Spiker v. Allegheny Cnty. Bd. of Prob. & Parole

• Decision Date: 30 January 2013
• Docket Number: Civil Action No. 10–864.
• Citation: 920 F.Supp.2d 580
• Parties: Spencer SPIKER, Plaintiff, v. ALLEGHENY COUNTY BOARD OF PROBATION AND PAROLE, et al., Defendant.
• Court: U.S. District Court — Western District of Pennsylvania

920 F.Supp.2d 580

Spencer SPIKER, Plaintiff,

v.ALLEGHENY COUNTY BOARD OF PROBATION AND PAROLE, et al., Defendant.

Civil Action No. 10–864.

United States District Court,

W.D. Pennsylvania.

Jan. 30, 2013.

Edward A. Olds, Pittsburgh, PA, for Plaintiff.

Bernard M. Schneider, Brucker, Schneider & Porter, Virginia Spencer Scott, Scott Law Office, Andrew F. Szefi, Pittsburgh, PA, for Defendant.

MEMORANDUM OPINION AND ORDER

CONTI, District Judge.

I. Introduction

Plaintiff Spencer Spiker (“Spiker” or “plaintiff”) filed a second amended complaintin this case on May 17, 2011 alleging violations of his civil rights under 42 U.S.C. § 1983 (“§ 1983”) based upon violations of the Fourth and Fourteenth Amendments of the United States Constitution and various tort claims under Pennsylvania law. (ECF No. 108.) Pending before the court are two motions to dismiss the second amended complaint and a motion for leave to file a third amended complaint. The second amended complaint named the following seven individuals as defendants in their individual and official capacities: (1) Jennifer DiGiovanni—Allegheny County Assistant District Attorney (“DiGiovanni”); (2) Laura Ditka—Allegheny County Deputy District Attorney (“Ditka” and together with DiGiovanni, the “DA defendants”); (3) Jacquelyn Whittaker, a supervising probation officer with the Allegheny County Adult Probation Office (“Whittaker”); (4) Sean Kelly—detective with the Allegheny County Police Department (“Kelly” and together with Whittaker, the “county defendants”); (5) Jack Kearney—Lieutenant with the Allegheny County Sheriff's Office (“Kearney”); (6) William Mullen—Allegheny County Sheriff (“Mullen”); and (7) James Rieland—director of Allegheny County Adult Probation (“Rieland”). ( Id. ¶¶ 3–10.)

Four motions to dismiss the second amended complaint were filed on May 31, 2011, with each defendant taking part in one of those motions. (ECF Nos. 109, 111, 115, 117.) In July 2011, plaintiff filed responses in opposition to each of the motions to dismiss. (ECF Nos. 120, 121, 123, 126.) On August 3, 2011, plaintiff filed a motion for reconsideration asking the court to reconsider its previous decision to dismiss plaintiff's equal protection claims against the DA defendants and for the court to allow plaintiff to file a third amended complaint. (ECF No. 127.) The DA defendants filed a response and brief in opposition to plaintiff's motion for reconsideration on August 23, 2011. (ECF Nos. 132, 133.) Plaintiff filed a reply to the DA defendants' response in opposition on September 30, 2011. (ECF No. 134.) The DA defendants filed a motion to strike plaintiff's reply on the same day. (ECF No. 135.) The parties argued the motions to dismiss the second amended complaint and the motion for reconsideration during a hearing before the court held on October 24, 2011. The court took the matter under advisement and deferred ruling on the motions until a later date.

On March 19, 2012, plaintiff filed a motion for leave to file third amended complaint, but did not attach a proposed third amended complaint to the motion. (ECF No. 147.) On April 10, 2012, the court ordered plaintiff to supplement the motion for leave to amend by attaching the proposed third amended complaint. On April 18, 2012, plaintiff supplemented the motion for leave to amend and attached a proposed third amended complaint to the motion. (ECF No. 156.) Plaintiff and Riel and reached a settlement in April 2012, and Rieland and Mullen are not named as defendants in the proposed third amended complaint. ( Id. at 3 n. 3.) On April 23, 2012, the court heard the parties' arguments with respect to plaintiff's motion for leave to file a third amended complaint. The court took the matter under advisement and deferred ruling on that motion until a later date. Rieland's motion to dismiss the second amended complaint (ECF No. 115), Mullen's and Kearney's motion to dismiss the second amended complaint (ECF No. 117), and plaintiff's motion for reconsideration (ECF No. 127) were denied as moot in light of plaintiff's pending motion for leave to file a third amended complaint in which Riel and, Mullen, and Kearney are not named defendants. On January 14, 2011, plaintiff informed the court that he filed a petition for bankruptcy relief and sought a stay in this court in order for the bankruptcy court to approve the retention of plaintiff's counsel in this case. (ECF No. 98.) On November 28, 2012, plaintiff advised this court that the bankruptcy court approved the retention of plaintiff's counsel in this case. (ECF No. 184.) The DA defendants' and the county defendants' motions to dismiss the second amended complaint and plaintiff's motion for leave to file a third amended complaint are now ripe to be decided by the court.

