Craig Geness v. Jason Cox

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 17-2073

_______________

CRAIG A. GENESS,

Appellant

v.

JASON COX

_______________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(W.D. Pa. No. 2:16-cv-00876)

Honorable Mark A. Kearney, U.S. District Judge

_______________

Argued: January 19, 2018

Before: SMITH, Chief Judge, GREENAWAY, JR., and

KRAUSE, Circuit Judges

(Opinion Filed: August 28, 2018)

Joel S. Sansone [Argued]

Massimo Terzigni

401 Liberty Avenue, Suite 1700

Three Gateway Center

Pittsburgh, PA 15222

Attorneys for Appellant Craig A. Geness

April L. Cressler

Paul D. Krepps

Marshall Dennehey Warner Coleman & Goggin

501 Grant Street

Union Trust Building, Suite 700

Pittsburgh, PA 15219

Carol A. VanderWoude [Argued]

Marshall Dennehey Warner Coleman & Goggin

2000 Market Street, Suite 2300

Philadelphia, PA 19103

Attorneys for Appellee Jason Cox

_______________

OPINION OF THE COURT

_______________

KRAUSE, Circuit Judge.

In a tragic case that suggests systemic deficiencies at

the juncture of Pennsylvania’s criminal justice and mental

health systems, the Appellant in this case—an adult with

mental retardation and other mental illness—was charged for

2

a crime that may not have occurred and was then detained for

nearly a decade awaiting trial, even though it was determined

early in the proceedings that he was incompetent and unlikely

to improve. With fault shared among the Uniontown Police

Department, the Fayette County Public Defender’s Office and

later, private counsel, the Fayette County District Attorney’s

Office, the Court of Common Pleas of Fayette County, and

the mental health infrastructure of Pennsylvania, Craig

Geness’s criminal case was inadequately investigated,

inadequately defended, and inadequately monitored and

supervised as Geness languished in various detention

facilities. All the while, his petition for habeas relief

remained pending. And when a hearing was finally held on

that petition, the District Attorney’s Office voluntarily

dismissed the charges out of concern for its “ability to meet

its burden of proof, even if the defendant were competent.”

App. 205a.

This appeal arises from Geness’s subsequent lawsuit

against the arresting officer, then-Detective Jason Cox,1 and

various other defendants, claiming they violated his civil

rights through reckless investigation, false arrest, false

imprisonment, and malicious prosecution, in violation of 42

U.S.C. § 1983, and that they denied him due process and

violated the Americans with Disabilities Act (“ADA”), 42

1

Appellee Jason Cox is now Chief of Police for the

Uniontown Police Department. Simply for ease of reference,

and without intending any disrespect to the parties, we will

refer to former-Detective Cox and Mr. Geness as simply

“Cox” and “Geness.”

3

U.S.C § 12131. But at this point—nearly a dozen years after

Geness’s arrest and with the performance of his various

counsel marred by inexcusable delays and dilatory discovery

efforts—most avenues of relief are now closed to him. For

the reasons explained below, we will affirm the District

Court’s dismissal of Geness’s § 1983 claims but will reverse

its denial of leave for Geness to amend his complaint and will

remand for him to reinstitute his due process and ADA claims

against the Commonwealth.

I. Background

A. The Incident at the McVey Personal Care

Home

In 2006, Craig Geness lived at the McVey Personal

Care Home, an assisted living facility for intellectually

disabled people, in Uniontown, Pennsylvania. In October of

that year, another resident, Ronald Fiffik, fell from the front

porch of the building and sustained serious injuries. Hearing

the resulting commotion, James McVey, the son of the owner

and the supervisor then on duty, walked out to the porch to

find Fiffik lying on the ground. He called for an ambulance,

informing the dispatcher that a resident had fallen, and Fiffik

was taken by an emergency medical services (“EMS”) unit to

Uniontown Hospital where he was treated before being

discharged to the McVey Home later that day. That evening,

however, Fiffik’s pain intensified and he returned to the

hospital where his condition continued to deteriorate,

ultimately resulting in his death a few weeks later.

Three contemporaneous records from the day of the

incident indicated that Fiffik had merely fallen in an

4

unfortunate accident. First, the initial EMS record noted that

the ambulance was dispatched “in response to a fall” and also

reflected that Fiffik’s wife had witnessed the incident and that

she “stated that [Fiffik] walked out on porch and fell down

approx[.] 5 steps head first.” App. 193a. Next, a Uniontown

police officer who responded to the scene filled out an

incident report, stating that a “[c]aller . . . reported that a male

fell off of a porch” and that the officer took “[n]o further

police action . . . [because] no one onscene [sic] could

provide[] any information as to what happened other than

[that] Fiffik fell off of the porch.” App. 140. Finally, Fiffik’s

hospital admission records reflected that Fiffik was “alert,

cooperative in no distress,” that his “chief complaint” was

that he “FELL,” that he reported he “fell down approximately

five stairs[,] . . . [h]as [mental retardation] and is unsteady and

is not supposed to go near the stairs but he did and then he

fell down them. It was witnessed. No loss of consciousness.

Patient says he feels fine and he wants to go home.”

App. 171.

Notwithstanding these reports by Fiffik and his wife,

once Fiffik’s condition deteriorated to the point that he was

on life support, his daughter reached out to the Uniontown

Police Department to report her suspicion that her father

might have been shoved. As a result, on November 16, 2006,

Cox conducted a one-day investigation, which involved

speaking to Fiffik’s daughter and hospital personnel,

interviewing James McVey, and then interviewing and

obtaining a confession from Geness. Soon thereafter, Cox

swore out a criminal complaint against Geness for aggravated

assault, later upgraded to murder.

5

In his November 16th interview, with the prospect of a

personal injury lawsuit, if not wrongful death suit looming,

McVey reported for the first time that immediately prior to

Fiffik’s fall he heard Geness scream “shut up” from nearby

and then saw Geness walk quickly inside to his bedroom.

App. 141. McVey also said he then followed Geness to his

room and asked if he pushed Fiffik, but Geness did not

answer and instead “responded by laying in a fetal position on

the bed.” Id. In addition, McVey reported, again for the first

time, that during the brief interlude between Fiffik’s return to

the McVey Home and his being readmitted to the hospital,

Fiffik had told McVey that “someone” pushed him. App.

143.

With Geness now a suspect in an alleged crime, Cox

proceeded to interview him. At that point, for reasons not

apparent from the record, Geness had been transferred from

the McVey Home to the Highlands Hospital where he had

been admitted in the past and was then living as an in-patient.

According to Cox’s report, he had Geness brought to a room

to meet with him, read Geness his Miranda warnings, and

asked if Geness would speak with him concerning “the day

that Ronald Fiffick fell from the wall.” App. 141. Once

Geness agreed and signed the Miranda waiver, Cox asked

him the date, the day of the week, if he had gone to high

school, and who was President of the United States. Geness

correctly answered these questions and then, according to the

report, provided a confession closely tracking McVey’s

account of events. That is, he admitted that on the day Fiffik

was injured, Fiffik “said something” to him; he then

“screamed at Fiffik ‘Shut Up’” and “voices inside his head

told him to push Fiffik over the wall”; and he “shoved Fiffik

hard . . . went up to his bedroom, and shut the door.” Id.

6

In his Affidavit of Probable Cause in support of the

arrest warrant, Cox recounted James McVey’s allegations

against Geness and Geness’s confession, and on that basis, a

magisterial district judge issued a warrant for Geness’s arrest.

