Wassel v. Torbeck
| Docket Number | Civil Action 3:22-cv-00145 |
| Decision Date | 02 June 2022 |
| Parties | PAUL J. WASSEL JR., #200625, Plaintiff, v. ERIC RICHARD TORBECK, et al., Defendants. |
| Court | U.S. District Court — Middle District of Pennsylvania |
REPORT AND RECOMMENDATION
This is a federal civil rights action, which commenced on January 28 2022, when the clerk received and lodged for filing a pro se complaint, signed and dated by the plaintiff, Paul J Wassel Jr. on January 23, 2022. (Doc. 1.) At the time, Wassel was incarcerated as a pretrial detainee at Pike County Correctional Facility (“PCCF”), located in Pike County, Pennsylvania. The complaint was accompanied by a motion for leave to proceed in forma pauperis, which we have granted in a separate, contemporaneous order. (Doc 2.) For the reasons that follow, we recommend that the action be dismissed for failure to state a claim, pursuant to 28 U.S.C. § 1915A(b)(1), 28 U.S.C. § 1915(e)(2)(B)(ii), and 42 U.S.C. § 1997e(c)(1).
At the time this action commenced, Wassel was a pretrial detainee at PCCF, awaiting trial on various felony and misdemeanor drug charges. On March 11, 2022, following a jury trial, Wassel was found guilty on two counts of felony conspiracy to manufacture, deliver, or possess with intent to manufacture or deliver a controlled substance, and on three related misdemeanor drug counts. See Commonwealth v. Wassel, Docket No. CP-52-CR-0000325-2020 .[1]He is presently awaiting sentencing, which is currently scheduled to take place on June 3, 2022. See id.
For the most part, the plaintiff's claims arise out these criminal proceedings. The pro se complaint identifies seventeen named defendants:[2](1) Hon. Gregory H. Chelak, a state common pleas judge who presided over Wassel's criminal trial proceedings; (2) Hon. Deborah Fischer, a state magisterial district judge who presided over Wassel's preliminary criminal proceedings; (3) Raymond Tonkin, the county district attorney who prosecuted the state criminal case against Wassel; (4) Corporal Shawn Smith, a Pennsylvania state trooper; (5) Trooper Travis Graziano, a Pennsylvania state trooper; (6) Trooper Nicholas Stroud, a Pennsylvania state trooper; (7) Trooper Pricilla Richards, a Pennsylvania state trooper; (8) Detective Mike Jones, an investigator with the Pike County District Attorney's Office (“DA's Office”); (9) Detective Christian Robinson, an investigator with the DA's Office; (10) Detective Luis Rodriguez, an investigator with the DA's Office; (11) Detective Church, an investigator with the DA's Office; (12) Eric Richard Torbeck, an alleged confidential informant; (13) Warden Craig Lowe, the warden of PCCF; (14) the Pennsylvania State Police (“PSP”); (15) the Criminal Investigative Division (“CID”) of the Pike County DA's Office; (16) Pike County; and (17) the United States of America. The gist of the pro se complaint is that the district attorney, the several state troopers and county investigators, and the confidential informant lacked probable cause to arrest, detain, and prosecute Wassel for the various drug offenses of which he was recently convicted; from this, we liberally construe the pro se complaint to assert § 1983 claims against these individual defendants and the state agencies or municipalities that employ them for false arrest, false imprisonment, and malicious prosecution in violation of the Fourth Amendment.[3]In addition, the complaint alleges a variety of errors by the two state court judges in conducting the criminal proceedings against him, which we liberally construe as § 1983 procedural due process claims under the Fourteenth Amendment.
These false arrest, false imprisonment, and malicious prosecution claims arise out of the June 25, 2020, arrest of Wassel at a motel in Pike County, and his subsequent detention and criminal prosecution.
The alleged confidential informant, defendant Eric Torbeck, had made arrangements for Wassel to provide a car and travel with a nonparty individual, Kenneth Smith, to transport a quantity of illegal drugs from Patterson, New Jersey, to Pike County. At the behest of the police, Torbeck had set up a “controlled buy” from Smith at the motel in Pike County. He informed police that Smith and Wassel would be operating a white Chevrolet Malibu sedan, and he informed police of their expected departure and arrival times. Torbeck informed police that Smith and Wassel would be transporting heroin/fentanyl in packaging bearing a “Mike Tyson” stamp. He indicated that they would likely hide packets of heroin/fentanyl in their socks, and that Smith preferred to hide his heroin/fentanyl under the hood of a car in which he was traveling. Torbeck also advised police that Smith typically carried “protection,” which Torbeck understood to mean a firearm.
