Smierciak v. City of Pittsburgh Police Dept

• Decision Date: 26 December 2018
• Docket Number: 2:18-CV-00734-MJH
• Court: U.S. District Court — Western District of Pennsylvania
• Parties: JOHN SMIERCIAK, Plaintiff, v. CITY OF PITTSBURGH POLICE DEPT., OFFICER MICHAEL ANTONACE, JR, A.D.A. THOMAS MALONEY, A.D.A. JULIE JONES, CARL A. PARISE, ALLEGHENY COUNTY JAIL, OFFICER CHRISTOPHER MODESSO, Defendants

JOHN SMIERCIAK, Plaintiff,
v.
CITY OF PITTSBURGH POLICE DEPT., OFFICER MICHAEL ANTONACE, JR,
A.D.A. THOMAS MALONEY, A.D.A. JULIE JONES, CARL A. PARISE,
ALLEGHENY COUNTY JAIL, OFFICER CHRISTOPHER MODESSO, Defendants

2:18-CV-00734-MJH

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA PITTSBURGH

December 26, 2018

OPINION AND ORDER

Plaintiff, John Smierciak ("Mr. Smierciak"), pro se, brings the within action, ostensibly for violations of his civil rights stemming from his arrest on September 26, 2015, and his subsequent incarceration, prosecution, and conviction.¹ While the Complaint contains neither numbered paragraphs nor enumerated claims, the Court discerns that Mr. Smierciak has alleged claims for

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"wrongful incarceration" and "false arrest" by Defendants, City of Pittsburgh Police Department ("Pittsburgh Police"), Officer Michael Antonace, Jr., and Officer Christopher Modesso; malicious prosecution by Defendants, Assistant District Attorney Thomas Maloney ("Maloney") and Assistant District Attorney Julie Jones ("Jones"); "malicious ineffective counsel" by Defendant, Carl Parise ("Parise"); and violations of "Civil and Privacy Rights" by Defendant, Allegheny County Jail. Mr. Smierciak originally filed a Complaint in the Court of Common Pleas of Allegheny County on September 7, 2016. (ECF No. 1-1). The same was served upon Defendants, Jones and Maloney, on April 2, 2018; Defendant, City of Pittsburgh Police Department, on April 3, 2018; Defendant, Parise, on April 11, 2018; Defendant, Modesso, on April 17, 2018; and Defendant, Antonace, on April 30, 2018. (ECF No. 1-2).² The case was removed on May 25, 2018. (ECF. No. 1)

Pending before the Court are Defendants, City of Pittsburgh, Michael Antonace and Christopher Modesso's, Motion to Dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6), (ECF No. 2); Defendants, Maloney and Jones's, Motion to Dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(4), (5), and (6), (ECF No. 9); and Defendant, Parise's, Motion to Dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 12). And while Defendant, Allegheny County Jail, has not been served, the Court will review the sufficiency of service. For the reasons stated below, the Motions to Dismiss are granted.

I. BACKGROUND

For purposes of clarity, the Court will begin with a brief summation of its review of the underlying criminal matter, which contains key determinative facts for the disposition of

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Defendants' motions.³ On September 26, 2015, Pittsburgh Police arrested Mr. Smierciak and charged with him with one count of Criminal Trespass, 18 Pa. C.S. § 3503(a)(1)(i); one count of Stalking, 18 Pa.C.S. § 2709.1(a)(1); one count of Simple Assault, 18 Pa.C.S. § 2701(a)(3); and one count of Harrassment, 18 Pa.C.S. § 2709(a)(4). (ECF No. 12-2). On November 10, 2015, following a preliminary hearing, both the Simple Assault and Harassment charges were held for court, while the charges of Criminal Trespass and Stalking were dismissed. Id. The Commonwealth later added the charge of Criminal Attempt, 18 Pa.C.S. § 901(a). Id.

On May 5, 2016, Mr. Smierciak proceeded to a non-jury trial before the Honorable Beth Lazzara of the Allegheny County Court of Common Pleas. Id. At that trial, Mr. Smierciak was represented by Attorney Carl Parise. Id. Mr. Smierciak was found guilty of Criminal Attempt and Harassment and not guilty of Simple Assault. Id. On May 9, 2016, Attorney Parise withdrew as counsel. Id. Mr. Smierciak was thereafter represented by a public defender. Between his arrest and trial, Mr. Smierciak was incarcerated in the Allegheny County Jail for seven months. (Compl. p. 6). Following the guilty verdicts, he was sentenced to five (5) years' probation. (ECF No. 12-2). On September 18, 2017, the Pennsylvania Superior Court affirmed

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his conviction, and on February 27, 2018, the Pennsylvania Supreme Court denied his petition for allowance of appeal. Id.

