SCOTT v. TONKIN

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

TONIA SCOTT, :

Plaintiff, :

:

v. : CIVIL ACTION NO. 20-CV-5412

:

RAYMOND TONKIN, et al., :

Defendants. :

MEMORANDUM

ROBRENO, J. DECEMBER 9, 2020

Plaintiff Tonia Scott, a prisoner currently confined at the Norristown State Hospital in

connection with criminal charges pending against her in Pike County, filed this civil action

against Pike County District Attorney Raymond Tonkin and Jessica Keith, identified in the

Complaint as the CEO of Norristown State Hospital. For the following reasons, the Court will

dismiss Scott’s Complaint pursuant to 28 U.S.C. § 1915A(b)(1), as legally frivolous and for

failure to state a claim.

I. FACTUAL ALLEGATIONS1

Scott has been charged with numerous offenses, including aggravated assault, terrorism,

criminal trespass, defiant trespass, firearms offenses, simple assault, and harassment, in three

separate criminal matters pending before the Court of Common Pleas for Pike County,

Pennsylvania. See Commonwealth v. Scott, Docket Nos. CP-52-CR-0000096-2020, CP-52-CR-

0000211-2020, CP-52-CR-0000687-2019 (C.P. Pike). The docket sheets for these matters

1 The following allegations are taken from Scott’s Complaint, exhibits attached thereto, and

public dockets of which the Court may take judicial notice. See Buck v. Hampton Twp. Sch.

Dist., 452 F.3d 256, 260 (3d Cir. 2006).

reflect that Scott was recently found incompetent to stand trial and committed to the Norristown

State Hospital for treatment.2 See id.

Scott’s claims in the instant matter concern her prosecution in Pike County and her

related confinement at the Norristown State Hospital. Scott identifies herself as the Principal

Chief of the Saw Creek and Pine Ridge Indian communities. (ECF No. 2 at 5.)3 Scott alleges

that on November 18, 2019, she and “tribal officials were illegally and unlawfully arrested by

over twenty (20) Pennsylvania State Police Officers on the Pike County Land recorded Indian

Title of Pine Ridge” upon which the officers were allegedly trespassing. (Id.) She alleges that

District Attorney Tonkin initiated false charges against her to “extort” her “into the

Commonwealth of Pennsylvania’s civil and criminal jurisdiction.” (Id. at 3.) That allegation

appears to be predicated on Scott’s assertion that “the Saw Creek and Pine Ridge Indian

Communities Tribal Government has Not contracted with the Commonwealth of Pennsylvania

for Assumption by State of Criminal Jurisdiction.” (Id. at 13 (emphasis in original).) In short,

she believes that the Pike County Court of Common Pleas lacks jurisdiction to prosecute her for

the crimes with which she is charged.

2 The Court recognizes that it has an obligation to protect an “incompetent person who is

unrepresented in an action.” See Fed. R. Civ. P. 17(c)(2). Because Scott has been adjudicated

incompetent by the state court, appointment of a guardian ad litem, attorney, or other

representative would appear to be required in the above-captioned case if it proceeded past

screening. See Powell v. Symons, 680 F.3d 301 (3d Cir. 2012). However, the Court may still

conduct a screening pursuant to the PLRA consistent with Rule 17. See id. at 307 (noting that

“[i]n the context of unrepresented litigants proceeding in forma pauperis, this inquiry [under

Rule 17] would usually occur after the preliminary merits screening under 28 U.S.C. § 1915A or

28 U.S.C. § 1915(e)(2)”); see also Himchak v. Dye, 684 F. App’x 249, 252 (3d Cir. 2017)

(noting that the district court did not abuse its discretion by not appointing a guardian pursuant to

Rule 17 because it properly dismissed the complaint under screening provisions).

3 The Court adopts the pagination assigned to Scott’s submissions by the CM/ECF docketing

system.

As a result of the charges, Scott claims she has been falsely imprisoned in two

institutions, the Pike County Correctional Facility (“PCCF”)4 and Norristown State Hospital,

where she has been held since October 14, 2020. (Id. at 3.) Scott alleges that she is being held at

Norristown State Hospital without her consent or a contract. (Id.) She also claims she lost

unspecified personal property when it was unlawfully seized by the Pennsylvania State Police.