From that point forward, according to the affidavit he filed in

support of his motion for summary judgment in the District

Court, Cox “no longer maintained an active role in the

prosecution of Mr. Geness,” “heard very little from the

prosecution regarding this case for approximately seven

years,” “did not have any role in the subsequent decision

making in the prosecution,” and “was never contacted by

[the] Public Defender . . . or [Geness’s private counsel] for

information relating to [his] investigation . . . .” App. 165.

Also according to that affidavit, Cox did not reference the

exculpatory evidence in the EMS report and the hospital

admission records in his Affidavit of Probable Cause because

he “ha[d] no recollection of ever having seen [them] prior to

the filing of this lawsuit,” and to obtain them, he would have

required a search warrant, which he also “ha[d] no

recollection of ever having obtained.” App. 164.

Upon his arrest, Geness was taken into custody, where,

between Fayette County Prison and a locked-down mental

institution, he would remain for over nine years without any

further investigation, a hearing on his habeas petition, or a

trial.

B. Geness’s Incarceration and Eventual Civil

Commitment

The administration of justice went awry for Geness

from the outset. After he was arraigned in November 2006,

7

Geness did not receive a preliminary hearing in magisterial

district court for over five months. The Public Defender filed

a habeas motion in the Court of Common Pleas of Fayette

County in June 2007, asserting that Geness’s confession was

obtained in violation of his constitutional rights and that Cox

lacked probable cause to arrest. Yet that motion was not

ruled upon as Judge Leskinen, to whom the case was

assigned, opined that Geness was “not at the present time

competent to stand trial,” App. 147, and the Defender agreed

to continue any hearing on the petition “until [d]efendant is

competent,” App. 148. Pursuant to Section 402 of the

Pennsylvania Mental Health Procedures Act, 50 Pa. Cons.

Stat. Ann. § 7402, Geness was ordered to be transferred to

Mayview State Hospital, for no more than 60 days, to receive

a psychiatric evaluation.

That transfer, however, was not carried out, and almost

two months later, the court issued a second order for a

psychiatric examination to be performed. Still no action was

taken. Finally, in September 2007, nearly ten months after

Geness’s arrest and after yet a third order was issued, Geness

received his first examination. He was diagnosed by a

psychiatrist with the Psychiatric Forensic Center at Mayview

State Hospital with mild mental retardation with an IQ of 51

and schizoaffective bipolar disorder, and was found

“incompetent to stand trial” because he was unable “to

understand the concept of trial,” App. 194, or “to recognize

the role of personnel in the court system . . . [or the] various

outcomes from his pending charges,” App. 198. His

prognosis for improvement was deemed “poor.” App. 197.

Notwithstanding that prognosis, however, Judge

Leskinen merely instructed counsel to request a hearing on

8

the habeas petition “at such time as def. is deemed competent

to proceed,” App. 148, and it appears that neither the Public

Defender, nor the DA’s Office, nor the court paid particular

heed to the case again for another three years. Instead,

Geness was returned to prison where he remained until

November 2010.

At that point, for reasons not apparent from the record,

the Public Defender requested that the court order Geness’s

involuntary commitment and residential treatment. In

response, Judge Leskinen ordered a second psychiatric

examination, noting that upon “a report containing a

determination that the def. would not regain competency

within a reasonable period of time . . . upon motion of

counsel, the Court will schedule an additional hearing on that

issue.” App. 149.

Still, the cycle of indifference continued. This second

examination was inexplicably delayed for nearly a year, and

in the interim, counsel took no action.2 And even after the

examination was completed and concluded (as the court had

anticipated) that Geness remained incompetent and was “not

likely to respond to any additional treatment interventions,”

App. 203, Geness’s counsel did not request a hearing on his

long-pending habeas petition, nor did the prosecutor or the

court raise the matter. Instead, in September 2011—five

years after Geness’s arrest and with his criminal charges still

2

Geness was ordered evaluated at Torrance State

Hospital, but apparently on account of space constraints, the

assessment eventually took place at Fayette County Prison.

9

pending—Judge Leskinen ordered him transferred to

involuntary commitment in a long term structured residence

(“LTSR”) where he would be fitted with an ankle monitor

and would “remain without contact with the general public.”

App. 151. He further ordered that Geness be returned to

Fayette County Prison “upon completion” of his civil

commitment or upon “a determination that he is competent to

stand trial, whichever comes first.” App. 151.

In March 2012, Geness had a change of counsel but,

sadly, no change of fortune. According to the affidavit his

new counsel, Bernadette Tummons, filed in connection with

the underlying summary judgment proceeding, she made

numerous and repeated discovery requests of the District

Attorney’s Office over a two-year period that were simply

ignored. Tummons, however, opted not to seek the court’s

intervention because she was concerned that “doing so would

have flaunted [sic] the common practice of Fayette County . .

. , would not have been successful, and would have assuredly

soured [her] already tenuous relationship with the Office of

the District Attorney.” App. 331.

In June 2014, Tummons received a limited document

production, including Cox’s affidavit and the Public

Defender’s omnibus pretrial motion that asserted the

confession was illegal. Those documents prompted her to

think Geness’s Miranda waiver and confession might not

have been voluntary. By her account, when she next met with

Geness, he told her he confessed because “the police told him

[to say] that he pushed Mr. Fiffik.” App. 332. Rather than

acting on this information, however, Tummons opted to await

further discovery, if forthcoming, from the DA’s Office. In

fact, she waited nearly another year before filing her first of

10

three motions to compel in May 2015. Contrary to her earlier

assumption, all were successful. In September 2015, with the

additional support in the psychiatric reports for her hypothesis

that the confession was involuntary, Tummons filed a motion

to dismiss the indictment and renewed motion for habeas

relief.

C. The Hearing on Geness’s Motions

Two months later, nearly nine years to the day after his

arrest, Geness finally received a hearing in the Court of

Common Pleas. Unsurprisingly, the DA’s Office advised the

court that it did not intend to proceed to trial as it anticipated

it would be “unable to prove the case,” App. 174, and the

court agreed, noting that “if there is a reasonable possibility

that the decedent just fell then it would be impossible for the

Commonwealth to prove the case beyond a reasonable

doubt,” App. 177. But despite those observations and the

protracted proceedings in this case, Judge Leskinen declined

to reach the merits of Geness’s motion to dismiss or his

habeas petition, instead inviting the Commonwealth to

abandon the charges by submitting a request for nolle

prosequi (“nol pros”), and advising he would just “sign it” if

submitted. App. 177-78. As the court observed, that

approach would “moot consideration of [the] Motion for

Habeas Corpus.” App. 187.

The DA’s Office readily agreed that it would “rather

be in a position to present the Nol Pros today,” id., and thus,

over the repeated objection of Tummons, the court postponed

ruling on Geness’s motions. The court also rejected

Tummons’s entreaty that it at least require the prosecutor to

put “the reasons for the nol pros . . . on the record,” but it did

11

instruct the prosecutor to include those reasons “in the nol

pros when he brings it up.” App. 189. And when it did—not

that day as promised, but two weeks later—the DA’s office

acknowledged its reason was not only that the

“Commonwealth believes that the defendant is and remains

incompetent for trial,” but also that there were “substantive

evidentiary issues in this matter that likely could and would

impair the Commonwealth’s ability to meet its burden of

proof, even if the defendant were competent.” App. 205a.

