WALKER v. CITY OF PHILADELPHIA

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

RONALD WALKER, :

Plaintiff, :

:

v. : CIVIL ACTION NO. 20-CV-0315

:

CITY OF PHILADELPHIA, et al., :

Defendants. :

MEMORANDUM

KENNEY, J. AUGUST 14, 2020

This matter comes before the Court by way of an Amended Complaint (ECF No. 7),1

brought by Plaintiff Ronald Walker, proceeding pro se. Also before the Court is Walker’s

Motion for Leave to Proceed In Forma Pauperis (ECF No. 8) and his Prisoner Trust Fund

Account Statement (ECF No. 9).2 Because it appears that Walker is unable to afford to pay the

1 Walker initiated this action by way of a Complaint (ECF No. 2) submitted to the Court on

January 16, 2020. However, on May 26, 2020, Walker submitted an Amended Complaint (ECF

No. 7) in this matter. It is well recognized that an amended complaint, once submitted to the

Court, serves as the governing pleading in the case because an amended complaint supersedes

the prior pleading. See Shahid v. Borough of Darby, 666 F. App’x 221, 223 n.2 (3d Cir. 2016)

(per curiam) (“Shahid’s amended complaint, however, superseded his initial complaint.”) (citing

W. Run Student Hous. Assocs. LLC v. Huntingdon Nat’l Bank, 712 F.3d 165, 171 (3d Cir. 2013));

see also Garrett v. Wexford Health, 938 F.3d 69, 82 (3d Cir. 2019) (“In general, an amended

pleading supersedes the original pleading and renders the original pleading a nullity. Thus, the

most recently filed amended complaint becomes the operative pleading.”) (internal citations

omitted). Accordingly, the Amended Complaint Walker submitted to the Court after his initial

Complaint supersedes the original, and the Court will proceed to screen the Amended Complaint.

2 At the time Walker initiated this matter on January 16, 2020, he failed to file a copy of his

prisoner account statement for the six-month period prior to filing this action. By Order entered

January 27, 2020, the Court denied Walker’s original request to proceed in forma pauperis and

directed Walker to either pay $400 to the Clerk of Court or file a new motion to proceed in forma

pauperis along with a certified copy of his prisoner account statement within thirty days. (ECF

No. 4 at 1.) Walker subsequently filed the pending Motion for Leave to Proceed In Forma

Pauperis (ECF No. 8) along with his Prisoner Trust Fund Account Statement (ECF No. 9) which

are now properly before the Court for review.

filing fee, the Court will grant him leave to proceed in forma pauperis. For the following

reasons, the Amended Complaint will be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

I. FACTUAL ALLEGATIONS3

Walker, a prisoner currently incarcerated at State Correctional Institution – Phoenix

(“SCI Phoenix”), brings this civil rights action pursuant to 42 U.S.C. § 1983 alleging violations

of his Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment rights by the following

Defendants: (1) the City of Philadelphia; (2) the Office of the District Attorney; (3) Assistant

District Attorney Erin O’Brien (“ADA O’Brien”); and (4) Michael McDermott, Esq., counsel for

Walker at his criminal trial. (Am. Compl. ECF No. 7 at 1-2.)

Walker alleges that on or about October 28, 2014, he was “arrested . . . and charged with

several offenses” including, but not limited to arson, causing a catastrophe, burglary, criminal

trespass, theft by unlawful taking, receiving stolen property, retaliation against a witness or

victim, intimidation of a witness or victim, criminal solicitation, discharge of a firearm into an

occupied structure, simple assault, recklessly endangering another person, criminal mischief, and

conspiracy. (ECF No. 7 at 2); see also Commonwealth v. Walker, CP-51-CR-0013498-2014,

(C.P. Phila.); Commonwealth v. Walker, CP-51-CR-0013501-2014 (C.P. Phila.); Commonwealth

v. Walker, CP-51-CR-0013502-2014 (C.P. Phila.). At the time of his arrest for these charges,

Walker contends that he was “being held on a previous case at [Curran-Fromhold Correctional

Facility]” and was “brought down [to the 25th District] and . . . charged with [these] 3 additional

dockets[.]” (ECF No. 7 at 2, n. 1.) Walker alleges that he was indicted on docket CP-51-CR-

0013501-2014 on November 20, 2014 and was convicted by a jury of these offenses on or about

3 The facts set forth in this Memorandum are taken from Walker’s Amended Complaint and the

documents and exhibits attached thereto.

