HERDER v. MINEHART

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOSHUA HERDER, :

Plaintiff, :

:

v. : CIVIL ACTION NO. 23-CV-4082

:

JUDGE MINEHART, et al., :

Defendants. :

MEMORANDUM

YOUNGE, J. DECEMBER 1, 2023

Plaintiff Joshua Herder, a prisoner currently confined at SCI Waymart, filed a Complaint

pursuant to 42 U.S.C. § 1983, alleging that his due process rights in his state law criminal

proceeding were violated when he was convicted without being formally arraigned. For the

following reasons, the Court will grant Herder leave to proceed in forma pauperis and dismiss

his Complaint in part with prejudice and in part without prejudice.

I. FACTUAL ALLEGATIONS1

Herder names two Defendants in his Complaint: (1) Judge Minehart of the Philadelphia

Court of Common Pleas, who sentenced Herder in his state criminal case; and (2) “Warden Wahl

SCI Waymart.”2 (See Compl. at 1-2.) The allegations in Herder’s Complaint are disjointed,

1 The facts set forth in the Memorandum are taken from Herder’s Complaint and other

public records of which this Court may take judicial notice. See Buck v. Hampton Twp. Sch

Dist., 452 F.3d 256, 260 (3d Cir. 2006.) The Court adopts the pagination supplied by the

CM/ECF docketing system.

2 This is Herder’s second Complaint against these two Defendants. See Herder v. Wahl,

No. 23-998 (E.D. Pa.), at ECF No. 1. In the prior case, Herder alleged that he was wrongly

convicted of first-degree murder and that his speedy trial rights were violated. See id. In a May

3, 2023 Memorandum and Order, the Court dismissed Herder’s Complaint with prejudice

because the only relief he sought was release from prison, which “is not cognizable in a civil

rights action.” Herder v. Wahl, No. 23-0998, 2023 WL 3229936, at *2 (E.D. Pa. May 3, 2023).

difficult to understand, and at times, indecipherable. He appears to assert a § 1983 claim based

on a due process violation, alleging that he was not arraigned in his state court criminal matter.3

(Id. at 3.) Herder also alleges “day & night repeated rap and reaccuring [sic].” 4 (Id. at 5.) As

injuries, Herder alleges “bleeding butthole” and “throwing up from date rap[e] drugs.” (Id.) For

relief, he requests “to be released ASAP”5 and also states “pain and suffering,” which he alleges

he “will settle out of court.”6 (Id.)

3 Herder also checks the box on his form complaint indicating that he intends to assert a

claim under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388

(1971) (“Bivens”). Bivens provides a remedy for certain constitutional violations committed by

federal actors. However, no federal Defendants are named in the Complaint and there are no

allegations suggesting that any conduct was committed by a federal actor.

4 It is unclear whether Herder is alleging a sexual assault and if he is, by whom, when it

occurred, and whether it occurred while he was incarcerated. The Court will liberally construe

the allegations and infer that Herder also intends to assert an Eighth Amendment claim for sexual

abuse. See infra at § III.C.

5 Herder’s request to be released from prison must be dismissed. “[W]hen a state prisoner

is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a

determination that he is entitled to immediate release or a speedier release from that

imprisonment, his sole federal remedy is a writ of habeas corpus.” Preiser v. Rodriguez, 411

U.S. 475, 500 (1973); see Leamer v. Fauver, 288 F.3d 532, 544 (3d Cir. 2002) (explaining that

“whether Preiser and its progeny require a claim to be brought under habeas” is determined by

whether “the claim would fall within the ‘core of habeas’ and require sooner release if resolved

in the plaintiff’s favor”). As set forth below, allegations that Defendants violated his due process

rights by failing to provide an arraignment hearing cannot form the basis of an underlying

constitutional violation under § 1983. See infra at § III.B. Accordingly, Herder’s request for

release from prison is not cognizable in a civil rights action such as this one. Rather, if he seeks

to challenge his state court conviction in federal court, he must pursue his claims in a habeas

petition. Public records reflect that on June 14, 2022, Herder filed a federal habeas corpus

petition alleging violations of his due process as well as speedy trial rights. See Herder v.