(Id. at 5.)

Scott indicates that she is bringing constitutional claims pursuant to 42 U.S.C. § 1983.5

(Id. at 3.) She seeks the following injunctive relief: (1) suspension of the all criminal charges;

(2) release from custody/“restrain[t]” of her imprisonment at Norristown State Hospital; and (3)

“an injunction to have her personal property returned to her that was unlawfully and illegally

seized by the Pennsylvania State Police.” (Id. at 5 & 14.) Scott subsequently submitted

numerous exhibits and letters, which pertain to proceedings in her Pike County criminal cases

4 At times in her Complaint and exhibits, Scott discusses the conditions at PCCF. (See ECF No.

2 at 6.) None of these allegations support a legal basis for a claim against the Defendants named

in this lawsuit. Accordingly, the Court does not read the Complaint to raise claims based on

Scott’s conditions of confinement at PCCF. In the event Scott seeks to raise any such claims,

she must do so in a new lawsuit filed in the United States District Court for the Middle District

of Pennsylvania, which is the proper venue for any such claims. See 28 U.S.C. §§ 118(b) &

1391.

5 Scott also cites 18 U.S.C. § 241 and § 242, (ECF No. 2 at 3), but these are criminal statutes that

do not give rise to civil claims for liability, so any claims under these statutes lack a legal basis.

See Cent. Bank of Dover, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 190 (1994)

(“We have been quite reluctant to infer a private right of action from a criminal prohibition

alone[.].”); see also Colon-Montanez v. Pennsylvania Healthcare Serv. Staffs, 530 F. App’x 115,

118 (3d Cir. 2013) (per curiam) (“[T]hese criminal statutes [18 U.S.C. §§ 241 and 242] provide

no private right of action for use by a litigant such as Colon–Montanez.”).

and reassert that she is being held at Norristown State Hospital without her consent, and a brief

in support of her Complaint.6 (ECF Nos. 4-10 & 12.)

Prior to filing her Complaint in this Court, Scott filed a petition for a writ of habeas

corpus pursuant to 28 U.S.C. § 2241 in the Middle District of Pennsylvania. In evaluating that

petition, Judge Kane dismissed without prejudice any claims Scott raised on behalf of others,

dismissed Scott’s claims challenging the conditions of confinement at PCCF without prejudice to

her raising those claims in a separate lawsuit, and directed Scott to file an amended petition. See

Scott v. Pike Cty. Corr. Facility, Civ. A. No. 20-828, 2020 WL 5548721, at *1 (M.D. Pa. Sept.

16, 2020). Scott filed an amended habeas petition, which Judge Kane ultimately dismissed

without prejudice because Scott “failed to demonstrate the extraordinary circumstances

necessary for the Court to excuse her failure to exhaust and adjudicate her claims for relief on the

merits.” Id. at *3.

Following the dismissal of her habeas petition, Scott was transferred to Norristown State

Hospital. She thereafter filed the instant lawsuit and an identical lawsuit in the Middle District

of Pennsylvania, which Judge Kane dismissed upon screening for the following reasons. See

Scott v. Tonkin, Civ. A. No. 20-02067, 2020 WL 6940828, at *1 (M.D. Pa. Nov. 25, 2020).

First, the court concluded that to the extent Scott sought release from custody, such relief was not

available to her in a § 1983 action. Id. at *3. Second, the court concluded that it could not

intervene in Scott’s pending criminal cases. Id. at *3-*4 (citing Younger v. Harris, 401 U.S. 37

(1971)). Third, the court dismissed any claims raised pursuant to 18 U.S.C. § 241 and § 242

6 Scott also filed a Motion in which she seeks leave to file electronically and for the Court to

release her on bail. (ECF No. 11.) The request for bail is denied for the reasons discussed

below. The Court will also decline in its discretion to permit Scott to file documents

electronically in this case.

because neither of those statutes creates a civil cause of action. Id. at *4. Fourth, the court

rejected Scott’s request for an injunction against the officers who seized her property because she

had not named those officers as defendants and, in any event, failed to allege that she had taken

advantage of available state procedures or that those procedures were defective. Id. Fifth, the

court concluded that Tonkin was entitled to absolute prosecutorial immunity. Id. Finally, the

court dismissed Scott’s claims against Keith without prejudice to Scott’s ability to pursue those

claims in her instant lawsuit, where venue over those claims was proper. Id. at *5.