Mr. Smierciak's allegations in his Complaint seem to set forth the following factual assertions. On September 26, 2015, Officer Michael Antonace, Jr. arrested Mr. Smierciak and transported him to the Allegheny County Jail. (Compl. p. 1). Mr. Smierciak avers that his arrest was based upon "hearsay from one party" and the officer's "opinion, not facts." Id. Officer Antonace allegedly falsified information on the Police Complaint OTN #G723403-2. Id. Further, eleven officers of the Pittsburgh Police Department allegedly did not read his Miranda Rights during the "entire ordeal." (Compl. p. 2). Mr. Smierciak denies committing a crime, and he avers that none of the witnesses or officers listed in the Police Complaint testified at either the preliminary hearing or trial. Id. Two witnesses were allegedly involved in the altercation involving Mr. Smierciak. Mr. Smierciak alleges that Officer Antonace believed the witnesses' stories without "hearing [Mr. Smerciak's] side of the story." Id. While on route to the Allegheny County Jail, Officer Antonace did not tell Mr. Smierciak what crime that he had committed. Id. According to Mr. Smierciak, Officer Antonace failed to investigate the matter. Id. Further, Officer Antonace filed the police complaint four hours after the altercation and "made up charges without all the facts." (Compl. p. 3).

With regard to Mr. Smierciaks' prosecution, Assistant District Attorneys Maloney and Jones allegedly failed to prove the charges brought by Officer Antonace. Id. Maloney and Jones did not produce witnesses or a police officer to corroborate the charges. Id. Officer Antonace also did not testify to explain why he arrested Mr, Smierciak. Id. Further, it is alleged that the Police Complaint was falsified to make "Officer look good on a paper." (Compl. p. 4).

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With regard to his criminal defense, Mr. Smierciak avers that his attorney, Carl Parise, did not represent him to prove his innocence, and that Parise refused to follow Mr. Smierciak's instructions. (Compl. p. 5). Attorney Parise thereafter withdrew as counsel, and Mr. Smierciak proceeded with his criminal defense, pro se. He was thereafter convicted during the non-jury trial. Id.

Mr. Smierciak also avers that following his arrest, he was incarcerated in the Allegheny County Jail for seven months. (Compl. p. 6). During that time, he alleges that his phone calls were recorded without his permission, he was locked in a cell for 20 hours per day, he was strip searched ten times, and he was denied proper meals during Lent in violation of his religious beliefs. Mr. Smierciak claims these events violated his Privacy and Civil Rights. Id.

II. STANDARD OF REVIEW

a. Federal Rules of Civil Procedure 12(b)(4) and 12(b)(5)

Rule 4 of the Federal Rules of Civil Procedure "sets forth the procedure by which a court obtains personal jurisdiction over the defendant." Ayres v. Jacobs & Crumplar, P.A., 99 F.3d 565, 569 (3d Cir.1996). The Rule prescribes the process for properly issuing and serving a summons. Fed. R. Civ. P. 4. Pursuant to Rule 4, a summons must, inter alia, name each individual plaintiff and defendant and "be directed to the defendant." Fed. R. Civ. P. 4(a)(1)(A), (B). When a complaint names more than one defendant, a separate summons "must be issued for each defendant to be served." Fed. R. Civ. P. 4(b). A defendant may move to dismiss the complaint or quash service when a plaintiff fails to comply with Rule 4's requirements for the form and method of serving process. Fed. R. Civ. P. 12(b)(4), (b)(5).

In the case of motions challenging the sufficiency of process or method of service, the burden of proof lies with the party raising the challenge. See 2 Moore's Federal Practice § 12.33[1] (3d ed.2013); see also Grand Ent. Group, Ltd. v. Star Media Sales, Inc., 988 F.2d 476,

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488 (3d Cir.1993); Snyder v. Bender, No. 1:09-CV927, 2010 U.S. Dist. LEXIS 130438, 2010 WL 5109655 (M.D.Pa. Nov. 16, 2010). The movant must be specific in its objections and identify the specific manner in which the plaintiff has failed to satisfy the summons or service provision utilized. 2 Moore's § 12.33

b. Federal Rule of Civil Procedure 12(b)(6)

When reviewing a motion to dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must "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." Eid v. Thompson, 740 F.3d 118, 122 (3d Cir. 2014) (quoting Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir.2008)). "To survive a motion to dismiss 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, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic 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, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556); see also Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678. "Factual allegations of a complaint must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. A pleading party need not establish the elements of a prima facie case at this stage; the party must only "put forth allegations that 'raise a reasonable expectation that discovery will reveal evidence of the necessary element[s]."' Fowler v. UPMC Shadyside, 578 F.3d 203, 213 (3d Cir.2009) (quoting Graff v. Subbiah Cardiology Associates, Ltd., 2008 WL 2312671 (W.D. Pa. June 4, 2008)); see also Connelly v. Lane Const. Corp., 809 F.3d 780, 790 (3d Cir.2016) ("Although a reviewing court now...