SERRANO v. WITTIK

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ANTONIO SERRANO : CIVIL ACTION

:

v. :

:

CHRISTOPHER R. WITTIK, :

CATASQUQUA POLICE DEPT., JAMES :

T. ANTHONY, Judge for Lehigh County :

Jail, SIX LEHIGH COUNTY SHERIFFS, :

LEHIGH COUNTY COURTHOUSE and :

MATTHEW SEAN FAULK, D.A., :

Lehigh Co. DA’s Office : NO. 20-4583

MEMORANDUM

Savage, J. February 5, 2021

Antonio Serrano, an inmate at SCI-Camp Hill, brings this action pursuant to 42

U.S.C. § 1983. He has named as defendants Christopher R. Wittik, a police detective in

the Catasauqua1 Police Department;2 James T. Anthony, a Judge of the Court of

Common Pleas of Lehigh County;3 six “Lehigh County Sheriffs”; the Lehigh County

Courthouse; 4 and Matthew Sean Faulk, a Lehigh County Assistant District Attorney.

1 Incorrectly entered on the docket as “Catasququa”.

2 The Catasauqua Police Department appears on the docket as a separate defendant. Apparently, Serrano

listed it as a means of identifying Wittik’s employer. Therefore, we shall order it stricken as a defendant.

Even if Serrano had intended to sue the department, it would be dismissed as a defendant because a police

department, as a mere sub-unit of the municipality, may not be liable under 42 U.S.C. § 1983. Martin v.

Red Lion Police Dept., 146 F. App’x. 558, 562 n.3 (3d Cir. 2005) (per curiam) (stating that police department

is not a proper defendant in an action pursuant to 42 U.S.C. § 1983 because it is a sub-division of its

municipality); Bonenberger v. Plymouth Twp., 132 F.3d 20, 25 (3d Cir. 1997) (“As in past cases, we treat

the municipality and its police department as a single entity for purposes of section 1983 liability” citing

Colburn v. Upper Darby Township, 838 F.2d 663, 671 n.7 (3d Cir.1988)); Hadesty v. Rush Twp. Police

Dep’t, Civ. A. No. 14-2319, 2016 WL 1039063, at *9 n.4 (M.D. Pa. Mar. 15, 2016).

3 Sometimes referred to as “Anthony T. James” in the complaint.

4 The Lehigh County Courthouse has also been named as a separate defendant on the docket. Here,

too, it appears that Serrano listed it for the purpose of identifying the place of employment of the Six Lehigh

County Sheriffs and did not intend it to be a named defendant. In any event, the Lehigh County Courthouse

is not a person for purposes of § 1983 liability. See Elansari v. United States, Civ. A. No. 15-01461, 2016

WL 4415012, at *5 n.9 (M.D. Pa. July 11, 2016); Devenshire v. Kwidis, Civ. A. No. 15-1026, 2016 WL

Serrano seeks leave to proceed in forma pauperis. Because it appears he is not

capable of paying the fees to commence this civil action, we shall grant him leave to

proceed in forma pauperis. For the following reasons, we shall dismiss his Complaint

pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

Factual Allegations

Serrano asserts that on January 14, 2019, he was taken from a Lehigh County

courtroom and forced to submit to DNA swab tests by Wittik and six Lehigh County

Sheriffs.5 He asserts that these acts violated his rights under the Fourth and Fourteenth

Amendments.6 Serrano alleges that he was “found guilty of [the charges in his criminal

case] only because the force of DNA was illegally conducted by these individuals.”7 He

also alleges that he now faces an “illegal” sentence “because these named individuals

took it upon themselves to commit an injustice.”8 As relief, Serrano seeks a court-

appointed attorney to “properly argue” his case, vacation of his sentence, a new trial,

and/or a dismissal of all charges.9

Publicly available records show that Wittik arrested Serrano on July 6, 2018 on

charges of forcible rape, aggravated indecent assault without consent, making terroristic

4032881, at *3 (W.D. Pa. June 28, 2016); Robinson v. Mercer Cty. Courthouse, Civ. A. No. 12-4114, 2012

WL 4662967, at *3 (D.N.J. Oct. 1, 2012); Bucano v. Sibum, Civ. A. No. 12-0606, 2012 WL 2395553, at *11

(M.D. Pa. Apr. 23, 2012); Brinton v. Delaware Cty. Adult Paroles/Probation Dep’t, Civ. A. No. 88-3656, 1988

WL 99681, at *1 (E.D. Pa. Sept. 22, 1988). Hence, we shall order it stricken from the docket.