April 15, 2015. (Id. at 3.) Walker was sentenced on or about September 15, 2016, and the

Superior Court affirmed the judgment of sentence on or about August 23, 2018. (Id. at 4.) In

September of 2019, Walker filed several motions before the trial court in the Philadelphia

County Court of Common Pleas “arguing the illegality of his prosecution for this docket, [and]

the lack of jurisdiction to proceed to trial and asked for bail.” (Id. at 5.)

In this action, Walker’s primary allegation is that ADA O’Brien prosecuted him on what

he believes to be an “illegal docket.” Specifically, Walker contends that ADA O’Brien “violated

his Constitutional Rights by proceeding to arrest [him], charge [him], [securing] an excessive

bail of 2 million dollars, present[ing] this illegal docket to the Indicting Grand Jury, . . .

[securing] an indictment, present[ing] this illegal docket at trial, [securing] a conviction on this

illegal docket, and argu[ing] for [him] to pay restitution on this illegal docket.” (Id.) (footnotes

omitted). Walker alleges that ADA O’Brien knew that “she had no probable cause affidavit nor

arrest warrant for this illegal docket. (Id.) Walker further contends that the “indictments and

trial proceedings are a nullity” because ADA O’Brien “never petitioned the Pa. Supreme Court

to commence with an Indicting Grand Jury, pursuant to . . . Pa. Rules of Criminal Procedure

556(B).” (Id.) (footnote omitted).

As a result, Walker alleges that he is “still incarcerated” and “paying restitution on this

illegal docket” because “no one wants to be held accountable nor address these infringements.”

(Id. at 6.) Walker seeks five million dollars in compensatory damages from the City of

Philadelphia and the District Attorney’s Office, as well as another five million dollars in punitive

damages. (Id. at 7.) Similarly, he seeks $50,000 in compensatory damages each from both ADA

O’Brien and Defendant McDermott, in addition to $50,000 in punitive damages from each. (Id.)

II. STANDARD OF REVIEW

The Court will grant Walker leave to proceed in forma pauperis because it appears that

he is incapable of paying the fees to commence this civil action.4 Accordingly, 28 U.S.C. §

1915(e)(2)(B) requires the Court to dismiss the Amended Complaint if, among other things, it is

frivolous or fails to state a claim. A complaint is subject to dismissal under § 1915(e)(2)(B)(i) as

frivolous if it “lacks an arguable basis either in law or in fact,” Neitzke v. Williams, 490 U.S. 319,

325 (1989), and is legally baseless if it is “based on an indisputably meritless legal theory.”

Deutsch v. United States, 67 F.3d 1080, 1085 (3d Cir. 1995). Whether a complaint fails to state a

claim under § 1915(e)(2)(B)(ii) is governed by the same standard applicable to motions to

dismiss under Federal Rule of Civil Procedure 12(b)(6), see Tourscher v. McCullough, 184 F.3d

236, 240 (3d Cir. 1999), which requires the Court to determine whether the complaint contains

“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) (quotations omitted). Conclusory allegations do not

suffice. Id. As Walker is proceeding pro se, the Court construes his allegations liberally. Higgs

v. Att’y Gen., 655 F.3d 333, 339 (3d Cir. 2011). However, in screening the Amended Complaint,

which supersedes the original, the Court is limited to the allegations in the Amended Complaint

in determining whether Walker has stated a claim for relief. See Argentina v. Gillette, 778 F.

App’x. 173, 175 n.3 (3d Cir. 2019) (recognizing that “liberal construction of a pro se amended

complaint does not mean accumulating allegations from superseded pleadings.”).

III. DISCUSSION

Walker’s Amended Complaint alleges claims for violations of his civil rights pursuant to

42 U.S.C. § 1983, the vehicle by which federal constitutional claims may be brought in federal

4 However, because Walker is a prisoner, he is obliged to pay the filing fee in installments in

accordance with the Prison Litigation Reform Act. See 28 U.S.C. § 1915(b).

court. “To state a claim under § 1983, a plaintiff must allege the violation of a right secured by

the Constitution and laws of the United States, and must show that the alleged deprivation was

committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).