At 4:30 a.m. on June 25, 2020, waiting police observed a white Chevrolet Malibu crossing a toll bridge from New Jersey into Pike County. One of the defendant state troopers followed the Malibu and observed two occupants. The Malibu pulled into the motel parking lot where the controlled buy had been set up, and it was encountered by the other defendant state troopers and county investigators. The operator of the vehicle was identified as Smith, and the sole passenger was identified as Wassel. When interviewed, they provided inconsistent statements.
The state trooper speaking with Wassel began to perform a “pat down” search of Wassel's person. Wassel informed the trooper that he was in possession of “weed” and removed a small, clear plastic baggie of marijuana from his own pants pocket. He also informed the trooper that he had a medical marijuana card. But the trooper observed that the baggie was not labeled and did not appear to be from a licensed dispensary.
The state trooper later placed Wassel in handcuffs and informed him that he was under arrest. The state trooper then performed a search of Wassel incident to arrest, locating an empty glassine packet stamped “Mike Tyson” in Wassel's pants pocket, and nine full glassine packets of heroin/fentanyl stamped “Mike Tyson” that had been bound together with a rubber band and hidden in his sock.
Both Smith and Wassel were taken into custody and transported to a state police barracks. The Malibu was towed to the barracks and placed in secured storage. State troopers later obtained and executed a search warrant for the vehicle. Under the hood of the vehicle, they found a watertight plastic container. Inside the container, they found 46 bricks of heroin/fentanyl and three bundles of heroin/fentanyl in glassine packets stamped “Mike Tyson.” They also found an iPhone, U.S. currency, and drug paraphernalia.
After being advised of his Miranda rights, Wassel informed one of the investigating state troopers that Smith had offered him a brick of heroin as payment to drive him. Wassel stated that, when they arrived in Patterson, New Jersey, Smith gave him a bundle of heroin, and Wassel related that he had assumed Smith would give him the rest when they got back from Patterson.
Based on the foregoing, one of the defendant state troopers filed a criminal complaint against Wassel, asserting the felony and misdemeanor charges described previously. Wassel was arraigned that same day, June 25, 2020, and bail of $800,000 was set. But Wassel was unable to post bail, and he remained in pretrial custody.
Following a preliminary hearing on July 8, 2020, the charges were bound over to the court of common pleas. On June 23, 2021, defense counsel filed a pretrial suppression motion, seeking to suppress the evidence and statements obtained from Wassel and the vehicle on the grounds that the investigating police officers lacked probable cause to search his person or to obtain a search warrant for the car, and that the statements were obtained when investigators continued to question Wassel after he had invoked his right to counsel. The state trial court held a hearing on the suppression motion on September 30, 2021, and the parties subsequently filed briefs on the matter. On January 12, 2022, the state trial court denied the motion in its entirety, finding that police had probable cause to suspect criminal activity, to conduct an investigatory detention, and to arrest Wassel, and that Wassel was clearly advised of his Miranda rights and indicated that he understood those rights before engaging in a police interview where he made incriminating statements.
As noted above, on March 11, 2022, following a jury trial, Wassel was found guilty of several felony and misdemeanor drug offenses arising out of the June 25, 2020, encounter, and he is currently awaiting sentencing.
The pro se complaint also appears to assert § 1983 claims against the warden of PCCF arising out of allegedly unconstitutional conditions of confinement, which we liberally construe as § 1983 substantive due process claims under the Fourteenth Amendment.[4] The plaintiff generally alleges that he contracted COVID while incarcerated at PCCF and was confined to his cell for 23 or 23% hours per day for extended periods of his pretrial incarceration. There are few specific facts alleged in support of this claim.
Finally, the pro se complaint names the United States as a defendant but omits any specific factual allegations of conduct by federal government, its agencies, or its officers.
The plaintiff bears the burden of establishing the existence of subject matter jurisdiction when challenged under Rule 12(b)(1). See Kehr Packages, Inc. v. Fidelcor, Inc. 926 F.2d 1406, 1409 (3d Cir. 1991). A defendant may challenge the existence of subject matter jurisdiction in one of two fashions: it may attack the...
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