5 Compl. at 4 (Doc. No. 2). We adopt the pagination supplied by the Court’s CM/ECF docketing system.

6 Id.

7 Id.

8 Id.

9 Id.

threats, and indecent assault.10 The criminal docket reflects that on January 4, 2019,

Assistant District Attorney Faulk filed a motion to compel DNA extraction. On January

14, 2019 Judge Anthony granted the motion at a hearing at which Serrano was

represented by counsel.11

Six months later, on June 26, 2019, a jury found Serrano guilty on all charges.12

On July 20, 2020, he was sentenced.13 Serrano’s post-verdict motions were denied on

August 20 and September 11, 2020.

STANDARD OF REVIEW

In determining whether a complaint fails to state a claim under § 1915(e), a court

applies the same standard applicable to motions to dismiss under Federal Rule of Civil

Procedure 12(b)(6). Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999). The

complaint must contain sufficient facts which, accepted as true, show that the plaintiff is

entitled to relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted).

Conclusory allegations do not suffice. Id. As Serrano is proceeding pro se, the Court

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

DISCUSSION

Claim Against Judge James T. Anthony

Judge Anthony is protected by absolute judicial immunity. His acts were performed

in the course of judicial proceedings and in his judicial capacity.

10 See Commonwealth v. Serrano, CP-39-CR-0003675-2018 (C.P. Lehigh).

11 Id.

12 Id.

13 Id.

Judges enjoy absolute immunity for judicial acts performed in cases over which

they have jurisdiction. Gallas, v. Sup. Ct. of Pa., 211 F.3d 760, 768-69 (3d Cir. 2000);

Feingold v. Hill, 521 A.2d 33, 36 (Pa. Super. Ct. 1987). Even legal or factual error,

personal malice, or the performance of an act in excess of jurisdiction will not remove the

cloak of judicial immunity. Gallas, 211 F.3d at 769; Feingold, 521 A.2d at 36.

The protection of judicial immunity is lost only when a judge performs a non-judicial

act or acts in “complete absence of all jurisdiction.” Gallas, 211 F.3d at 768-69 (citations

omitted); Feingold, 521 A.2d at 36. Evaluating whether a judge has acted in complete

absence of all jurisdiction focuses on the nature of the act and the expectations of the

parties. Stump v. Sparkman, 435 U.S. 349, 362 (1978). The Stump Court discussed the

distinction between the lack of, rather than excess, jurisdiction with the following

examples:

if a probate judge, with jurisdiction over only wills and

estates, should try a criminal case, he would be acting

in the clear absence of jurisdiction and would not be

immune from liability for his action; on the other hand,

if a judge of a criminal court should convict a defendant

of a nonexistent crime, he would merely be acting in

excess of his jurisdiction and would be immune.

Id. at 357 n.7 (citing Bradley v. Fisher, 80 U.S. 335, 352 (1871)). Judicial acts are

distinguished from mere administrative acts. Gallas, 211 F.3d at 769-70; see also

Forrester v. White, 484 U.S. 219, 229 (1988) (holding that a judge was acting in an

administrative capacity, rather than his judicial capacity, in terminating a subordinate court

employee).

Serrano alleges that Judge Anthony violated his rights when he ordered him to

submit to a DNA swab. This allegation describes judicial acts performed during court

proceedings. Therefore, because Judge Anthony is absolutely immune from suit, we shall

dismiss the complaint against him.