A. Claims Against the City of Philadelphia

Walker’s names the City of Philadelphia as a Defendant on the ground that the “City of

Philadelphia, is the employer of the District Attorney’s Office” and it is the City’s “responsibility

to ensure that their employees adhere to the ‘Laws of the Land.’” (ECF No. 7 at 1.) Construing

his Complaint liberally, it appears that Walker intends to hold the City of Philadelphia liable

based on respondeat superior theory for the actions of the District Attorney’s Office and,

presumably, ADA O’Brien. This claim is not plausible.

Local governments can be liable as “persons” under § 1983, however, this liability

extends only to “their own illegal acts.” Connick v. Thompson, 563 U.S. 51, 60 (2011) (emphasis

in original) (quoting Pembaur v. Cincinnati, 475 U.S. 469, 479 (1986)); see Monell v. Dep’t of

Soc. Servs. of City of New York, 436 U.S. 658, 665-83 (1978). This limitation is based on the

well-established principle that municipalities “are not vicariously liable under § 1983 for their

employees’ actions.” Connick, 563 U.S. at 60; Monell, 436 U.S. at 691 (“[A] municipality

cannot be held liable solely because it employs a tortfeasor — or, in other words, a municipality

cannot be held liable under § 1983 on a respondeat superior theory.”) (emphasis in original).

under Monell v. Dept. of Social Servs., 436 U.S. 658 (1978). Because there is no respondeat

superior for municipal liability under § 1983, the claim against the City of Philadelphia is

dismissed.5

5 The Court notes that any claim against the City of Philadelphia based on Monell liability is

also not plausible. To state a plausible claim, a plaintiff must allege that the municipality’s

policy or custom caused the violation of his constitutional rights. See Monell, 436 U.S. at 694.

“To satisfy the pleading standard, [the plaintiff] must . . . specify what exactly that custom or

B. Claims Against the District Attorney’s Office

Walker alleges that the “office of the District Attorney, is responsible for the training of

prosecutor’s [sic] and to oversee the initiation of criminal prosecution according to what the

‘LAW’ allows.” (ECF No. 7 at 2.) Walker’s § 1983 claim against the Philadelphia District

Attorney’s Office will be dismissed with prejudice because district attorney’s offices in

Pennsylvania are not entities subject to suit under § 1983. See Reitz v. Cty. of Bucks, 125 F.3d

139, 148 (3d Cir. 1997) (holding that “the Bucks County District Attorney’s Office is not an

entity for purposes of § 1983 liability”).

C. Claims Against ADA O’Brien

Walker seeks to bring § 1983 claims against Defendant ADA O’Brien who was the

prosecutor responsible for prosecuting the criminal charges against Walker. Walker challenges

ADA O’Brien’s conduct in filing a sealed motion to preclude a preliminary hearing and for

opting to commence an Indicting Grand Jury. (ECF No. 7 at 3.) He alleges that ADA O’Brien

did not have a probable cause affidavit or an arrest warrant and that she therefore used an “illegal

docket” to arrest him, charge him, secure an excessive bail, obtain an indictment from the grand

jury, take him to trial, and secure a conviction and sentence against him. (Id. at 5.) Prosecutors

policy was.” McTernan v. City of York, PA, 564 F.3d 636, 658 (3d Cir. 2009). “‘Policy is made

when a decisionmaker possess[ing] final authority to establish municipal policy with respect to

the action issues an official proclamation, policy, or edict.’” Estate of Roman v. City of Newark,

914 F.3d 789, 798 (3d Cir. 2019) (quoting Andrews v. City of Philadelphia, 895 F.2d 1469, 1480

(3d Cir. 1990)). “‘Custom, on the other hand, can be proven by showing that a given course of

conduct, although not specifically endorsed or authorized by law, is so well-settled and

permanent as virtually to constitute law.’” Id. (quoting Bielevicz v. Dubinon, 915 F.2d 845, 850

(3d Cir. 1990)). A plaintiff demonstrates that a custom was the proximate cause of his injuries

by establishing that the defendant “had knowledge of similar unlawful conduct in the past, failed

to take precautions against future violations, and that its failure, at least in part, led to his injury.”

