v. Upper Darby Township, 983 F.2d 1285, 1292 (3d
Cir.1993). Plaintiff asserts that his substantive due process rights were violated
since his termination from the Pennsylvania State Police caused harm to his
reputation that, when compounded with his termination from employment,
constituted a due process violation of his right to liberty.
Defamation of a person's reputation (or infringement of a party's liberty
interest in his reputation) is actionable pursuant to 42 U.S.C. §1983 only if "it
occurs in the course of or is accompanied by a change or extinguishment of a right
or status guaranteed by state law or the Constitution." Clark v. Township of Falls,
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890 F.2d 611, 619 (3d Cir.1989). Plaintiff claims that his First Amendment rights
were violated by the defendants as a result of the retaliation by the defendants
sufficiently establishes a Monell Claim, both substantively and procedurally.
F. Qualified Immunity
"A public official is entitled to qualified immunity from monetary liability
unless a 'reasonable public official (in the position of defendant George) would
know that his or her specific conduct violated clearly established rights." Johnson
v. Horn, 150 F.3d 276, 286 (3d Cir.1998), citing Grant v. City of Pittsburgh, 98
F.3d at 121 (3d Cir.1996). Defendants had private communications with one
another regarding plaintiff, and then made decisions and initiated actions which
deprived plaintiff of any possible opportunity to maintain his livelihood and
provide for his family. Defendants engaged in this behavior behind closed doors
to conceal his actions and attempt to hide his involvement. A reasonable public
official in the position of the defendants as they did, would without question, know
that his or her conduct violated clearly established rights.
Not only did the actions of defendants violate clearly established rights, but
the actions of the defendants may constitute criminal behavior. Title 18 Pa. C.S.A.
§5301, Official Oppression, provides that "[a] person acting or purporting to act in
an official capacity or taking advantage of such actual or purported capacity
commits a misdemeanor of the second degree if, knowing that his conduct is
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illegal, he: (1) subjects another to arrest, detention, search, seizure, mistreatment,
dispossession, assessment, lien or other infringement or personal or property
rights; or (2) denies or impedes another in the exercise or enjoyment of any right,
privilege, power or immunity." Defendants were fully aware that they were acting
illegally when they subjected plaintiff to mistreatment and denied him the exercise
or enjoyment of the rights and privileges to which plaintiff was entitled.
Furthermore, the defendant Bedford County Prison Board is believed to have
established a policy, custom and practice under the circumstances of this case
which were intentionally aimed at depriving plaintiff of his 1st, 4th, 8th, and 14th
Amendment rights as were the individual human defendants.
V.) CONCLUSION
WHEREFORE, it is respectfully requested that this Court deny the Motion
to Dismiss filed on behalf of the defendants. Furthermore, plaintiff will shortly be
filing an Amended Complaint to accommodate address the issues raised by the
defendants.
Respectfully submitted,
s/Don Bailey, Esquire Don Bailey, Esquire Attorney ID #23786 4311 N. Sixth St. Harrisburg, PA 17110 (717)221-9500
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CERTIFICATE OF SERVICE
I, Don Bailey, Esquire hereby certify that on this 18th day of August, 2006, I
caused the foregoing PLAINTIFF’S BRIEF IN OPPOSITION TO
DEFENDANTS MOTION TO DISMISS THE COMPLAINT upon defendant’s
counsel via electronic means addressed as follows:
DAVID DONALDSON, ESQUIRE 1515 MARKET STREET, SUITE 1414 PHILADELPHIA, PA 19102 MARY LOU MAIERHOFER, ESQUIRE MEYER DARRAGH, BUCKLER BEBENEK, & ECK, P.L.L.C. 120 LAKEMONT PARK BOULEVARD ALTOONA, PA 16602 Respectfully submitted,
s/Don Bailey Esquire Don Bailey, Esquire Attorney ID 23786 4311 N. Sixth Street
Harrisburg, PA 17110
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