When it came to entering the nol pros order, however,

the court declined to mention the prosecution’s inability to

sustain its evidentiary burden, referencing only Geness’s

incompetence. And although not argued or requested by the

prosecution, the court sua sponte offered its opinion that

“there was clearly sufficient probable cause to file the

criminal complaint and to pursue the matter,” App. 191, and

that the charges, which it dismissed “without prejudice,”

“may be refiled in the event evidence justifying such refiling

is developed and discovered,” App. 193.

In mid-December 2015, Geness was finally released.

D. Proceedings in the District Court

In June 2016, represented by his third and current

attorney, Geness filed a complaint against Cox, James McVey

and his parents (the owners of the McVey Home), the County

of Fayette, and the City of Uniontown. As relevant to this

appeal, he asserted claims for malicious prosecution, false

arrest, false imprisonment, and reckless investigation, in

violation of 42 U.S.C. § 1983, and claims for violation of due

process and the ADA.

12

Ruling on the defendants’ motion under Rule 12(b)(6),

the District Court dismissed Geness’s malicious prosecution

claim on the ground that the nol pros order, by its terms, did

not satisfy the element of “favorable termination” of the

charges against him. Sometime thereafter, realizing he had

erroneously filed his ADA and due process claims against the

City of Uniontown and the County of Fayette instead of the

Commonwealth, Geness sought leave to amend. But the

District Court denied that request, reasoning that amendment

would be futile because the ADA claim also would be barred

under the Rooker-Feldman doctrine as “a direct challenge to a

state court’s orders and judgments.” Geness v. Cox, No. 16-

876, 2017 WL 1058826, at *4 (W.D. Pa. Mar. 21, 2017).

With Geness having voluntarily dismissed all

defendants but Cox, the parties proceeded with discovery.

And once that was completed, the District Court granted

summary judgment on Geness’s reckless investigation, false

arrest, and false imprisonment claims, concluding that Geness

“fail[ed] to adduce evidence sufficient to proceed to trial” on

any of them, and that the claims were also barred by the

applicable two-year statute of limitations.3 Geness v. Cox,

3

The District Court also granted summary judgment

on Geness’s state law claim for intentional infliction of

emotional distress on both statute of limitations and

sufficiency of the evidence grounds. We need not dwell on

this claim, however, as Geness does not challenge the ruling

that it is time-barred on appeal, and, regardless, Geness did

not present evidence that he suffered “some type of resulting

physical harm due to the defendant’s outrageous conduct,” as

13

No. 16-876, 2017 WL 1653613, at *4 (W.D. Pa. May 1,

2017).

II. Standard of Review4

We exercise plenary review over a district court’s

dismissal of claims under Rule 12(b)(6), Schmidt v. Skolas,

770 F.3d 241, 248 (3d Cir. 2014), accepting the complaint’s

factual allegations as true and construing them in the light

most favorable to the nonmoving party, Connelly v. Lane

Constr. Corp., 809 F.3d 780, 790, 793 (3d Cir. 2016). We

also review a district court’s grant of summary judgment de

novo, Faush v. Tuesday Morning, Inc., 808 F.3d 208, 215 (3d

Cir. 2015), and we consider the undisputed facts in the light

most favorable to the nonmoving party. Fed. R. Civ. P. 56(a);

Burton v. Teleflex Inc., 707 F.3d 417, 425 (3d Cir. 2013).

Finally, we review a district court’s denial of a motion to

amend for abuse of discretion, Lake v. Arnold, 232 F.3d 360,

373 (3d Cir. 2000), but where an amendment is denied on the

grounds of futility, as it was here, we use the “same standard

of legal sufficiency as applies under Rule 12(b)(6),” Shane v.

Fauver, 213 F.3d 113, 115 (3d Cir. 2000).

required under Pennsylvania law, that claim would fail in any

event. Reedy v. Evanson, 615 F.3d 197, 231-32 (3d Cir.

2010) (quoting Swisher v. Pitz, 868 A.2d 1228, 1230 (Pa.

Super. Ct. 2005)).

4

The District Court had jurisdiction under 28 U.S.C.

§ 1331. We have jurisdiction under 28 U.S.C. § 1291.

14

III. Discussion

For the reasons we explain below, notwithstanding the

disturbing history of this case, we are constrained to affirm

the dismissal of Geness’s § 1983 claims because they were

either time-barred by the date the complaint was filed or were

not sufficiently substantiated through discovery. We

consider, in turn, Geness’s argument concerning the time-

barred claims, the District Court’s dismissal of his malicious

prosecution claim, and the Court’s denial of leave to amend

with regard to his due process and ADA claims.

A. Time-Barred Claims

In what we construe as an argument that the District

Court erred in concluding that his § 1983 claims for false

arrest, false imprisonment, and reckless investigation were

time-barred,5 Geness urges this Court to “rule that Mrs.

5

Although Geness purports to state a claim for

reckless investigation under the Due Process Clause of the

Fourteenth Amendment, such a claim, if cognizable, could

only arise under the Fourth Amendment. See Manuel v. City

of Joliett, III, 137 S. Ct. 911, 919 (2017) (“If the complaint is

that a form of legal process resulted in pretrial detention

unsupported by probable cause, then the right allegedly

infringed lies in the Fourth Amendment.”); accord Albright v.

Oliver, 510 U.S. 266, 274 (1994) (plurality opinion).

Whatever doubts we may harbor as to the viability of such a

claim, however, see Brooks v. City of Chi., 564 F.3d 830, 833

(7th Cir. 2009) (observing that “[a] plaintiff cannot state a due

process claim by combining what are essentially claims for

15

Tummons acted in as timely a fashion as possible given all of

the circumstances and that . . . the constitutional

claims . . . have been preserved.” Appellant’s Br. 57. The

District Court found that, even with tolling until March 2012

when Tummons had sufficient information to file a claim,

Geness’s false arrest, false imprisonment, and reckless

investigation claims were still filed outside the two-year

limitations period.

It is the “standard rule” that accrual of a claim

“commences when the plaintiff has a complete and present

cause of action,” Bay Area Laundry & Dry Cleaning Pension

Tr. Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 201 (1997)

(citation omitted), which occurs for false arrest and false

imprisonment claims when a plaintiff “appear[s] before the

examining magistrate and [is] bound over for trial,” i.e.,

false arrest under the Fourth Amendment and state law

malicious prosecution into a sort of hybrid substantive due

process claim under the Fourteenth Amendment” (citations

omitted)); Curley v. Vill. of Suffern, 268 F.3d 65, 70 (2d Cir.

2001) (stating that an officer need not “explore and eliminate

every theoretically plausible claim of innocence” even if “an

investigation might have cast doubt upon the basis for the

arrest” (citations omitted)), we have no occasion to resolve

them today. First, no such constitutional right was “clearly

established” at the relevant time, as required to overcome

qualified immunity. Ashcroft v. Al-Kidd, 563 U.S. 731, 741

(2011). Second, such a claim, in any event, would be time

barred and, for the reasons we discuss below, would not

survive summary judgment. See infra Section IV.B.2.

16

“once the victim becomes held pursuant to [legal] process,”

Wallace v. Kato, 549 U.S. 384, 389, 391 (2007) (emphasis

omitted).6 As Geness was held over on the homicide charges

in 2007, his § 1983 claims expired sometime in 2009,

rendering the filing of his complaint in 2016 far out of time.