Id. (internal quotations and alterations omitted). As Walker makes no allegation that a specific

custom or policy caused the alleged violation of his constitutional rights, any Monell claim

against the City of Philadelphia is also not plausible.

are entitled to absolute immunity from liability under § 1983 for acts that are “intimately

associated with the judicial phase of the criminal process” such as “initiating a prosecution and . .

. presenting the State’s case.” Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976). Accordingly,

the allegations that ADA O’Brien acted on an “illegal docket”, even if true, challenge actions

that were clearly taken in her prosecutorial capacity in presenting the Commonwealth’s case

against Walker and she is absolutely immune. Since Walker’s claim against ADA O’Brien is

legally implausible, it will be dismissed with prejudice under 28 U.S.C. § 1915(e)(2)(B)(ii).

D. Claims Against Defendant McDermott

The claims against Defendant McDermott are based upon his role as the criminal defense

attorney representing Walker in his state criminal proceedings. Walker alleges that despite being

“paid to advocate” for him, McDermott exhibited a “lack of preparation” at Walker’s trial and

“overlooked pertinent documents” that would have been obvious to an attorney who properly

prepared for trial. (ECF No. 7 at 2.) Walker asserts that McDermott failed to argue that the

“trial court had no jurisdiction to proceed to trial” and that McDermott did not communicate with

Walker and his family with regard to a delay in his sentencing. (Id. at 2-3.) Walker asserts that

McDermott, among others, “should have noticed these infringements” with respect to the

violations of his constitutional rights from the prosecution on this “illegal docket[.]” (Id. at 6.)

Because criminal defense attorneys are not “state actors” under § 1983, the constitutional claims

against McDermott must be dismissed with prejudice. See Polk Cty. v. Dodson, 454 U.S. 312,

325 (1981) (“[A] public defender does not act under color of state law when performing a

lawyer’ s traditional functions as counsel to a defendant in a criminal proceeding.” ) (footnote

omitted); Angelico v. Lehigh Valley Hosp., Inc., 184 F.3d 268, 277 (3d Cir. 1999) (“Attorneys

performing their traditional functions will not be considered state actors solely on the basis of

their position as officers of the court.”).

IV. CONCLUSION

For the foregoing reasons, the Court will grant Walker leave to proceed in forma

pauperis and dismiss his Amended Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for

failure to state a claim against the City of Philadelphia, the Office of the District Attorney,

Assistant District Attorney Erin O’Brien, and Michael McDermott, Esquire. Because any

attempt at amendment would be futile, the dismissal against these Defendants will be with

prejudice and no leave to amend will be granted. See Grayson v. Mayview State Hosp., 293 F.3d

103, 108, 110 (3d Cir. 2002); see also Shane v. Fauver, 213 F.3d 113, 116 (3d Cir. 2000). An

appropriate Order follows.6

BY THE COURT:

/s/ Chad F. Kenney

___________________________________

CHAD F. KENNEY, J.

6 To the extent Walker could name a proper Defendant, any claim based on the allegations in the

Amended Complaint could not proceed at this time for an additional reason. Although Walker

does not explicitly state the nature of his § 1983 claims, granting a liberal construction to the

Amended Complaint it appears that all of his claims are based on false imprisonment and

malicious prosecution.

“[T]o recover damages [or other relief] for allegedly unconstitutional conviction or

imprisonment, or for other harm caused by actions whose unlawfulness would render a

conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has

been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal

authorized to make such determination, or called into question by a federal court’s issuance of a

writ of habeas corpus[.]” Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) (footnote and citation

omitted); see also Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (“[A] state prisoner’s § 1983

action is barred (absent prior invalidation) — no matter the relief sought (damages or equitable

relief), no matter the target of the prisoner’s suit (state conduct leading to conviction or internal

prison proceedings) — if success in that action would necessarily demonstrate the invalidity of

confinement or its duration.” (emphasis omitted)).

Walker appears to seek damages for imprisonment and for alleged constitutional violations

that occurred in the course of a criminal prosecution that did not terminate in his favor. As

Walker’s underlying conviction and imprisonment have not been reversed or otherwise

invalidated, any constitutional claims related to his prosecution and imprisonment are not

cognizable at this time.