II. STANDARD OF REVIEW

Scott seeks to proceed in forma pauperis in this matter but, as she is a prisoner for

purposes of the Prison Litigation Reform Act, see 28 U.S.C. § 1915(h), she was required to

submit a certified copy of her prison account statement from any facility in which she was

confined for the six-month period prior to filing her Complaint. Id. § 1915(a)(2). Regardless, in

Brown v. Sage, 941 F.3d 655, 660 (3d Cir. 2019) (en banc), the United States Court of Appeals

for the Third Circuit announced a “flexible approach” that permits the screening of complaints

filed by prisoners pursuant 28 U.S.C. § 1915A even if the prisoner has neither paid the fees nor

been granted in forma pauperis status.

Section 1915A requires that the Court “review, before docketing, if feasible or, in any

event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner

seeks redress from a governmental entity or officer or employee of a governmental entity.” 28

U.S.C. § 1915A(a). In doing so, the Court must dismiss a complaint or any portion thereof that

“is frivolous, malicious, or fails to state a claim upon which relief may be granted.” Id. §

1915A(b)(1). A complaint is 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). To survive dismissal for failure to state a claim, 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) (quotations omitted). As Scott is proceeding pro se, the Court

construes her allegations liberally. Higgs v. Att’y Gen., 655 F.3d 333, 339 (3d Cir. 2011).

III. DISCUSSION

A. Claims Seeking Release and Dismissal of Criminal Charges

The primary gist of Scott’s Complaint is that she seeks release from Norristown State

Hospital and/or dismissal of the charges pending against her in Pike County on the basis that the

Commonwealth lacks jurisdiction over her because of her Native American heritage and/or the

status of the land upon which she was arrested. In other words, she is challenging the legality of

her custody, which is based on the pending criminal charges in Pike County. When a prisoner

“is challenging the very fact or duration of h[er] physical imprisonment, and the relief [s]he

seeks is a determination that [s]he is entitled to immediate release or a speedier release from that

imprisonment, h[er] sole federal remedy is a writ of habeas corpus.” See Preiser v. Rodriguez,

411 U.S. 475, 500 (1973). A request for dismissal of criminal charges is akin to a request for

release so that relief, too, is only available through a habeas petition. See Jaffery v. Atl. Cty.

Prosecutor’s Office, 695 F. App’x 38, 41-42 (3d Cir. 2017) (per curiam) (“[T]o the extent Jaffery

seeks dismissal of the charges against him as a result of constitutional violations, such relief is

only available through a writ of habeas corpus.”); Duran v. Weeks, 399 F. App’x 756, 759 (3d

Cir. 2010) (per curiam) (“[T]o the extent that Duran is seeking dismissal of the charges against

him as a result of constitutional violations, he is essentially asking for relief only available

through habeas corpus.”).

In any event, the Court will abstain from interference in Scott’s state criminal

proceedings. In Younger v. Harris, 401 U.S. 37 (1971), the United States Supreme Court

“established a principle of abstention when federal adjudication would disrupt an ongoing state

criminal proceeding.” Yang v. Tsui, 416 F.3d 199, 202 (3d Cir. 2005); see also PDX N., Inc. v.

Comm’r N.J. Dep't of Labor & Workforce Dev., 978 F.3d 871, 882 (3d Cir. 2020) (explaining

that Younger applies when the underlying state case is a criminal prosecution). Younger

abstention “is premised on the notion of comity, a principle of deference and ‘proper respect’ for

state governmental functions in our federal system.” Evans v. Court of Common Pleas,

Delaware Cty., Pa., 959 F.2d 1227, 1234 (3d Cir. 1992). The specific elements that warrant

abstention are that “(1) there are ongoing state proceedings that are judicial in nature; (2) the

state proceedings implicate important state interests; and (3) the state proceedings afford an

adequate opportunity to raise federal claims.” Schall v. Joyce, 885 F.2d 101, 106 (3d Cir. 1989).