Unfortunately for Geness, although we may toll the

statute of limitations pursuant to a state law discovery rule or

applicable federal tolling principle, see Kach v. Hose, 589

F.3d 626, 639 (3d Cir. 2009), we do not have a basis to do so

here. Application of a tolling doctrine requires the plaintiff to

at least “invoke [the] rule in [the] opening brief.” Id. at 642.

In his opening brief, however, Geness’s counsel fails to even

mention the “discovery rule,” let alone cite to any authority or

record support for equitable tolling. Aside from the fact that

6

In its recent opinion in Manuel, the Supreme Court

left unresolved whether a claim for unlawful pretrial

detention, i.e., imprisonment that persists without probable

cause beyond the onset of legal process, accrues at the onset

of that legal process, like a claim of false arrest, see Manuel,

137 S. Ct. at 921 (citing Wallace, 549 U.S. at 389-90), or

accrues only upon dismissal of the charges, like a claim of

malicious prosecution, id. In Manuel, the Court remanded to

the Seventh Circuit to address the issue in the first instance;

here, we have no need to address the issue, given both

Geness’s failure to raise the issue of accrual, In re Wettach,

811 F.3d 99, 115 (3d Cir. 2016) (noting that arguments not

raised in an appellant’s opening brief are forfeited), and our

conclusion that Geness, in any event, failed to raise a genuine

dispute of material fact as to probable cause, see infra Section

IV.B.2.

17

such failure to “cit[e] to the authorities and parts of the record

on which the appellant relies” violates Fed. R. App. P.

28(a)(8)(A), it is “well settled that ‘a passing reference to an

issue will not suffice to bring that issue before this court.’”

Kach, 589 F.3d at 642 (quoting Laborers’ Int’l Union of N.

Am., AFL-CIO v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d

Cir. 1994)); see also In re Wettach, 811 F.3d 99, 115 (3d Cir.

2016) (treating as forfeited arguments not raised in an

appellant’s opening brief).

In short, Geness has waived any tolling arguments on

appeal, and the District Court correctly dismissed Geness’s

false arrest, false imprisonment, and reckless investigation

claims as time-barred.

B. Dismissal of the Malicious Prosecution Claim

We next consider the District Court’s dismissal of

Geness’s malicious prosecution claim, which required him to

show that: “(1) the defendants initiated a criminal proceeding;

(2) the criminal proceeding ended in his favor; (3) the

defendants initiated the proceeding without probable cause;

(4) the defendants acted maliciously or for a purpose other

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

deprivation of liberty consistent with the concept of seizure as

a consequence of a legal proceeding.” Zimmerman v.

Corbett, 873 F.3d 414, 418 (3d Cir. 2017), cert. denied, No.

17-1234, 2018 WL 1173874 (U.S. June 11, 2018) (brackets

and citations omitted); see also Manuel v. City of Joliet, Ill.,

137 S. Ct. 911, 920 (2017) (“[T]he Fourth Amendment

governs a claim for unlawful pretrial detention even beyond

the start of legal process . . . .”). Although we conclude the

District Court erred in dismissing this claim for failure to

18

establish “favorable termination,” we will nonetheless affirm

because Geness failed at summary judgment to raise a

genuine dispute of material fact as to the absence of probable

cause.7

1. Favorable Termination

The element of favorable termination is established by

showing that the proceeding ended in any manner “that

indicates the innocence of the accused,” Kossler v. Crisanti,

564 F.3d 181, 187 (3d Cir. 2009), which can be satisfied

when charges are formally abandoned by way of a nol pros,

Donahue v. Gavin, 280 F.3d 371, 383 (3d Cir. 2002). Here,

the District Court concluded that the charges did not

“favorably terminate” for Geness because the nol pros order

did not itself indicate his innocence. Geness v. County of

7

Having dismissed the malicious prosecution claim at

the outset, the District Court did not have occasion to address

the presence of probable cause for that claim in particular at

summary judgment. As that element is the same, though, for

Geness’s false arrest and false imprisonment claims, the

District Court’s conclusion that he failed to establish a triable

issue concerning probable cause for those claims would make

any remand for that determination on the malicious

prosecution claim futile. See, e.g., Great W. Mining &

Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 178 n.9

(3d Cir. 2010) (declining to remand because the § 1983 claim

would have been futile).

19

Fayette, No. 16-876, 2016 WL 6652758, at *6-7 (W.D. Pa.

Nov. 9, 2016). That reasoning does not square with our

precedent.

Regardless of whether a nol pros order on its face

“indicate[s] the innocence of the accused,” Donahue, 280

F.3d at 383, a district court must conduct a “fact-based

inquiry,” Kossler, 564 F.3d at 194, considering, among other

things, the “underlying facts” of the case, id., the “particular

circumstances” prompting the nol pros determination, id. at

189, and the substance of the “request for a nol pros that . . .

result[ed in the] dismissal,” Donahue, 280 F.3d at 384. Yet

the District Court here refused to look beyond the four

corners of the order. And it need not have looked far to

conclude that the nol pros termination here was a favorable

termination, for the abandonment of charges for “insufficient

evidence” unquestionably provides “an indication that the

accused is actually innocent of the crimes charged.” Hilfirty

v. Shipman, 91 F.3d 573, 580 (3d Cir. 1996); see also

Haefner v. Burkey, 626 A.2d 519, 521 (Pa. 1993) (holding as

a matter of Pennsylvania law that nol pros “because of

insufficient evidence” demonstrates that “the proceedings

terminated in favor of the [accused]”).

In Geness’s case, the DA’s Office anticipated it would

be “unable to prove the case,” App. 174, and the state court

agreed that “a reasonable possibility that the decedent just

fell” would make it “impossible for the Commonwealth to

prove the case beyond a reasonable doubt,” App. 177. In

addition, the proposed order submitted by the DA’s Office

expressly acknowledged “substantive evidentiary issues in

this matter that likely could and would impair the

20

Commonwealth’s ability to meet its burden of proof.” App.

205a.

Under Kossler and Donohue, this nol pros disposition

did reflect a favorable termination, and the District Court

should not have dismissed the malicious prosecution claim

for failure to prove that element.8 Nonetheless, we may

affirm on any basis in the record and one such basis is

apparent: Geness failed to satisfy his burden to establish a

genuine dispute of material fact concerning the absence of

probable cause. We turn next to that issue.

2. Probable Cause

Where, as here, a probable cause finding was made by

a neutral magistrate in connection with a warrant application,

a plaintiff must establish “first, that the officer, with at least a

reckless disregard for the truth, ‘made false statements or

omissions that create[d] a falsehood in applying for a

warrant,’” and second, “that those assertions or omissions

were ‘material, or necessary, to the finding of probable

cause.’” Dempsey v. Bucknell Univ., 834 F.3d 457, 468-69

(3d Cir. 2016) (quoting Wilson v. Russo, 212 F.3d 781, 786-

87 (3d Cir. 2000)). Omissions are made with reckless

disregard only if an officer withholds a fact “in his ken” that

any “reasonable person would have known . . . [is] the kind of

8

The fact that the charges were dismissed without

prejudice is also not fatal to favorable termination. See

Haefner, 626 A.2d at 521 n.2 (holding that charges

terminated favorably even though they could have been

“reinstated”).

