Sands v. McCormick

• Decision Date: 18 September 2007
• Docket Number: No. 06-3281.,06-3281.
• Citation: 502 F.3d 263
• Parties: Cynthia SANDS, Appellant v. Robert McCORMICK, Sergeant, Berwick Police Department; Gary E. Norton, District Attorney of Columbia County, Pennsylvania.
• Court: U.S. Court of Appeals — Third Circuit

502 F.3d 263

Cynthia SANDS, Appellant v. Robert McCORMICK, Sergeant, Berwick Police Department; Gary E. Norton, District Attorney of Columbia County, Pennsylvania.

No. 06-3281.

United States Court of Appeals, Third Circuit.

Argued July 10, 2007.

Filed: September 18, 2007.

David B. Dowling, Esquire, (Argued), James J. Jarecki, Esquire, Rhoads & Sinon, LLP, Harrisburg, PA, Attorneys for Appellant, Cynthia Sands.

Chester C. Corse, Jr., Attorney, (Argued), Pottsville, PA, Attorney for Appellee, Gary E. Norton.

David J. Macmain, Esquire, Timothy J. Kepner, Esquire, Montgomery, McCracken, Walker & Rhoads, LLP, Philadelphia, PA, Attorneys for Appellee, Robert McCormick.

Before: SLOVITER, WEIS and ROTH, Circuit Judges.

OPINION

WEIS, Circuit Judge.

In this appeal we conclude that a district attorney's use of the extradition process rather than accepting an out-of-state accused's offer to return for a preliminary hearing when scheduled did not establish a constitutional violation. We also decide that a police officer's affidavit of probable cause was not deficient because the statute of limitations had expired before a criminal complaint was filed. Moreover, we conclude that portions of a transcript of a preliminary hearing may be considered in connection with the defendants' motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). We are in agreement with the District Court that judgment should be entered in favor of the police officer and district attorney in claims brought under 42 U.S.C. § 1983 and state tort law.

In December of 2003, a jury awarded substantial damages to Carolyn Sands following a trial that concerned a contractual dispute over the 1997 sale of a business to Sherry Wagner and others. One of the issues in that case was whether Sands had improperly withdrawn funds from a company bank account after the sale. In March of 2004, a new trial was granted. The trial court wrote that "Sands illegally withdrew at least $10,000 before the closing from the bank account of the corporation, and after the closing illegally appropriated the entire bank account for her own use."

Following the grant of a new trial, Wagner contacted defendant Sergeant Robert McCormick of the Berwick Police Department in Columbia County, Pennsylvania. She demanded that he file criminal charges against Sands for forgery and theft. On April 26, 2004, McCormick filed a criminal complaint against Sands before the state district magistrate¹ charging her with 14 counts of forgery and 16 counts of theft by deception. He included in the complaint an affidavit of probable cause that described specific information he received from Wagner, including some bank records that he had examined, and also directly quoted the trial court's opinion that granted the new trial.

On May 5, 2004, the magistrate issued a warrant for Sands' arrest listing an address of 5499 Freeport Lane, Naples, Florida. On June 29, 2004, the warrant was reissued with a notation "declared a fugitive." On July 9, 2004, Sands was arrested at her home in Florida and taken to the county jail where she was detained until released on bail on July 10, 2004.

Sands alleges that upon her release she telephoned defendant Gary E. Norton, District Attorney of Columbia County, and told him that once a hearing date was set she would voluntarily return to Pennsylvania when requested. It appears that on August 3, 2004, in a letter to the magistrate, Attorney Kim Hill advised that he represented Sands and asked that he be notified of the date of the preliminary hearing.

On October 18, 2004, District Attorney Norton signed a petition for a Governor's Warrant requesting Sands' extradition that listed an address at 1855 Ivory Cane Point, Naples, Florida. The application stated that Sands was a fugitive from Pennsylvania and that any delay in her prosecution occurred because the "[p]ersons whereabout [sic] was unknown."

On November 10, 2004, she was again arrested at her Florida home and remained in a county jail there until November 24 when she was transported to Pennsylvania in handcuffs and shackles. She was released on bail in Pennsylvania on her arrival there. Sands alleges that District Attorney Norton knew that she had retained attorneys in Pennsylvania and Florida before he applied for the Governor's Warrant and that defendants did not inform her of the date of her hearing before the second arrest.