Warden of SCI-Waymart, Civ. A. No. 22-2365 (E.D. Pa.). The habeas petition is pending in the

United States District Court for the Eastern District of Pennsylvania and counsel has been

appointed to represent Herder in that matter. (See id.) Dismissal of § 1983 claims in this case

does “not constitute a bar to any collateral attacks by [Herder] against his state proceedings.”

See Rushing v. Pennsylvania, 637 F. App’x 55, 58 n.4 (3d Cir. 2016) (per curiam).

6 Although it is not entirely clear, the Court understands Herder’s request for pain and

suffering to be a request for money damages. Herder also mentions “religious pers[ecution]” in

II. STANDARD OF REVIEW

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

is incapable of paying the fees to commence this civil action.7 Accordingly, 28 U.S.C.

§ 1915(e)(2)(B)(ii) applies, which requires the Court to dismiss the Complaint if it fails to state a

claim. 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); Shorter v. United States, 12 F.4th 366, 374 (3d Cir. 2021) (“At this early

stage of the litigation, [the Court will] accept the facts alleged in [the pro se] complaint as true,

draw[] all reasonable inferences in [the plaintiff’s] favor, and ask only whether [that] complaint,

liberally construed, . . . contains facts sufficient to state a plausible [] claim.” (internal quotations

omitted)). Conclusory allegations do not suffice. Iqbal, 556 U.S. at 678. Because Herder is

proceeding pro se, the Court construes his allegations liberally. Vogt v. Wetzel, 8 F.4th 182, 185

(3d Cir. 2021) (citing Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244-45 (3d Cir. 2013)).

response to a question in his Complaint about his prisoner status. (See Compl. at 4.) However,

Herder does not include any facts to support a plausible religious discrimination claim.

In addition, Herder attaches to his Complaint an August 11, 2010 letter purportedly from

him to the Defender Association of Philadelphia. (See Compl. at 12-15.) The letter appears to

be written in a different handwriting and relates to requests for records and mental health

evaluations. (See id.) It is unclear why Herder included the attachment. In any event, the

attachment fails to allege a plausible claim against the named Defendants.

7 As Herder is a prisoner, he will be obligated to pay the filing fee in installments

pursuant to 28 U.S.C. § 1915(b).

III. DISCUSSION

The Court understands Herder to be asserting a due process claim based on allegations

that he was not arraigned in his state court criminal case. Liberally construing the Complaint, the

Court also understands Herder to assert a sexual abuse claim under the Eighth Amendment. The

vehicle by which federal constitutional claims may be brought in federal court is 42 U.S.C. §

1983. “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).

In a § 1983 action, the personal involvement of each defendant in the alleged constitutional

violation is a required element, and, therefore, a plaintiff must allege how each defendant was

involved in the events and occurrences giving rise to the claims. See Rode v. Dellarciprete, 845

F.2d 1195, 1207 (3d Cir. 1998).

A. Claims against Judge Minehart

Herder’s claims against Judge Minehart must be dismissed because Judge Minehart is

entitled to judicial immunity. Judges are entitled to absolute immunity from civil rights claims

that are based on acts or omissions taken in their judicial capacity, so long as they do not act in

the complete absence of all jurisdiction. See Stump v. Sparkman, 435 U.S. 349, 355-56 (1978);

Harvey v. Loftus, 505 F. App’x 87, 90 (3d Cir. 2012) (per curiam); Azubuko v. Royal, 443 F.3d

302, 303-04 (3d Cir. 2006) (per curiam). An act is taken in a judge’s judicial capacity if it is “a

function normally performed by a judge.” Gallas v. Supreme Ct. of Pa., 211 F.3d 760, 768 (3d

Cir. 2000). Moreover, “[g]enerally . . . ‘where a court has some subject matter jurisdiction, there

is sufficient jurisdiction for immunity purposes.’” Figueroa v. Blackburn, 208 F.3d 435, 443-44

(3d Cir. 2000) (quoting Barnes v. Winchell, 105 F.3d 1111, 1122 (6th Cir. 1997)). The state

court docket reveals that Judge Minehart presided over Herder’s criminal trial. See

Commonwealth v. Herder, Nos. CP-51-CR-0007152-2008, CP-51-CR-0007157-2008 (C.P.