21

thing the judge would wish to know,” id. at 470 (quoting

Wilson, 212 F.3d at 788) (internal quotation marks omitted),

and the focus is thus “facts and circumstances within the

officer’s knowledge” at the time of the arrest, irrespective of

later developments, Michigan v. DeFillippo, 443 U.S. 31, 37

(1979).

Geness’s argument, in essence, is that Cox knew and

failed to disclose in his Affidavit of Probable Cause (1) the

exculpatory evidence in the EMS report and hospital

admission records; and (2) Geness’s inability, because he was

incompetent or highly suggestible, to give a valid confession.

We have little doubt that this information, had it been known

to Cox when he swore out his Affidavit of Probable Cause,

would satisfy the threshold for “[r]eckless [o]missions,”

Dempsey, 834 F.3d at 470-74, and had Geness’s counsel

“go[ne] beyond the pleadings” and “come forward with

‘specific facts showing that there [was] a genuine [dispute

concerning such knowledge] for trial,’” Santini v. Fuentes,

795 F.3d 410, 416 (3d Cir. 2015) (quoting Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)),

it would have been error to grant summary judgment.

But there’s the rub: Because Geness elected not to

depose Cox,9 the only evidence in the record concerning

9

While Geness’s counsel asserts he did not “choose”

to forego Cox’s deposition, Appellant’s Br. 44 n.15, it is

beyond dispute that he sought to depose Cox after the

deadline for fact discovery and after Cox’s motion for

summary judgment had already been filed. We cannot say it

was an abuse of discretion for the District Court to grant a

22

Cox’s knowledge of the exculpatory evidence or Geness’s

competence at that time is Cox’s own affidavit in support of

summary judgment. In it, Cox swears that he “ha[s] no

recollection of ever having seen [the EMS or hospital records]

prior to the filing of this lawsuit,” App. 164; that to obtain

them, he would have required a search warrant, which he also

“ha[s] no recollection of ever having obtained,” id., and that

he observed, before taking Geness’s confession, that Geness

“indicated his understanding of [Cox’s] purpose for being

there,” that he signed the Miranda waiver, and that he “was

able to respond” to questions and answer “appropriately,” id.

at 162.

What Geness identifies as contradictory circumstantial

“evidence” in the record is, on inspection, nothing more than

“speculation or conjecture [that] does not create a material

factual dispute sufficient to defeat summary judgment.”

Halsey v. Pfeiffer, 750 F.3d 273, 287 (3d Cir. 2014). Even

viewing in the light most favorable to Geness, see Fed. R.

Civ. P. 56(a); Burton, 707 F.3d at 425, the fact that the

Unionville Hospital records reflect a print-out date of

November 16, 2006, the same date as Cox’s one-day

investigation, it is equally or more plausible—particularly in

view of Cox’s assertion that he could not access such records

without a search warrant—that the records were printed not

protective order, precluding Cox’s deposition, in this

circumstance. See United States v. Washington, 869 F.3d

193, 220 (3d Cir. 2017) (“As we have often said, matters of

docket control and discovery are committed to broad

discretion of the district court.”).

23

for Cox but for hospital risk management personnel, treating

physicians, or Fiffik’s family members. Nor, outside of

hypothetical possibilities, does the record support a linkage

between the fact that Cox had a general practice of turning his

files over to the DA’s Office and the fact that the DA’s

Office—which could have received the hospital records from

any number of sources—eventually had those records in its

possession to produce to Tummons.

As Geness elected not to depose any of the witnesses

who might have substantiated his hypotheses,10 however, he

is left with disparate facts and possible inferences from which

to argue Cox’s contemporaneous knowledge of the reports’

10

For example, Geness did not depose any of the

Unionville Hospital personnel with whom Cox spoke on the

day of the investigation to ascertain whether they

communicated to him the substance of the admission report;

any hospital records custodian who might have maintained a

record of how the admission report came to be printed out on

that day and to whom it was provided; Fiffik’s daughter

concerning her conversation with Cox that day and any

documents she may have provided to him at that time;

Fiffik’s wife concerning any conversations she may have had

with Cox before he filed his Affidavit of Probable Cause; or

the initial investigating officer concerning what, if anything,

he conveyed to Cox about his conversations with Fiffik or

McVey on the day of the incident. See, e.g., Montgomery v.

De Simone, 159 F.3d 120, 122 (3d Cir. 1998) (reversing a

grant of summary judgment on malicious prosecution claim

because, through discovery, the plaintiff “raised a genuine

issue of material fact as to probable cause”).

24

exculpatory contents. At best, however, that amounts to “a

mere ‘scintilla of evidence’ in [Geness’s] favor,” Ramara,

Inc. v. Westfield Ins. Co., 814 F.3d 660, 666 (3d Cir. 2016),

and not what is needed to survive summary judgment:

“evidence on which the jury could reasonably find for

[Geness],” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

252 (1986).

Geness fares no better with his “facts” purportedly

showing that Cox knew at the time that Geness’s Miranda

waiver and confession were not “reasonably trustworthy.”

Zimmerman, 873 F.3d at 418. Geness’s current counsel

points to Tummons’s affidavit, recounting that Geness told

her the police put words in his mouth, and notes that he

“expects [Geness] to be able to testify that he was told by

Defendant Cox that he committed this crime, thereby

obviating . . . hearsay considerations.” Appellant’s Br. 45 n.

16 (emphasis added). Starkly absent from the existing record,

however, is any testimony or affidavit from Geness, or any

other contemporaneous evidence suggesting that his

confession was indeed coerced. Cf. Sutkiewicz v. Monroe

Cty. Sheriff, 110 F.3d 352, 358-60 (6th Cir. 1997)

(concluding that recordings of interrogation undermined

probable cause because they showed the officer “strongly

suggested to [the accused mentally ill man] that he should

confess”).

And while Geness’s counsel insinuates that his

impairments were so severe and pronounced that it would

have been apparent to any reasonable officer that his

confession was involuntary, counsel did not adduce any

testimony or evidence to that effect in discovery. For

example, Geness’s counsel did not seek to depose or submit

25

affidavits from personnel at Highlands Hospital where Cox

interviewed Geness, the physicians who conducted Geness’s

psychiatric examinations, or any experts as to how Geness

presented at the time and whether his incompetence would

have been obvious.11 Cf. Sanchez v. Hartley, 810 F.3d 750,

756 (10th Cir. 2016) (holding that the plaintiff’s “pronounced

cognitive and developmental disabilities,” coupled with

allegations that the “detectives and investigator noticed [the

plaintiff’s] unusual behavior,” supported plausible inference

that “the defendants either knew the confession was untrue or

acted in reckless disregard of the truth”). In short, aside from

Geness’s mental condition—which, “by itself and apart from

its relation to official coercion,” does not render his

confession involuntary, Colorado v. Connelly, 479 U.S. 157,

164 (1986)—Geness has not identified any admissible

evidence in Cox’s “ken” contradicting the affidavit.

Dempsey, 834 F.3d at 469-70.

According to that affidavit, the “facts and

circumstances within . . . [Cox’s] knowledge” at the time of

the arrest, DeFillippo, 443 U.S. at 37, were (1) that Fiffik’s

daughter believed her father had been pushed off the wall by

Geness; (2) that McVey had heard Geness scream at Fiffik

moments before Fiffik was discovered on the ground, had

seen Geness rush to his room and assume a fetal position, and

11

To the contrary, counsel argues that even Tummons

did not appreciate “the extent of [Geness’s] mental

impairment” until she received the psychiatric reports,

Appellant’s Br. 54-55—two years after she met with Geness

and took on his representation.