Claim Against Defendant Faulk

Prosecutors enjoy absolute immunity from liability for actions taken in judicial

proceedings. Odd v. Malone, 538 F.3d 202, 208 (3d Cir. 2008) (citations omitted) (citing

Giuffre v. Bissell, 31 F.3d 1241, 1251 (3d Cir. 1994)). This means activities conducted in

court, such as presenting evidence or legal arguments. Giuffre, 31 F.3d at 1251 (quoting

Kulwicki v. Dawson, 969 F.2d 1454, 1463 (3d Cir. 1992) (citing Imbler v. Pachtman, 424

U.S. 409, 430 (1976))). The protection extends to activities outside the courtroom that

are “intimately associated with the judicial phase of the criminal process.” Van de Kamp

v. Goldstein, 555 U.S. 335, 341 (2009) (quoting Imbler, 424 U.S. at 430). Thus, absolute

immunity attaches to the prosecutor’s decision to initiate a prosecution. Id. (citing Imbler,

424 U.S. at 424).

Administrative or investigative actions are only protected by qualified immunity,

Van de Kamp, 555 U.S. at 342 (citing Imbler, 424 U.S. at 431, n.33), unless they relate

directly to the conduct of a criminal trial. Schneyder v. Smith, 653 F.3d 313, 334 (3d Cir.

2011). A prosecutor’s behavior that is totally unrelated to the prosecutorial role or

exceeds the scope of his authority is not protected by absolute immunity. Kulwicki, 969

F.2d at 1463-64 (citing Rose v. Bartle, 871 F.2d 331, 346 (3d Cir. 1989)).

In determining whether the prosecutor’s activity is covered by absolute immunity,

we take into account what function he was performing. Van de Kamp, 555 U.S. at 342

(citation omitted). This inquiry requires us to analyze the conduct forming the basis for

the plaintiff’s cause of action. Schneyder, 653 F.3d at 332 (citation omitted). The test is

whether the actions clearly serve the prosecutorial function. If they do, the prosecutor is

entitled to absolute immunity.

Faulk enjoys absolute immunity from any claims arising from his decision to

prosecute Serrano. Van de Kamp, 555 U.S. at 341; see also Giuffre, 31 F.3d at 1252

(“The decision to initiate a prosecution is at the core of a prosecutor’s role.”) (quoting

Kulwicki, 969 F.2d at 1463-64) (citation omitted). The decision to bring charges and to

prosecute the case in court, including presentation of the evidence and witnesses, are

clearly within the prosecutorial function. See Kalina v. Fletcher, 522 U.S. 118, 125-26

(1997); Imbler, 424 U.S. at 431. So does the presentation of a motion in furtherance of

the prosecution fall within the prosecutorial function. Thus, the claim against Faulk will

be dismissed.

Claims Against All Defendants

Under Heck v. Humphrey, 512 U.S. 477 (1994), a plaintiff is barred from bringing

a claim pursuant to 42 U.S.C. § 1983 if a judgment in his favor would demonstrate or

imply the invalidity of a criminal conviction. Id. at 486-87. See also, Torres v. Fauver,

292 F.3d 141, 147 (3d Cir. 2002). The purpose of the Heck doctrine is to promote the

“finality and consistency” of criminal investigations by avoiding “parallel litigation” and “the

creation of two conflicting resolutions arising out of the same or identical transaction.”

Heck, 512 U.S. at 484-85 (citations omitted).

To determine whether a claim is barred by Heck, we engage in a two-part inquiry.

We first determine whether the plaintiff’s conviction has been overturned or invalidated.

Id. at 486-87. If so, the inquiry ends and the claim is not barred. If not, we ask “whether

a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction

or sentence.” Id. at 487. If it would, the claim is barred.

Because Serrano has not alleged that his conviction has been reversed or

invalidated, we must determine whether success on his § 1983 claims would implicitly

invalidate his convictions. As we have stated, Serrano cannot establish that the criminal

proceeding ended in his favor. Estate of Smith v. Marasco, 318 F.3d 497, 521 (3d Cir.

2002).

Serrano is seeking the reversal of his conviction and a new trial. For a federal

court to grant him relief would require it to invalidate the state court conviction. It cannot

do so. See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). Therefore, we shall dismiss

Serrano’s claims against all defendants.14

14 “[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[.]”) (footnote and citation omitted).