II. Factual Allegations in the Second Amended Complaint

On May 27, 2009, plaintiff pleaded guilty in state court to indecent assault against a person less than thirteen years of age, in violation of 18 Pa. Cons.Stat. § 3126(a)(7), and to endangering the welfare of children, in violation of 18 Pa. Cons.Stat. § 4304(a)(1). (ECF No. 108 ¶ 11.) Plaintiff was sentenced to five years probation as well as a one-year term of intermediate punishment, and was required to register as a sexual offender pursuant to 42 Pa. Cons.Stat. § 9795.1. ( Id.) After sentencing on May 27, 2009, plaintiff reported to the Allegheny County Board of Probation and Parole Intake Office (the “Probation Intake Office”). Sherri Dicicco (“Dicicco”), a Probation Intake Office employee, processed plaintiff's paperwork. ( Id. ¶¶ 11–13.) Dicicco never informed plaintiff about the registration requirements and did not collect and forward his information to the Pennsylvania State Police (the “state police”), ( Id. ¶ 13), which plaintiff asserts was required by 42 Pa. Cons.Stat. § 9795.2(a)(4)(i). Section 9795.2(a)(4)(i) provides:

Where the offender or sexually violent predator was granted parole by the Pennsylvania Board of Probation and Parole or the court or is sentenced to probation or intermediate punishment, the board or county office of probation and parole shall collect registration information from the offender or sexually violent predator and forward that registration information to the Pennsylvania State Police.

42 Pa. Cons.Stat. § 9795.2(a)(4)(i). Dicicco did not know that probation personnel were required by law to inform sexual offenders of their reporting requirements and to collect registration information from the offenders to forward to the state police for entry into the sexual offender registry. (ECF No. 108 ¶ 13.) Dicicco informed plaintiff that there were no standard policies or procedures for processing in the Probation Intake Office. (ECF Nos. 108 ¶ 13, 108–1.) Plaintiff avers that Rieland, director of Allegheny County Adult Probation, did not train his employees and enforce rules and policies which would have ensured Dicicco's compliance with section 9795.2(a)(4)(i). (ECF No. 108 ¶¶ 14–15.) Plaintiff contends this failure constituted deliberate indifference to the rights of sexual offenders because the failure to register constitutes a separate and serious crime. ( Id. at ¶ 15.)

On June 18, 2009, DiGiovanni instructed Kelly to verify plaintiff's compliance with the sexual offender registration requirements. (ECF No. 108 ¶ 16.) According to plaintiff, DiGiovanni acted beyond the scope of her role as a prosecutor in instructing Kelly to investigate plaintiff's compliance with the registration requirements of sexual offenders because, given the totality of the circumstances, DiGiovanni did not have probable cause or reasonable suspicion to believe plaintiff intentionally, knowingly, or recklessly failed to comply such requirements. ( Id. ¶ 18.) Plaintiff alleges DiGiovanni was “fed false information about Spiker by a mutual acquaintance ... which prompted her to irrationally and arbitrarily view Spiker differently from other defendants she had prosecuted.” ( Id. ¶ 93.) According to plaintiff, it was this “personal animus which prompted [DiGiovanni] to start what was in essence a unique investigation against Spiker, to over-see aspects of the investigation, such as insuring his name was published as a highly wanted fugitive and insuring that a detainer was imposed against him.” ( Id.) Plaintiff avers that as a lawyer, DiGiovanni should have known that Pennsylvania law requires the county probation office—not the sexual offender—to submit initial registration information to the state police. ( Id. ¶ 17.) Plaintiff avers DiGiovanni was aware that Dr. Paul Bernstein performed an evaluation of plaintiff and that plaintiff did not present the personality type of a sex offender. Plaintiff alleges DiGiovanni knew the following:

a. Plaintiff was a thirteen-year veteran Army Officer who would have inherently followed all instruction provided without fail;

b. That Plaintiff was attending daily AA meetings;

c. That Plaintiff was attending intensive therapy sessions at the Western Psychiatric Institute and Clinic for depression and alcoholism with positive reports; and

d. That the sex offender registration laws are not intended to be punitive in nature—the legislative intent was purely to safeguard the interest of public safety and not to further punish the registrants.

(ECF No. 108 ¶ 18.)

Kelly called the state police pursuant to DiGiovanni's instruction and determined plaintiff was not registered as a sex offender. (ECF No. 108 ¶ 19.) According to plaintiff, this information did not provide DiGiovanni or Kelly probable cause that plaintiff committed a crime because it was not evidence plaintiff intentionally, knowingly, or recklessly committed the crime, and DiGiovanni knew the Probation Intake Office had the initial burden of forwarding the plaintiff's information to the state police in order to register plaintiff as a sexual offender. ( Id.) Plaintiff contends DiGiovanni should have been aware that a mistake in the registration process...