26

had been told by Fiffik later that day Fiffik had been pushed;

and (3) that Geness—after agreeing to speak, waiving his

Miranda rights, and answering basic questions accurately and

appropriately—provided a confession consistent with

McVey’s account. Probable cause requires only sufficient

probability, not certainty that a crime has been committed, see

Zimmerman, 873 F.3d at 418-19. As the foregoing discussion

makes clear, the facts then known to Cox were sufficient for a

“reasonable person” to reach that conclusion. Dempsey, 834

F.3d at 469-70.12

12

Under our case law to date, a malicious prosecution

claim fails so long as “the proceeding was initiated . . . with[]

probable cause.” Zimmerman, 873 F.3d at 418 (emphasis

added). The Supreme Court has recently stated, though, that,

“those objecting to a pretrial deprivation of liberty may

invoke the Fourth Amendment when . . . that deprivation

occurs [even] after legal process commences,” Manuel, 137

S. Ct. at 918, and some of our Sister Circuits have implicitly

authorized a malicious prosecution claim based upon a theory

of “continuing prosecution,” i.e., that the prosecution

continued and charges were not dismissed after the revelation

of sufficient exculpatory information to undermine a probable

cause finding, see Haupt v. Dillard, 17 F.3d 285, 290 n.5 (9th

Cir. 1994), as amended (Apr. 15, 1994) (“Probable cause to

continue a prosecution may disappear with the discovery of

new exculpatory evidence after the preliminary hearing . . .

[and] state actors who . . . suppress [this evidence] may be

liable for malicious prosecution . . . .”); accord Jones v. City

of Chi., 856 F.2d 985, 994 (7th Cir. 1988) (noting that a

malicious prosecution claim could be stated “[i]f police

officers have been instrumental in the plaintiff’s continued

27

C. The ADA and Due Process Claim

Finally, we turn to Geness’s claims that his prolonged

detention, without a hearing, pending duplicative and futile

psychiatric examinations violated due process and constituted

discrimination “by reason of [mental] disability” under the

ADA. 42 U.S.C. § 12132. These claims go to the heart of the

systemic problems that plagued this case, but Geness did not

have the opportunity to pursue them because he initially

named the wrong defendants and the District Court denied

him leave to add the right one, the Commonwealth. Its

reasoning was that, although requests to amend generally

should be “freely given” in the absence of (1) undue delay,

bad faith or dilatory motives, (2) futility, or (3) prejudice to

the other party, Foman v. Davis, 371 U.S. 178, 182 (1962);

Lake, 232 F.3d at 373; see also Fed. R. Civ. P. 15, two of

those grounds applied here: futility, because the claims would

be barred under the Rooker-Feldman doctrine, and delay,

because Geness provided no explanation, other than “recently

discovered case law” in the form of the thirteen-year-old

Supreme Court case Tennessee v. Lane, 541 U.S. 509 (2004),

for waiting four-months before seeking to add the

Commonwealth. Geness, 2017 WL 1058826, at *2-3.

For the reasons we explain below, neither of these

grounds justified a departure from the general rule in favor of

permissive amendment.

confinement or prosecution”). We have no occasion to

consider that theory today, as it was not raised by Geness and

he states his claim only against Cox, not any other actors

responsible for Geness’s continued confinement.

28

1. Geness’s ADA and Due Process

Claims Are Not Futile.

a. Geness’s Claims Are Not

Barred by Rooker-Feldman.

The Rooker-Feldman doctrine “bars federal district

courts from exercising appellate jurisdiction over state court

actions.” Nat’l R.R. Passenger Corp. v. Pa. Pub. Util.

Comm’n, 342 F.3d 242, 256 (3d Cir. 2003) (citing Rooker v.

Fidelity Trust Co., 263 U.S. 413, 416 (1923)). This “narrow

doctrine . . . applies only in ‘limited circumstances,’” Lance v.

Dennis, 546 U.S. 459, 464-66 (2006), and is restricted to

cases where “four requirements are met: (1) the federal

plaintiff lost in state court, (2) the plaintiff complains of

injuries caused by the state-court judgment, (3) that judgment

issued before the federal suit was filed, and (4) the plaintiff

invites the district court to review and reject the state-court

judgment.” In re Phila. Entm’t & Dev. Partners, 879 F.3d

492, 500 (3d Cir. 2018) (citing Great W. Mining & Mineral

Co. v. Fox Rothschild LLP, 615 F.3d 159, 166 (3d Cir.

2010)).

Contrary to the District Court’s ruling that Geness

stated “a direct challenge to a state court’s orders and

judgments,” App. 30, neither the first nor the fourth

requirements were met. Geness is not a “state-court loser[],”

Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S.

280, 284, 293 (2005), in the sense that his ADA and due

process claims were presented to or ruled upon by the state

court; they were not. Nor is Geness a “federal plaintiff who

was injured by a state-court judgment . . . invariably seeking

review and rejection of that judgment.” Great Western, 615

29

F.3d at 168. Instead, a subsequent federal claim constitutes

“[p]rohibited appellate review” only when it “consists of a

review . . . to determine whether [the lower tribunal] reached

its result in accordance with law,” id. at 169, or when the

federal plaintiff seeks “to have the state-court decisions

undone or declared null and void,” id. at 173.

Neither pertains here. Geness asserts that the orders

requiring him to be held for future, duplicative examinations,

despite the hopelessness of his gaining competence, and the

prolonged detention that resulted, amounted to disability

discrimination. His federal suit thus presents an

“‘independent claim,’ even if that claim denies a legal

conclusion reached by the state court,” id. at 169 (quoting

Exxon Mobil Corp., 544 U.S. at 293), and seeks a remedy for

the “legal injury caused by the adverse party”—the

Commonwealth of Pennsylvania—not any “legal injury

caused by a state court judgment because of a legal error

committed by the state court,” id.

As a result, this case falls comfortably outside the

boundaries we have set for the Rooker-Feldman doctrine. In

Great Western, where the plaintiff asserted the defense

attorney had conspired with the Common Pleas judges who

ruled on his arbitration-related claim, we explained that

Rooker-Feldman does not present a jurisdictional bar to

federal review when the plaintiff asserts not “merely” that the

“state-court decisions were incorrect,” id. at 172, but that

“people involved in the decision violated some independent

right,” id. Similarly, in Desi’s Pizza, Inc. v. City of Wilkes-

Barre, a case concerning repeated state court determinations

that the plaintiff’s pizza shop was a nuisance, we held

Rooker-Feldman inapplicable where the shop owner alleged

30

his shop was targeted for enforcement “with the intent to

drive certain ethnic groups out of the city,” because such a

claim arose independently of the state court finding that the

shop was, in fact, a nuisance. 321 F.3d 411, 422-26 (3d Cir.

2003); see also id. at 425 (“It is well established . . . that

selective prosecution may constitute illegal discrimination

even if the prosecution is otherwise warranted.” (citing Wayte

v. United States, 470 U.S. 598, 608 (1985))).