Philadelphia). Since Herder’s claims against Judge Minehart appear to be based on acts he took

in his judicial capacity in a case over which he clearly had jurisdiction to act, Judge Minehart is

entitled to absolute immunity for those claims.

B. Due Process Claim

The Court will next consider Herder’s due process claim against the remaining

Defendant, Wahl. Although it is not entirely clear, Herder appears to allege that he was not

arraigned in his state court criminal matter and that the absence of any arraignment violated his

due process rights. By listing “pain and suffering” as a form of relief sought in his Complaint,

Herder appears to seek money damages in addition to his requested release from prison. When a

plaintiff seeks damages in a civil rights lawsuit, “the district court must consider whether a

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

sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that

the conviction or sentence has already been invalidated.” Heck v. Humphrey, 512 U.S. 477, 487

(1994). Commonly referred to as the “Heck bar,” see Wallace v. Kato, 549 U.S. 384, 385

(2007), this rule prevents plaintiffs from bringing claims, the success of which would render a

sentence or conviction invalid, unless the plaintiff can show “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, 512 U.S. at 486-87.

A due process claim based on defects with respect to the state-court arraignment process

is barred by Heck because it necessarily implies the invalidity of the associated conviction or

sentence.8 See Byrd v. Finley, No. 19-6879, 2023 WL 1420445, at *8-10 (D.N.J. Jan. 31, 2023)

(dismissing on screening a § 1983 due process claim based on delayed arraignment because the

claim is barred by Heck); Cavallero v. Idaho, No. 20-117, 2020 WL 4450952, at *2 (D. Idaho

Aug. 3, 2020) (“[W]hen a plaintiff asserts in a civil rights action that a defendant’s actions in an

arraignment resulted in an unlawful conviction, a § 1983 suit is not the proper vehicle through

which to mount what is essentially a collateral challenge to the validity of his federal criminal

conviction, because of the Heck v. Humphrey bar.” (citations and internal quotations omitted)).

Nowhere in the Complaint does Herder allege that his convictions were invalidated. Consistent

with his Complaint, Herder’s public criminal docket reflects that the convictions are still valid.

As noted above, Herder’s federal habeas petition with respect to this conviction is pending.

Accordingly, because Herder’s claim challenging part of his state criminal pretrial process (i.e.,

the arraignment) that led to his criminal convictions imply the invalidity of those intact

convictions, they are not cognizable in a § 1983 action. See Garrett v. Murphy, 17 F.4th 419,

429 (3d Cir. 2021) (“Heck is clear that the favorable-termination requirement is a necessary

element of the claim for relief under § 1983.”). Accordingly, the Court will dismiss the due

process claim without prejudice to Herder refiling it in a new lawsuit only in the event his

conviction is ultimately invalidated.9

8 Herder also mentions in his Complaint that a telephone call he made to the police was

never played during his criminal trial. (See Compl. at 4.) Although Herder provides no

additional allegations about this telephone call, any claim based on it would nevertheless be

dismissed. This is because § 1983 claims based on defects with respect to underlying criminal

trials are also barred by Heck. See O’Brien v. United States Fed. Gov’t, 763 F. App’x 157, 159

(3d Cir. 2019) (affirming dismissal of Bivens claims related to “various constitutional defects

related to [the plaintiff’s] trial” as barred by Heck).

9 Even if Herder’s due process claim was not barred by Heck, it would nevertheless be

dismissed against Defendant Wahl. Herder has not alleged how Wahl, who is an alleged high-

C. Sexual Abuse Claim

In his Complaint, Herder alleges “repeated rap,” which the Court understands to be an

assertion that Herder was raped or otherwise sexually assaulted. To the extent that Herder

intended to assert a claim for sexual abuse, he has not alleged a plausible claim. Sexual abuse

and harassment violate an inmate’s rights under the Eighth Amendment, which prohibits cruel

and unusual punishment. Ricks v. Shover, 891 F.3d 468, 473 (3d Cir. 2018). Claims for sexual

abuse and harassment are evaluated similarly to excessive force claims in that the prisoner must

allege facts plausibly establishing both objective and subjective components. Id. at 475 (stating

that the misconduct “must be objectively, sufficiently intolerable and cruel, capable of causing

harm, and the official must have a culpable state of mind”). Regarding the subjective

component, the Court “consider[s] whether the official had a legitimate penological purpose or if

he or she acted ‘maliciously and sadistically for the very purpose of causing harm.’” Id. (quoting