A preliminary hearing was held before the magistrate on December 6, 2004. After hearing testimony from Wagner, the magistrate ordered Sands to answer the charges in the Court of Common Pleas of Columbia County. Sands' counsel then asked the court to quash the information because the relevant statutes of limitations had expired. On March 14, 2005, the Court of Common Pleas granted the motion and dismissed the charges.

Sands then filed this civil rights action in the United States District Court for the Middle District of Pennsylvania claiming damages under 42 U.S.C. § 1983 for false arrest and false imprisonment against Sergeant McCormick and for false arrest against District Attorney Norton. She also asserted state law claims of malicious prosecution, abuse of civil process,² and intentional infliction of emotional distress against both defendants.

Sands based the claims against Sergeant McCormick primarily on the allegations that he filed the Complaint and Affidavit of Probable Cause knowing that the statute of limitations had expired on the charges and that they were based on insufficient facts. She also alleged that Sergeant McCormick requested the Governor's Warrant knowing that Sands was not a fugitive and refused to take steps to have it rescinded.

The District Court dismissed the § 1983 claims for false arrest and false imprisonment and the state law claim for malicious prosecution against Sergeant McCormick because he had probable cause to file the criminal complaint. The District Court found that Sergeant McCormick properly relied on the information he received from Wagner, including the bank records and the comments in the order granting a new trial in the contractual dispute. The District Court observed that the running of the limitations period was not relevant to the existence of probable cause and did not become an issue until raised as a defense in Sands' motion to dismiss the charges in the Court of Common Pleas.

The District Court also dismissed the state law claims against Sergeant McCormick for malicious prosecution, abuse of process, and intentional infliction of emotional distress on the ground that he was entitled to immunity under the Pennsylvania Political Subdivision Tort Claims Act ("Pa. Tort Claims Act"), 42 Pa. Cons.Stat. § 8541 et seq., since he acted in his official capacity and in good faith.

Sands' assertions against the district attorney were similar to those against Sergeant McCormick, but were not identical. Sands based her claims against the district attorney primarily on allegations that in his administrative capacity he authorized Sands' arrest, then signed the criminal information knowing that the statute of limitations had expired and that the charges lacked probable cause. She also alleged that he requested and refused to rescind the Governor's Warrant knowing that Sands was not a fugitive.

The District Court rejected the § 1983 claim for false arrest against the district attorney because he was entitled to absolute prosecutorial immunity for his actions. The District Court declined to accept Sands' characterization of Norton's activities as administrative, concluding that they were intimately connected with the judicial phase of the prosecution.

As to the state tort claims, the District Court held that because Norton acted in his official capacity as a prosecutor and acted in good faith based on probable cause, he was immune under the Pa. Tort Claims Act. Moreover, the Court held that the malicious prosecution claim lacked merit because the district attorney did not initiate the process, the abuse of process claim failed because Sands did not properly allege a perversion of process, and the intentional infliction of emotional distress claim was invalid because the district attorney's conduct was not extreme and outrageous. Therefore, the state law claims against the district attorney were dismissed.

On appeal, Sands raises three principal arguments:

1. Sergeant McCormick did not have probable cause to arrest Sands because he was aware that the statute of limitations had expired.

2. The district attorney's failure to timely schedule a hearing and his false statements in the application for the Governor's Warrant despite Sands' offer to return to Pennsylvania once he advised her of the date of the hearing were administrative actions not protected by absolute immunity.

3. The District Court improperly relied on documents outside the complaint and its exhibits in ruling on the Federal Rule of Civil Procedure 12(b)(6) motion to dismiss.

A.

This Court has jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo a district court's grant of a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Vallies v. Sky Bank, 432 F.3d 493, 494 (3d Cir. 2006). "In evaluating the propriety of the dismissal, we accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n. 7 (3d Cir. 2002). Nonetheless, "a court need not credit a plaintiff's `bald assertions' or `legal conclusions' when deciding a motion to dismiss." Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir.1997) (citing In re: Burlington Coat Factory Securities Litigation, 114 F.3d 1410, 1429-30 (3d Cir.1997)).

B.

We first address Sands' contention that the District Court erred in referring to the following...