The requirements for Younger abstention are clearly met in this case. First, the criminal

proceedings against Scott are still pending. Second, the state proceedings implicate the

important interest of enforcing the Commonwealth’s criminal laws. Third, the criminal

proceedings provide Scott an adequate opportunity to argue in the state forum for dismissal of

the charges. See Jaffery, 695 F. App’x at 40-41 (Younger applied where “[t]here are ongoing

state criminal proceedings in the Superior Court of New Jersey that are judicial in nature, the

state proceedings implicate the important state interest in prosecuting criminal behavior, and the

state proceedings provide Jaffery an opportunity to raise federal constitutional defenses to

prosecution”); Duran, 399 F. App’x at 758-59 (“Since Duran’s section 1983 action seeking to

enjoin his criminal prosecution presents the classic case for Younger abstention, the District

Court’s dismissal of Duran’s complaint on that basis was clearly appropriate.”).

For the above reasons, the Court will dismiss Scott’s challenges to her pending criminal

proceedings and her related custody without prejudice to her raising her challenges in her state

criminal proceedings or in a habeas petition filed in the Middle District of Pennsylvania after

exhaustion of state remedies. See Eldakroury v. Att’y Gen. of N.J., 601 F. App’x 156, 158 (3d

Cir. 2015) (per curiam) (explaining that non-merit based dismissals, such as a dismissal pursuant

to Younger must be without prejudice); see also Braden v. 30th Judicial Circuit Court of

Kentucky, 410 U.S. 484, 493-94 (1973) (discussing venue in the context of habeas petitions).

B. Seizure of Personal Property

Scott also requests an injunction directing the Pennsylvania State Police officers who

seized her unspecified property upon arrest to return that property to her. Initially, any claims

based on the deprivation of her property by police officers fails because Scott has not named

those officers as Defendants in this case. In dismissing Scott’s identical claims in her case in the

Middle District of Pennsylvania, the court construed the complaint as raising a due process claim

and dismissed the claim as meritless as follows:

“If there is a process on the books that appears to provide due process, the

plaintiff cannot skip that process and use the federal courts as a means to get back

what [s]he wants.” Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000). Moreover,

“if negligent deprivations of property do not violate the Due Process Clause

because predeprivation process is impracticable, it follows that intentional

deprivations do not violate that Clause provided, of course, that adequate state

post-deprivation remedies are available.” See Hudson v. Palmer, 468 U.S. 517,

533 (1984).

In Pennsylvania, “[a] person aggrieved by a search and seizure, whether or not

executed pursuant to a warrant, may move for the return of the property on the

ground that [s]he is entitled to lawful possession thereof.” See Pa. R. Crim. P.

324(a). This motion must be “filed in the Court of Common Pleas for the judicial

district in which the property was seized.” See id. In the instant case, Plaintiff

does not indicate that she filed a motion for return of her property in state court,

nor does Plaintiff challenge the adequacy of Pennsylvania's procedure for the

return of property. Thus, she has failed to state a claim for relief pursuant to the

Fourteenth Amendment's Due Process Clause. See Gulley v. Haymaker, No. 06-

131J, 2009 WL 763549, at *12 (W.D. Pa. Mar. 23, 2009).

Scott, 2020 WL 6940828, at *4. So too here. Accordingly, the Court will dismiss claims based

on Scott’s personal property without prejudice to her right to pursue the return of her property in

state court.

IV. CONCLUSION

For the foregoing reasons, the Court will dismiss Scott’s Complaint as legally baseless

and for failure to state a claim pursuant to 28 U.S.C. § 1915A(b)(1). Scott will not be permitted

to file an amended complaint because amendment would be futile. See Grayson v. Mayview

State Hosp., 293 F.3d 103, 114 (3d Cir. 2002). However, the case will be dismissed without

prejudice to Scott challenging her prosecution in state court, seeking the return of her property in

state court, and/or filing a federal habeas petition in the Middle District of Pennsylvania after

exhausting state remedies.

An appropriate Order follows.

BY THE COURT:

/s/ Eduardo C. Robreno

EDUARDO C. ROBRENO, J.