Sawicki v. Kipphan

1

MARIANNE SAWICKI, Plaintiff, v. MICHAEL M. KIPPHAN, et al. Defendants.

CIVIL No. 1:21-CV-2031

United States District Court, M.D. Pennsylvania

January 18, 2024

MEMORANDUM

JENNIFER P. WILSON, United States District Judge.

Plaintiff Marianne Sawicki (“Sawicki”) filed her second amended complaint, alleging First Amendment retaliation violations of due process, and conspiracy against various individual defendants, the County of Huntingdon (“County), and the Borough of Huntingdon (“Borough”) for actions allegedly taken against her because of her civil rights advocacy within the county. (Doc. 85.) Each defendant has moved to dismiss the second amended complaint for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6) and immunity grounds. (Docs. 88, 90, 91, 106.) For the reasons that follow, the court will grant the motions and dismiss the second amended complaint with prejudice.

Factual Background and Procedural History

The court will begin by describing the parties and their respective roles. At all times relevant to this action Defendant Judge George Zanic (“Judge Zanic”) was the President Judge of the Court of Common Pleas of Huntingdon County. (Doc. 85, ¶ 13.) Defendant Angela Robinson (“Robinson”) was the Court Administrator for the Court of Common Pleas of Huntingdon County.^[1] (Id. ¶ 14.) Defendant Michael M. Kipphan (“Kipphan”) was the solicitor for Huntingdon-Bedford-Fulton Area Agency on Aging (“AAA”), a municipal agency. (Id. ¶¶ 7, 9.) Defendant Lori Heaton was an Aging Care Manager Supervisor at AAA. (Id. ¶ 8.) Defendant Christopher B. Wencker (“Wencker”) was an attorney who contracted with Huntingdon County to provide legal representation to indigent criminal defendants. (Id. ¶ 10.) Defendant Honorable David G. Smith (“DA Smith”) was the elected District Attorney for Huntingdon County.^[2] (Id. ¶ 11.) Finally Defendant Richard A. Wilson (“Wilson”) was the solicitor for Defendant Borough of Huntingdon (“Borough”). (Id. ¶¶ 15, 16.) County of Huntingdon (“County”) is also a Defendant. (Id. ¶ 12.)

Sawicki was a licensed attorney in the Commonwealth of Pennsylvania, practicing through the Law Office of Marianne Sawicki, LLC (“Law Office”). (Id. ¶ 13.) Sawicki retired her law license “in March 2022 because of deteriorating health.” (Id.) Prior to retirement, however, Sawicki alleges that the Law Office pursued advocacy on behalf of “individuals who suffered oppression through abuse of governmental power[,]” including advocating for “humane conditions of confinement in the state and federal prisons, religious freedom for incarcerated Muslims, racial justice, disability accommodation, adequate medical care for prisoners, and strict accountability of government agencies for their infringement of civil liberties.” (Id. ¶ 61.) Sawicki was the only attorney at the Law Office. (Id. ¶ 62.) Besides engaging in litigation, the Law Office also advised other civil rights litigators and prisoners on topics such as the Prison Litigation Reform Act. (Id. ¶ 65.) Prior to the COVID-19 pandemic, Sawicki regularly visited prisons in the surrounding area. (Id. ¶ 67.) Sawicki also spoke as a guest speaker at prisons, high school, college, and law school classes. (Id. ¶ 68.)

Sawicki begins her second amended complaint by describing her interactions with Judge Zanic prior to the fall of 2019, in his former capacity as the elected District Attorney of Huntingdon County. (Id. ¶¶ 18-40.) Descriptions of the relevant time period begin in September 2019, when Sawicki alleges that the Borough police filed criminal charges against Barbara Kissinger (“Kissinger”) for animal abuse, and the Borough also filed a civil lien against Kissinger's home. (Id. ¶¶ 42, 43.) Sawicki alleges that a hearing regarding the demolition of Kissinger's home was held without appropriate notice while Kissinger was hospitalized. (Id. ¶ 44.) Demolition of the home occurred while Kissinger was incarcerated for the criminal charges. (Id. ¶ 47.) The hearing was allegedly discussed at the Huntingdon County Courthouse by Clerk of Orphan's Court, Virginia Cooper, DA Smith, Heaton, Judge Zanic, and his deputy. (Id. ¶ 130-32.) Friends of Kissinger's contacted Sawicki regarding the situation, and Kissinger's friends retained Sawicki on November 2, 2019. (Id. ¶ 49.)

On November 3, 2019, Sawicki began requesting records from the Borough's office regarding Kissinger's home and the meeting where its demolition was discussed. (Id. ¶¶ 74, 75, 85-90.) It appears that the Borough provided all requested documents on this topic. (Id. ¶¶ 75, 85, 87.)

On November 5, 2019, Sawicki requested an escort by the Huntingdon County Sheriff's office in order to go to Kissinger's home because Sawicki believed Kissinger was in a dangerous situation. (Id. ¶ 76.) The sheriff's office informed Sawicki that they could provide the escort if a judge “gave leave.” (Id.)

