CRESPO v. HIGGINS

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

JOHNSTOWN

BARRY LEE CRESPO, )

)

Plaintiff, ) 3:20-CV-00141-CRE

)

vs. )

)

WILLIAM JOSEPH HIGGINS, DISTRICT )

)

ATTORNEY OF BEDFORD COUNTY, PA;

)

)

Defendant,

)

MEMORANDUM OPINION1

Cynthia Reed Eddy, Chief United States Magistrate Judge.

This prisoner civil rights action was initiated in this court on July 21, 2020, by pro se

Plaintiff Barry Lee Crespo, who is incarcerated at SCI-Mahanoy. In his complaint, Plaintiff has

asserted various claims pursuant to 42 U.S.C. § 1983, the Fourteenth Amendment, and

Pennsylvania state law against Defendant William Joseph Higgins, who was the District Attorney

of Bedford County, Pennsylvania. See Compl. (ECF No. 1). This Court has subject matter

jurisdiction over the controversy pursuant to 28 U.S.C. § 1331, and supplemental jurisdiction over

the state law claims pursuant to 28 U.S.C. § 1367.

Presently before the Court is a motion by Defendant to dismiss the Complaint pursuant to

Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be

granted. (ECF Nos. 8, 9). For the reasons that follow, Defendant’s motion to dismiss is granted

in part and denied in part.

1 In accordance with the provisions of 28 U.S.C. § 636(c)(1), the parties have voluntarily consented

to have a United States Magistrate Judge conduct proceedings in this case, including trial and the

entry of a final judgment. (ECF Nos. 5, 23).

I. BACKGROUND

By way of background, on March 13, 2009, Plaintiff was convicted by a jury of numerous

charges related to Plaintiff’s sexual assault of a minor. Plaintiff was sentenced to an aggregate

term of 20 to 40 years of imprisonment.2 Defendant was the District Attorney who prosecuted

Plaintiff’s case.

According to Plaintiff, while Defendant was prosecuting Plaintiff, Defendant himself was

“under investigation” for “rape.” Compl. (ECF No. 1) at ¶ 5. Plaintiff further contends that during

the trial, Defendant “presented coerced, tainted and false testimony from witnesses, who, he

schooled and personally directed prior to and at trial violating Plaintiff’s due process to a fair trial

rights and purported [sic] a fraud upon the court.” Id. at ¶ 6. Specifically, Plaintiff avers that

Defendant attempted to “take the spotlight off his own ongoing sex crime investigation” by

pursuing false charges against Plaintiff. Id. at ¶ 7. In support of his claims, Plaintiff attached to

the Complaint a series of newspaper articles detailing charges filed on April 4, 2018, by the

Commonwealth of Pennsylvania against Defendant for “intimidating witnesses; false misleading

testimony; concealing and destroying evidence and several others.” Id. at ¶ 10; see also Exhibits

B, C (ECF Nos. 1-2, 1-3). Plaintiff sets forth claims against Defendant for “violations of his civil

rights under the Fourteenth Amendment due process; prosecutorial misconduct and fraud upon the

2 Plaintiff’s judgment of sentence was affirmed on direct appeal, and he did not file a petition for

allowance of appeal to the Pennsylvania Supreme Court. See Commonwealth v. Crespo, 6 A.3d

574 (Pa. Super. 2010). Additionally, Plaintiff has at least two times sought and been denied relief

pursuant to the Post Conviction Relief Act (“PCRA”). See Commonwealth v. Crespo, 83 A.3d 814

(Pa. Super. 2013) (affirming the denial of PCRA relief on Crespo’s first, timely-filed PCRA

petition); Commonwealth v. Crespo, 122 A.3d 1144 (Pa. Super. 2015) (affirming the denial of

PCRA relief on Crespo’s second, untimely-filed PCRA petition). Furthermore, in consideration

of Plaintiff’s petition for writ of habeas corpus, this Court filed a report and recommendation

recommending that Plaintiff’s petition be dismissed, and the District Judge adopted that report and

recommendation. See Crespo v. Higgins, 2016 WL 8377537 (W.D. Pa. 2016), report and

recommendation adopted, 2017 WL 819495 (W.D. Pa. 2017).

court.” Id. at 4.

On August 26, 2020, Defendant filed a motion to dismiss Plaintiff’s Complaint pursuant to

Federal Rule of Civil Procedure 12(b)(6) for failing to state a claim upon which relief can be

granted and brief in support thereof. (ECF Nos. 8, 9). Plaintiff eventually filed a response,3 and

Defendant filed a reply. (ECF Nos. 20, 24). The motion is now ripe for disposition.