Like those plaintiffs, Geness alleges “federal [due

process] and statutory discrimination claims,” id. at 423,

namely, that the Office of the Fayette County District

Attorney and the Court of Common Pleas of Fayette County

acted in concert to deprive him of “an independent

constitutional” and statutory right—the right to a forum free

of disability discrimination—that arises irrespective of

whether he was, in fact, competent to stand trial, Great

Western, 615 F.3d at 161. Rooker-Feldman is therefore

inapplicable, and the District Court erred in denying leave to

amend on that ground of futility.

b. Geness’s Claim Is Not

Otherwise Futile.

As we may affirm on any ground supported by the

record, we have considered whether Geness’s proposed claim

would be futile for any other reason and conclude it would

not. On the contrary, “taking all pleaded allegations as true

and viewing them in a light most favorable to the plaintiff” as

we must when evaluating futility, Great Western, 615 F.3d at

175 (citing Winer Family Tr. v. Queen, 503 F.3d 319, 330-31

(3d Cir. 2007)), Geness has stated cognizable ADA and due

process claims.

31

To state a claim under Title II of the ADA, Geness

must establish: “(1) he is a qualified individual; (2) with a

disability; (3) who was excluded from participation in or

denied the benefits of the services, programs, or activities of a

public entity, or was subjected to discrimination by any such

entity; (4) by reason of his disability.” Haberle v. Troxell,

885 F.3d 170, 178-79 (3d Cir. 2018) (brackets omitted); see

also 42 U.S.C. § 12132.

As for the first two, he sufficiently pleaded that he is a

qualified individual with a disability. See App. 78; see also

Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210-11 (1998)

(holding that a state prisoner is a “qualified individual” under

the ADA); 42 U.S.C. § 12102(1)(A) (defining “disability” to

include “a . . . mental impairment that substantially limits one

or more major life activities”).

He also sufficiently pleaded the last two, i.e., that he

was “denied . . . benefits [and] services” and “subjected to

discrimination . . . by reason of his disability.” Haberle, 885

F.3d at 178. Regulations promulgated under the ADA require

that the Commonwealth “shall ensure that inmates or

detainees with disabilities are housed in the most integrated

setting appropriate to the needs of the individuals,” 28 C.F.R.

§ 35.152(b)(2) (emphasis added), and “[s]hall not place

inmates or detainees with disabilities in inappropriate security

classifications because no accessible cells or beds are

available,” id. § 35.152(b)(2)(i). Pennsylvania’s Mental

Health Procedures Act also requires that “[w]henever a

person who is detained on criminal charges or is incarcerated

is made subject to inpatient examination or treatment, he shall

be transferred, for this purpose, to a mental health facility,”

50 Pa. Cons. Stat. Ann. § 7401(b) (emphasis added), and

32

although the Act provides that a person accused of murder

“may be subject to court-ordered involuntary treatment,” it

limits that to “a period not to exceed one year,” id.

§ 7304(g)(2). Involuntary competency restoration treatment

can only take place if it is “reasonably certain that the

involuntary treatment will provide the defendant with the

capacity to stand trial.” Id. § 7402(b). These procedural

protections are designed to avoid undue delays and safeguard

the fair and efficient functioning of the criminal justice

system, and the denial of those protections, leading to the

“unjustified institutional[ization] . . . of persons with

disabilities,” is “a form of discrimination.” Olmstead v. L.C.

ex rel. Zimring, 527 U.S. 581, 600 (1999).

Here, despite the Commonwealth’s statutory

commands and the protections they were intended to provide,

Geness was incarcerated for seven months before he was

ordered to seek treatment, was forced to wait three months

more for that order to be carried out, and—notwithstanding

that the competency evaluation declared him “unable to

recognize the role of personnel in the court system,” “unable

to recognize the different methods of trial,” “unable to

recognize various outcomes from his pending charges,” with

a “poor” prognosis for improvement, App. 197-98—Geness

was returned to prison for three years. He was then ordered

to undergo another evaluation, forced to wait another year to

receive it, and involuntarily committed for several more

years—not only without “reasonabl[e] certain[ty]” he would

attain capacity, 50 Pa. Cons. Stat. Ann. § 7402(b), but in the

face of a second evaluation that had declared him “not likely

to respond to any additional treatment interventions.” App.

203.

33

As alleged, these multiple, protracted, and inexcusable

delays in the handling of Geness’s examinations, transfers,

and motions—resulting in nearly a decade of imprisonment

and civil commitment before a hearing was finally held on his

habeas petition—are more than sufficient to state a claim

under the ADA.13 See Haberle, 885 F.3d at 179 (finding

discrimination on the basis of disability where the “disability

‘played a role in the . . . decisionmaking process and . . . had a

determinative effect on the outcome of that process’”); CG v.

Pa. Dep’t of Educ., 734 F.3d 229, 236 (3d Cir. 2013) (“To

satisfy . . . causation [under the ADA], Plaintiffs must prove

13

To the extent Geness seeks monetary damages on

his ADA claim, see App. 79, he must “adequately ple[a]d that

[the Commonwealth] acted with deliberate indifference to the

risk of an ADA violation.” Haberle, 885 F.3d at 181.

“[C]laims for compensatory damages under . . . the ADA also

require a finding of intentional discrimination,” which

requires proof, at minimum, of deliberate indifference, S.H.

ex rel. Durrell v. Lower Merion Sch. Dist., 729 F.3d 248,

261-63 (3d Cir. 2013), which may be pleaded by showing that

the defendant failed to “adequately respond to a pattern of

past occurrences of injuries like the plaintiff[’s],” Beers-

Capitol v. Whetzel, 256 F.3d 120, 136 (3d Cir. 2001).

Geness’s complaint does not do this, thus, like we did

recently in Haberle, we will grant him “the narrow

opportunity to amend h[is] complaint with respect to [his]

ADA claim, particularly [the] allegations of a history of civil

rights violations by [the Commonwealth], because deliberate

indifference was not discussed in the District Court as to that

claim,” 885 F.3d at 182 n.12.

34

that they were treated differently based on . . . their

disability.”); see also Cooper v. Kliebert, No. 15-751-SDD-

RLB, 2016 WL 3892445, at *6 (M.D. La. July 18, 2016)

(denying motion to dismiss ADA claims brought by mentally

handicapped pretrial detainees stemming from denial of

“prompt transfer of [plaintiffs] . . . from [local] jails” to

appropriate mental health facilities).

These same circumstances are also sufficient to sustain

Geness’s claim that he was “depr[ived] . . . of normal benefits

of criminal procedure and due process of law,” App. 78, both

as to his protracted incarceration without prompt transfer to a

mental health facility, and his protracted institutionalization

without a realistic prospect of trial. As for his incarceration,

Pennsylvania requires that criminal defendants suspected of

mental illness receive mental health services, 50 Pa. Cons.

Stat. Ann. § 7401(b), and it is well-established that the

extended imprisonment of pretrial detainees when they have

been ordered to receive such services violates the

Constitution.14 See Foucha v. Louisiana, 504 U.S. 71, 77

14

The Commonwealth acknowledged as much in a

recently-settled class action brought on behalf of mentally ill

inmates who claimed that the practice of continuing detention

“for more than thirty . . . days after the determination that the

[plaintiff] is unlikely to become competent,” violates the

Constitution and the ADA. See Complaint at ¶ 193, J.H. v.

Dallas, No. 1:15-cv-02057-SHR (M.D. Pa. Oct. 22, 2015). In

the settlement agreement, the Commonwealth stipulated that,

generally, excessive wait times violate the Constitution and,

specifically, its “average wait times of at least sixty . . . days .

