                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-12-2006

Richards v. Comm PA
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1336




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"Richards v. Comm PA" (2006). 2006 Decisions. Paper 753.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/753


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DPS-271                                               NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT

                                   NO. 06-1336
                                ________________

                             CHARLES RICHARDS,
                                         Appellant

                                        v.

              COMMONWEALTH OF PENNSYLVANIA; LINSEN
               MAYER; ALLEGHENY COUNTY JAIL DEPUTY
                WARDEN CALVIN LIGHTFOOT; TFO DANIEL
               SOROCZAK; TFO JEFF BRAUTIGAM; TROOPER
                WALKER; FRANK DREW; TROOPER SEELEY
                    ____________________________________

                 On Appeal From the United States District Court
                     For the Western District of Pennsylvania
                            (D.C. Civ. No. 04-cv-01406)
                 District Judge: Honorable Thomas M. Hardiman
                  _____________________________________

     Submitted For Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or
         Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                  June 29, 2006

  BEFORE: FUENTES, VAN ANTWERPEN and CHAGARES, CIRCUIT JUDGES

                              (Filed July 12, 2006)
                           _______________________

                                  OPINION
                           _______________________

PER CURIAM



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       Appellant, Charles Richards, appeals the District Court’s order granting judgment

in favor of defendants and dismissing the complaint he filed pursuant to 42 U.S.C. § 1983

and Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388

(1971). Upon consideration of the record and appellant’s brief, which we will consider as

an opposition to the listing of the appeal for possible summary action, we conclude that

the appeal presents no substantial issue. Thus, we will summarily affirm the District

Court’s order.

       The procedural history of this case and the details of Richards’ claims are set forth

in detail in the Magistrate Judge’s Report and need not be discussed at length here.

Briefly, Richards filed the underlying complaint on May 18, 2004, alleging that

defendants committed a host of violations when they arrested him on May 8, 2002,

searched his home and his car, and subsequently charged and prosecuted him for

possession and possession of a controlled substance with intent to deliver. More

specifically, Richards set forth claims alleging the use of excessive force, false arrest and

imprisonment, illegal search and seizure, malicious and selective prosecution,

imprisonment without reasonable bail, imprisonment without a speedy trial, loss of wages

due to imprisonment, and loss of liberty and property without due process of law. The

District Court, over Richards’ objections and through its adoption of the Magistrate

Judge’s Report and Recommendation, determined that defendants were entitled to have

their motions to dismiss and for summary judgment granted. We agree.



                                              2
       As an initial matter, the Magistrate Judge concluded that Richards’ claims of

excessive force, false arrest, illegal search and seizure, and selective prosecution were

barred by the applicable two year limitations period, and that defendants were entitled to

dismissal of those claims based on events that occurred prior to May 18, 2002. To the

extent that any of these claims can be said to have accrued on the day of Richards’ arrest

or when the searches were conducted, we can find no fault with that determination insofar

as Richards failed to demonstrate that equitable tolling was warranted. See, e.g., Hedges

v. United States, 404 F.3d 744, 751 (3d Cir. 2005) (equitable tolling is “an extraordinary

remedy which should be extended only sparingly,” and is unavailable unless the plaintiff

exercised due diligence in pursuing his claims). Moreover, Richards is not entitled to

relief in any event.

       Richards’ Fourth Amendment claims stemming from his arrest and the search of

his car and residence were nonetheless subject to summary disposition as the Magistrate

Judge correctly concluded, despite Richards’ arguments to the contrary, that the record

evidence sufficiently established the existence of probable cause to support Richards’

arrest and the subsequent searches. While, in general, “the question of probable cause in

a section 1983 damage suit is an issue for the jury,” Montgomery v. De Simone, 159 F.3d

120, 124 (3d Cir. 1998), a District Court may conclude that probable cause exists as a

matter of law, and, hence, grant summary judgment if the evidence, when viewed in the

light most favorable to the plaintiff, reasonably would not support a contrary factual



                                              3
finding. Sherwood v. Mulvihill, 113 F.3d 396, 401 (3d Cir. 1997). Additionally, “it is

irrelevant to the probable cause analysis what crime a suspect is eventually charged with

... or whether a person is later acquitted of the crime for which she or he was arrested.”

Wright v. City of Philadelphia, 409 F.3d 595, 602 (3d Cir. 2005)(internal citations and

quotations omitted). See also Sharrar v. Felsing, 128 F.3d 810, 818 (3d Cir. 1997).

       Richards also failed to satisfy his burden of establishing the discriminatory purpose

or effect of the decision to prosecute him. See United States v. Armstrong, 517 U.S. 456,

465 (1996). Dismissal of Richards’ malicious prosecution claim was likewise warranted

in light of the Magistrate Judge’s determination that defendants had probable cause to

initiate criminal proceedings against appellant, and given the lack of any allegation

suggesting that the District Attorney was unable to exercise his independent judgment in

deciding whether to prosecute Richards. See Estate of Smith v. Marasco, 318 F.3d 497,

521 (3d Cir. 2003). Furthermore, the claims against District Attorney Linsenmayer were

subject to dismissal under the doctrine of absolute immunity. See Imbler v. Pachtman,

424 U.S. 409, 431 (1976). Richards’ claims against Allegheny County and the Allegheny

County Jail fared no better as the Magistrate Judge properly concluded that appellant

failed to set forth any factual allegations regarding a policy or custom attributable to

either the county or the correctional facility as required by Monell v. New York City

Dep’t of Social Servs., 436 U.S. 658, 694 (1978).

       As noted by the Magistrate Judge, Richards’ failure to allege personal involvement



                                              4
on the part of defendant Lightfoot proved fatal to his claims against the deputy warden.

See Rizzo v. Goode, 423 U.S. 362 (1976); Rode v. Dellarciprete, 845 F.2d 1195, 1207

(3d Cir. 1988). Appellant’s claims against the Commonwealth of Pennsylvania were, of

course, subject to dismissal on the basis of Eleventh Amendment immunity. See Regents

of the University of California v. Doe, 519 U.S. 425 (1997). Finally, the Magistrate

Judge determined that Richards could not successfully maintain a cause of action against

the United States Drug Enforcement Agency (“DEA”) for a number of reasons, including,

inter alia: the fact that his complaint was devoid of factual allegations against the DEA;

that vicarious liability is not available in a Bivens action, see, e.g., Ruiz Rivera v. Riley,

209 F.3d 24, 28 (1 st Cir. 2000)(citing cases holding that respondeat superior is not a

viable theory of Bivens liability); that such an action is barred by sovereign immunity, see

F.D.I.C. v. Meyer, 510 U.S. 47 (1994); and, because administrative tort remedies were

not exhausted as required by 28 U.S.C. § 2675(a).

       Having carefully reviewed the record on appeal, we agree with the District Court’s

conclusion that defendants were entitled to have the claims against them dismissed and to

have judgment entered in their favor. Because there is little, if anything, we can add to

the analysis set forth in the Magistrate Judge’s Report and Recommendation, which was

adopted as the opinion of the District Court, we will summarily affirm the District Court’s

order of dismissal as no substantial question is presented on appeal. See Third Circuit

LAR 27.4 and I.O.P. 10.6. We will further deny appellant’s motion for appointment of



                                               5
counsel. See Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993).




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