II. STANDARD OF REVIEW

To survive dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6), “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) (quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007)). The reviewing court must “determine whether, under any reasonable

reading of the complaint, the plaintiff may be entitled to relief.” Phillips v. Cnty. of Allegheny, 515

F.3d 224, 233 (3d Cir. 2008). Dismissal under Federal Rule of Civil Procedure 12(b)(6) is proper

where the factual allegations of the complaint conceivably fail to raise, directly or inferentially,

the material elements necessary to obtain relief under a legal theory of recovery. Twombly, 550

U.S. at 561. Thus, “[t]hreadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (2009) (citing Twombly, 550 U.S.

at 555). The factual and legal elements of a claim should be separated, with the court accepting

all well-pleaded facts as true and disregarding all legal conclusions. Santiago v. Warminster Twp.,

3 Plaintiff’s response to the motion to dismiss was due originally on October 9, 2020. (ECF No.

10). However, due to issues with Defendant’s ability to serve the motion to dismiss on Plaintiff,

the time for Plaintiff’s response was extended to October 23, 2020. (ECF No. 12). This Court then

permitted additional extensions of time, and Plaintiff filed a document entitled “Addendum” on

March 9, 2021. (ECF No. 20). That Addendum included information that was responsive in nature

to Defendant’s motion to dismiss, as well as an affidavit by an individual who claims he was

present to testify as a witness at Plaintiff’s criminal trial in 2009, and Defendant spoke to that

individual during the course of the trial. See Addendum (ECF No. 20); General Affidavit (ECF

No. 20-1).

629 F.3d 121, 130-31 (3d Cir. 2010). Under this standard, civil complaints “must contain more

than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Fowler v. UPMC

Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). A court in making this determination must ask

“not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence

to support the claim.” Twombly, 550 U.S. at 583 (quoting Scheuer v. Rhoads, 416 U.S. 232, 236

(1974) (internal quotations omitted)).

In deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a

court may take into consideration “the allegations contained in the complaint, exhibits attached to

the complaint and matters of public record” as well as “undisputedly authentic document[s] that a

defendant attaches as an exhibit to a motion to dismiss if the plaintiff’s claims are based on the

document.” Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d

Cir. 1993).

Furthermore, a pro se pleading is held to a less stringent standard than more formal

pleadings drafted by lawyers. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404

U.S. 519, 520 (1972). As such, a pro se complaint pursuant to 42 U.S.C. § 1983 must be construed

liberally, Hunterson v. DiSabato, 308 F.3d 236, 243 (3d Cir. 2002), so “as to do substantial

justice.” Alston v. Parker, 363 F.3d 229, 234 (3d Cir. 2004) (citations omitted). In a Section 1983

action, the court must “apply the applicable law, irrespective of whether the pro se litigant has

mentioned it by name.” Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002). Notwithstanding this

liberality, pro se litigants are not relieved of their obligation to allege sufficient facts to support a

cognizable legal claim. See, e.g., Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir.

2002); Riddle v. Mondragon, 83 F.3d 1197, 2102 (10th Cir. 1996).

Furthermore, “when a complaint is subject to dismissal under Rule 12(b)(6), the court

should permit a curative amendment.” Thompson v. Police Dep’t of Philadelphia, 2011 WL

4835831, at *2 (E.D. Pa. Oct. 12, 2011). “However, we need not provide a plaintiff with leave to

amend if amendment would be inequitable or futile.” Id. “Where a claim is frivolous, amendment

is necessarily futile and, thus, leave to amend is not warranted. A claim is frivolous when it lacks

an arguable basis in either law or in fact.” Id. (internal citation and quotation marks omitted).

III. DISCUSSION

A. Prosecutorial Immunity

In his motion to dismiss, Defendant sets forth several arguments, including an argument

that the complaint should be dismissed because Defendant is entitled to absolute prosecutorial

immunity. Def.’s Br. (ECF No. 9) at 8-12.

Prosecutors are afforded varying levels of official immunity depending

upon the nature of the prosecutor’s conduct. A prosecutor enjoys absolute immunity

for those actions performed in a “quasi-judicial” role, which includes in-court

activity as well as selected out-of-court behavior intimately associated with the

judicial phase of the criminal process. By comparison, a prosecutor is entitled to

qualified immunity for such actions taken in an investigative or administrative

capacity.

Zerby v. Waltz, 2017 WL 386616, at *5 (M.D. Pa. 2017) (internal citations and quotation marks

omitted).