Whitley v. Albers, 475 U.S. 312, 320-21 (1986)). Regarding the objective prong, the Court

considers whether the action is “repugnant to the conscience of mankind” or whether it is

“sufficiently serious or severe.” Id. at 475-76 (citations omitted).

Herder has not provided any facts about the alleged sexual abuse, including when it

occurred, by whom, and whether it occurred while he was incarcerated. He has therefore not

raised a plausible inference as to both the objective and subjective components of a sexual abuse

claim. Moreover, Herder has not alleged how Wahl or anyone else was personally involved in

the alleged abuse. See Rode, 845 F.2d at 1207; see also Dooley v. Wetzel, 957 F.3d 366, 374 (3d

level official at SCI Waymart, was in any way personally involved in Herder’s pretrial process

associated with his state court criminal case. See Rode, 845 F.2d at 1207.

Cir. 2020) (“Personal involvement requires particular ‘allegations of personal direction or of

actual knowledge and acquiescence.’” (quoting Rode, 845 F.2d at 1207)).

To the extent that Wahl is named as a Defendant simply due to his high-ranking position

at SCI Waymart, this is also not sufficient to state a plausible claim. See Jutrowski v. Twp. of

Riverdale, 904 F.3d 280, 290 (3d Cir. 2018) (“Each Government official, his or her title

notwithstanding, is only liable for his or her own misconduct.”) (quoting Iqbal, 556 U.S. at 677)

(emphasis in original). Rather, “[s]uits against high-level government officials must satisfy the

general requirements for supervisory liability.” Wharton v. Danberg, 854 F.3d 234, 243 (3d Cir.

2017). There are “two general ways in which a supervisor-defendant may be liable for

unconstitutional acts undertaken by subordinates.” Barkes v. First Corr. Med., Inc., 766 F.3d

307, 316 (3d Cir. 2014), reversed on other grounds by Taylor v. Barkes, 575 U.S. 822 (2015).

First, a supervisor may be liable if he or she “‘with deliberate indifference to the consequences,

established and maintained a policy, practice or custom which directly caused [the] constitutional

harm.” Id. (quoting A.M. ex rel. J.M.K. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586

(3d Cir. 2004) (alteration in original)). “Second, a supervisor may be personally liable under §

1983 if he or she participated in violating the plaintiff’s rights, directed others to violate them, or,

as the person in charge, had knowledge of and acquiesced in the subordinate’s unconstitutional

conduct.” Id. Herder’s factual allegations do not raise a plausible inference of supervisor

liability against Wahl. Accordingly, Herder’s Eighth Amendment claim against Wahl will be

dismissed. However, given the liberal construction afforded to pro se pleadings, Herder will be

permitted to file an amended complaint to attempt to cure the defects the Court has noted as to

his Eighth Amendment claims only.

IV. CONCLUSION

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

and dismiss his Complaint in part with prejudice and in part without prejudice. Herder’s claims

against Judge Minehart will be dismissed with prejudice. His claim for release from prison will

be dismissed without prejudice to Herder asserting the claim in his pending habeas corpus action.

Herder’s Heck-barred due process claims will be dismissed without prejudice to Herder filing a

new civil rights complaint only in the event his convictions are reversed, vacated, or otherwise

invalidated. See Curry v. Yachera, 835 F.3d 373, 379 (3d Cir. 2016) (Heck-barred claims must

be dismissed without prejudice). Finally, Herder’s Eighth Amendment sexual abuse claims are

dismissed without prejudice. The Court will grant Herder leave to file an amended complaint in

the event he can cure the defects the Court has identified as to his Eighth Amendment claims.

An appropriate Order follows, which provides further instruction as to amendment.

BY THE COURT:

/s/ John Milton Younge

JOHN MILTON YOUNGE, J.