. . fail to comply with Fourteenth Amendment due process

35

(1992) (“[It is] unconstitutional for a State to continue to

confine a harmless, mentally ill person.”); see also Trueblood

v. Wash. State Dep’t of Soc. & Health Servs., 822 F.3d 1037,

1039 (9th Cir. 2016) (“It is well recognized that detention in a

jail is no substitute for mentally ill detainees who need

therapeutic evaluation and treatment.”); Or. Advocacy Ctr. v.

Mink, 322 F.3d 1101, 1122 (9th Cir. 2003) (“Holding

incapacitated criminal defendants in jail for weeks or months

violates their due process rights . . . .”).15

guarantees.” Settlement Agreement at 3, ECF No. 35, J.H. v.

Dallas, No. 1:15-cv-02057-SHR (M.D. Pa. Jan. 27, 2016).

Those violations, moreover, appear to be widespread.

According to the County Commissioners Association of

Pennsylvania, “[c]ounties have reached a level of frustration

over the inability to address mental illness in jails due to

resource limits at the state level,” Cty. Comm’rs Ass’n of Pa.,

Comprehensive Behavioral Health Task Force: Report of

Findings and Recommendations at 5, (Aug. 7, 2016),

https://tinyurl.com/y88z8mzp, and “[t]he shortage of

psychiatric, or forensic, beds in state hospitals for county

inmates who have mental illness and developmental

disabilities has become a crisis that fails to effectively or

compassionately address human need,” Cty. Comm’rs Ass’n

of Pa., Increasing Forensic Bed Access for County Inmates

with Mental Illness (2018), https://tinyurl.com/y7d7qebl.

15

See also Hunter v. Beshear, No. 2:16-cv-798-MHT,

2018 WL 564856 (M.D. Ala. Jan. 25, 2018); Disability Law

Ctr. v. Utah, 180 F. Supp. 3d 998 (D. Utah 2016); Advocacy

Ctr. for the Elderly & Disabled v. La. Dep’t of Health &

36

As for his institutionalization, the Supreme Court

announced more than forty years ago in Jackson v. Indiana,

406 U.S. 715 (1972), that “indefinite commitment of a

criminal defendant solely on account of his incompetency to

stand trial does not square with the Fourteenth Amendment’s

guarantee of due process,” id. at 731, and the Constitution

forbids detention of the accused “committed solely on

account of . . . incapacity” any longer than “the reasonable

period of time necessary to determine whether there is a

substantial probability that he will attain that capacity in the

foreseeable future,” id. at 738. Once it has been determined

that there is no substantial probability that the defendant will

attain the capacity to stand trial, a state “must” either

“institute . . . customary civil commitment proceeding[s]” or

“release the defendant.” Id.; see also Foucha, 504 U.S. at 77

(“Even if the initial commitment was permissible, ‘it [can]not

constitutionally continue after that basis no longer exist[s].’”);

United States v. Foy, 803 F.3d 128, 142 (3d Cir. 2014)

(Krause, J., concurring) (observing that “the circumstances of

Foy’s continued civil commitment in federal custody raise

significant statutory and due process concerns”). Even if

there is a likelihood of regaining capacity, “continued

commitment must be justified by progress towards that goal,”

and while the Court has declined to impose “arbitrary time

limits,” the three-year commitment period in Jackson

“sufficiently establishe[d]” that the detainee would never be

“able to participate fully in a trial.” 406 U.S. at 738-39.

Hosps., 731 F. Supp. 2d 603 (E.D. La. 2010); Terry ex rel.

Terry v. Hill, 232 F. Supp. 2d 934 (E.D. Ark. 2002).

37

In view of this authority, the constitutional claims

Geness seeks to bring against the Commonwealth as to both

the length of his pretrial imprisonment and the length of his

civil commitment would not be futile. After his first

psychological evaluation indicated that he “remain[s]

incompetent to stand trial,” App. 198, Geness was

incarcerated for an additional three years before civil

commitment proceedings and a second examination were

even requested. And once institutionalized, Geness was left

to languish for another four years before he was granted a

hearing on his habeas petition and the charges against him

were dismissed. There is no question this exceeded the

“reasonable period of time necessary” under Jackson to

ascertain whether there was a substantial probability Geness

would attain competency in the foreseeable future.

2. Geness Did Not Unduly Delay in

Seeking Amendment.

The ground of “undue delay” also did not justify the

District Court’s denial of leave to amend. As we have

cautioned, “delay alone is an insufficient ground to deny

leave to amend,” and only delays that are either “undue” or

“prejudicial” warrant denial of leave to amend. Cureton v.

Nat’l Collegiate Athletic Ass’n, 252 F.3d 267, 273 (3d Cir.

2001).

Geness’s delay in seeking to substitute the

Commonwealth as a party was neither. His delay was not

“undue” because he raised it less than a year from the filing

of his complaint, see Lorenz v. CSX Corp., 1 F.3d 1406, 1414

(3d Cir.1993) (finding a three year lapse between filing of

complaint and proposed amendment an “unreasonable”

38

delay), and doing so at the summary judgment stage “is not

unusual,” Adams v. Gould Inc., 739 F.2d 858, 869 (3d Cir.

1984) (citing 6 C. Wright & A. Miller, Federal Practice and

Procedure § 1488, at 436 (1971)); see also Dole v. Arco

Chem. Co., 921 F.2d 484, 488 (3d Cir. 1990) (“Amendment

may be permitted at any point during the course of

litigation.”). It also would not have prejudiced Cox because,

as the District Court noted, Geness’s “proposed factual

allegations in his amended complaint . . . against the

Commonwealth . . . are identical to those in his . . . complaint

against Fayette County,” Geness, 2017 WL 1058826, at *3.

Thus, amendment would not have required of the detective

any “additional discovery, cost, and preparation to defend

against new facts or new theories.” Cureton, 252 F.3d at

273.16

In sum, neither futility nor delay justified the denial of

leave for Geness to amend his complaint to reinstate his ADA

and due process claims against the Commonwealth.

16

The prejudice inquiry considers the effect of

amendment on the existing defendants in the case, not the

new defendant proposed to be added by way of amendment.

Lorenz, 1 F.3d at 1414 (“[P]rejudice to the non-moving party

is the touchstone for the denial of an amendment.”) (emphasis

added); see also Formosa Plastics Corp., U.S.A. v. ACE Am.

Ins. Co., 259 F.R.D. 95, 99 (D.N.J. 2009) (finding no

prejudice when “Plaintiff is only seeking to add one

additional party and, as such, the current Defendants will

likely not incur significant additional resources . . . .).

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IV. Conclusion

Absurd as it may seem that Geness was detained for

nine years for a crime that may not have occurred and now

cannot pursue relief under § 1983, multipoint failures in the

criminal justice system have brought us to this juncture.

Those failures point up the essential role of each player in that

system—whether law enforcement officer, prison official,

mental health professional, defense counsel, prosecutor, or

judge—and the devastating consequences that can follow

when one or more of them fails to diligently safeguard the

civil rights with which they are entrusted. With the

complexities at the intersection of the criminal justice and

mental health systems, those risks are only compounded and

require vigilance at a systemic level. As for the case before

us, we will reverse the District Court’s denial of leave to

amend, remanding for Geness to reinstate his claim against

the Commonwealth, and we will affirm the District Court in

all other respects.

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