In determining whether immunity applies to a prosecutor’s action, “in a motion to dismiss,

it is the defendant’s conduct as alleged in the complaint that is scrutinized.” Fogle v. Sokol, 957

F.3d 148, 161 (3d Cir. 2020) (internal quotation marks omitted). “[T]o earn the protections of

absolute immunity, a defendant must show that the conduct triggering absolute immunity clearly

appear[s] on the face of the complaint.” Id. (internal quotation marks omitted). “The prosecutor

bears the heavy burden of demonstrating entitlement to absolute immunity.” Brady v. Office of the

Cty. Prosecutor, Cty. of Bergen, 2020 WL 5088634, at *5 (D.N.J. Aug. 28, 2020).

Plaintiff’s allegations against Defendant include actions taken by Defendant during the

course of trial, including presenting “coerced, tainted and false testimony from witnesses.” Compl.

(ECF No. 1) at ¶ 6. Because presenting witnesses at trial is “intimately associated with the judicial

phase of the criminal process,” Defendant is entitled to absolute immunity for this conduct. Fogle,

957 F.3d at 159-60.

However, Plaintiff also asserts allegations against Defendant for actions that occurred prior

to Plaintiff’s trial. According to Plaintiff, Defendant presented at trial “false testimony from

witnesses, who he schooled and personally directed prior to” trial. Compl. (ECF No. 1) at ¶ 6.

Additionally, Plaintiff claims he was prosecuted by Defendant “in an effort to take the spotlight

off [Defendant’s] own ongoing sex crime investigation.” Id. at ¶ 7. Here, it is not clear whether

Defendant’s actions occurred prior to a decision to bring charges against Plaintiff or after that

decision was made. Thus, at this stage of proceedings, viewing the allegations in the light most

favorable to Plaintiff, this Court cannot conclude that absolute prosecutorial immunity should be

afforded to Defendant.

B. Fourteenth Amendment Due Process

According to Plaintiff, Defendant violated Plaintiff’s Fourteenth Amendment rights by

coercing the victim in Plaintiff’s case to provide false testimony at trial in order to “take the

spotlight off” Defendant’s “ongoing sex crime investigation” and to give the “alleged victim in

Plaintiff’s case an opportunity to get revenge against [Plaintiff].” Compl. (ECF No. 1) at ¶ 7.

Defendant argues that this claim should be dismissed because Plaintiff has set forth only bald

allegations that do not rise to the level of a due process violation. Def.’s Br. (ECF No. 9) at 5-7.

In Halsey v. Pfeiffer, 750 F.3d 273 (3d Cir. 2014), the Third Circuit held that “if a defendant

has been convicted at a trial at which the prosecution has used fabricated evidence, the defendant

has a stand-alone claim under section 1983 based on the Fourteenth Amendment if there is a

reasonable likelihood that, without the use of that evidence, the defendant would not have been

convicted.” Id. at 294. Instantly, viewing the allegations in the Complaint in the light most

favorable to Plaintiff, Plaintiff claims that Defendant essentially coerced the victim into fabricating

testimony that was the primary factor in Plaintiff’s convictions for sexually assaulting that victim.

In evaluating these allegations, this Court considers “not whether a plaintiff will ultimately prevail

but whether the claimant is entitled to offer evidence to support the claim.” Twombly, 550 U.S. at

583. The Court recognizes that discovery may well reveal that the alleged conduct of Defendant

does not support these allegations; however, at this juncture, Plaintiff should be permitted to

engage in discovery on this issue. Thus, at this stage of the proceedings, Plaintiff has set forth a

Fourteenth Amendment claim, and Defendant’s motion to dismiss this claim is denied.

C. Malicious Prosecution and Abuse of Process

Plaintiff has also set forth allegations in the complaint for “prosecutorial misconduct” and

“fraud upon the court.”4 Compl. (ECF No. 1) at ¶ 13. Defendant argues that these claims are barred

pursuant to Heck v. Humphrey, 512 U.S. 477 (1994). Def.’s Br. (ECF No. 9) at 7-8.

It is well-settled that [t]o prove malicious prosecution [under § 1983]... a

plaintiff must show that: (1) the defendants initiated a criminal proceeding; (2) the

criminal proceeding ended in plaintiff’s favor; (3) the proceeding was initiated

without probable cause; (4) the defendants acted maliciously or for a purpose other

than bringing the plaintiff to justice; and (5) the plaintiff suffered deprivation of

liberty consistent with the concept of seizure as a consequence of a legal

proceeding.

McCormack v. Livergood, 353 F. Supp. 3d 357, 364 (M.D. Pa. 2018) (internal quotation marks

4 Neither of these terms is a recognized cause of action. However, reading the complaint as a

whole, Plaintiff appears to be claiming that his conviction is unlawful based upon the conduct of

the prosecutor and that the prosecutor initiated the criminal action for an improper purpose. These

allegations translate most closely to claims of malicious prosecution and abuse of process, and this

Court will evaluate both.

omitted).

In Heck, the Supreme Court held that

in order to recover damages for allegedly unconstitutional conviction or

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

render a conviction or sentence invalid, a [Section] 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, 28 U.S.C. § 2254. A claim for damages bearing that relationship to

a conviction or sentence that has not been so invalidated is not cognizable under

§ 1983.

512 U.S. at 486-87.

In this case, Plaintiff was convicted in state court of the crimes for which he was charged

related to this incident. Thus, Plaintiff has failed to state a claim under section 1983 for malicious

prosecution, and this claim is dismissed with prejudice.5 See Basile v. Twp. of Smith, 752 F. Supp.

2d 643, 666 (W.D. Pa. 2010) (“A defendant can defeat a malicious prosecution claim by

introducing conclusive evidence of probable cause, such as evidence of the plaintiff’s conviction

in the underlying criminal proceeding.”). Moreover, this Court concludes that amendment of the

Complaint at this juncture would be futile. Thompson, 2011 WL 4835831, at *2.

This Court now turns to Plaintiff’s abuse of process claim.6

An abuse of process occurs when a party employs legal process against another

primarily to accomplish a purpose for which it was not designed. “In contrast to a

section 1983 claim for malicious prosecution, a section 1983 claim for malicious

abuse of process lies where ‘prosecution is initiated legitimately and thereafter is

used for a purpose other than that intended by the law.’” Rose v. Bartle, 871 F.2d

331, 350 n. 17 (3d Cir. 1989) (quoting Jennings v. Shuman, 567 F.2d 1213, 1217

(3d Cir. 1977)). Pennsylvania recognizes a cause of action for abuse of process

where “the defendant (1) used a legal process against the plaintiff, (2) primarily to

5 To the extent any or all of Plaintiff’s criminal convictions are overturned on appeal, he may then

bring a new action with these claims.

6 It is not clear whether Plaintiff is setting forth a Section 1983 malicious abuse of process claim

or a Pennsylvania state law abuse of process claim. Thus, this Court analyzes both together.

accomplish a purpose for which the process was not designed; and (3) harm has

been caused to the plaintiff.” Rosen v. Am. Bank of Rolla, [] 627 A.2d 190, 192

([Pa. Super.] 1993). [T]here is no action for abuse of process when the process is

used for the purpose for which it is intended, but there is an incidental motive of

spite or an ulterior purpose of benefit to the defendant.

Napier v. City of New Castle, 407 F. App’x 578, 582 (3d Cir. 2010) (some internal citations and

quotation marks omitted).

In the Complaint, Plaintiff asserts that Defendant instituted the criminal proceedings

against him for the improper purpose of taking “the spotlight off his own ongoing sex crime

investigation” and “to give the alleged victim in Plaintiff’s case an opportunity to get revenge

against him.” Compl. (ECF No. 1) at ¶ 7. However, “the initial filing of criminal charges [], if

improper, would constitute malicious prosecution, not abuse of process.” Napier, 407 F. App’x at

582. In other words, in order to state a claim for abuse of process, Plaintiff would have to concede

that the charges were filed legitimately, then Defendant only continued with prosecution for an

improper purpose. That is not the claim Plaintiff is making; thus, this Court concludes that Plaintiff

has failed to set forth an abuse of process claim under either Section 1983 or Pennsylvania state

law, and Defendant’s motion to dismiss both claims is granted. Moreover, this Court concludes

that amendment of these claims would be futile. Thompson, 2011 WL 4835831, at *2.

IV. CONCLUSION

For all the foregoing reasons, this Court grants Defendant’s motion to dismiss with respect

to Plaintiff’s claims for malicious prosecution and abuse of process. This Court denies

Defendant’s motion to dismiss with respect to Plaintiff’s Fourteenth Amendment due process

claim.

Dated: March 18, 2021.

s/Cynthia Reed Eddy

Cynthia Reed Eddy

Chief United States Magistrate Judge

cc: BARRY LEE CRESPO

JD-1371

SCI Mahanoy

301 Morea Road

Frackville, PA 17932

Counsel of record

(via ECF electronic notification)