Accordingly, Sawicki called Robinson and requested a time to speak to Judge Zanic. (Id.) Robinson declined to set up a time to meet, and informed Sawicki that she must bring a proposed order.^[3] (Id.) Sawicki complied with this request and returned with a proposed order. (Id.¶ 78.) Robinson showed the proposed order to Judge Zanic, who directed Sawicki to file a petition. (Id.) Sawicki did so and went to the law library to wait for a meeting with Judge Zanic. (Id.) After an unspecified amount of time, Robinson returned to Sawicki and stated that Judge Zanic would not see her and that he had contacted the Pennsylvania State Police regarding the potential hostage situation involving Kissinger. (Id. ¶ 79.) Sawicki alleges that Robinson and Zanic agreed to deny Sawicki an opportunity to speak with Judge Zanic. (Id. ¶ 133.) Later that day, Sawicki met with Kissinger twice and gave Kissinger clothing to wear to court. (Id. ¶¶ 81, 84.)

On the morning of November 6, 2019, Sawicki and Wilson had a telephone conversation regarding the civil lien case against Kissinger's home, during which she advised Wilson of the Borough's potential liability. (Id. ¶ 89.) Sawicki alleges that after this call, Wilson called Judge Zanic and DA Smith to get advice on what to do regarding the Borough's potential liability. (Id. ¶ 134.) In the afternoon of November 6, 2019, Kissinger officially retained Sawicki to represent her in both the criminal and civil lien case. (Id. ¶ 92.) Thus, Sawicki entered an appearance on behalf of Kissinger on November 6, 2019, on the criminal docket. (Id. ¶ 93.) No attorney was listed for Kissinger prior to Sawicki's entry of appearance. (Id. ¶ 93).^[4] Sawicki also filed a waiver of appearance at arraignment on Kissinger's behalf. (Id.)

On November 7, 2019, Sawicki appeared at Kissinger's arraignment on Kissinger's behalf, but Kissinger was initially not present because Sawicki told her that she did not need to attend. (Id. ¶¶ 94, 96.) However, Wencker and Heaton contacted Kissinger and threatened her with arrest unless she came to the courthouse, and they also told Kissinger that Wencker was Kissinger's attorney of record, not Sawicki. (Id. ¶¶ 96, 136.) Kissinger then came to the courthouse, where Sawicki attempted to speak with Kissinger, but was physically blocked from speaking with her by an employee sent by DA Smith. (Id.) After the arraignment, Sawicki went to the AAA office to try to speak with Heaton, who was unavailable. (Id. ¶ 97.) Sawicki left a letter with Kipphan instead, which Sawicki alleges explained Kissinger's civil lien case. (Id. ¶ 98.) Additionally, during the lunch break that day, Zanic called the Disciplinary Board of the Supreme Court of Pennsylvania (“Board”) to lodge a disciplinary complaint against Sawicki and enlisted Wencker to submit a statement in the action against Sawicki's law license. (Id. ¶¶ 137, 148.) Sawicki was unaware of this phone call at the time. (Id. ¶ 158.)

Sawicki met with Kissinger on November 9, 2019, and confirmed that she wanted Sawicki to represent her in both the criminal and lien cases. (Id. ¶¶ 101.) Sawicki entered her appearance in the civil case on November 12, 2019, and handled the hearing scheduled for that day. (Id. ¶ 102.) Thereafter, Sawicki began litigating the lien case. (Id. ¶ 107.)

Sawicki then wrote to Wencker on November 14, 2019, requesting his file on Kissinger's criminal case. (Id. ¶ 104.) On November 18, 2019, Sawicki filed a complaint with the Board about Wencker's conduct during Kissinger's criminal case. (Id. ¶ 108.) On November 19, 2019, Sawicki filed an investigation request against Judge Zanic with the Judicial Conduct Board. (Id. ¶ 109.)

Sawicki served formal discovery requests on Wilson on November 25, 2019, and notified the Borough of her intent to serve a subpoena. (Id. ¶ 111.) Wilson sought assistance from DA Smith, who then sought to intervene and filed a motion to quash subpoena. (Id. ¶¶ 112, 113.) Sawicki continued to litigate the case, filing briefs in opposition to the motion to quash filed by DA Smith and a motion to stay proceedings filed by the Borough. (Id. ¶¶ 114116.)

During the time period of December 2 through 6, 2019, Wilson, Heaton, and Wencker all tried to convince Kissinger to stop litigating the civil lien case and remove Sawicki as her attorney. (Id. ¶140.) On December 10, 2019, Judge Zanic and Robinson allegedly persuaded Public Defender Frederick Gutshall to “cooperate in the appointment of county-paid counsel[,]” even though Sawicki was her counsel, there was no application for a public defender, and Kissinger was financially ineligible for a public defender. (Id. ¶ 141.)

Sawicki alleges that Judge Zanic called Paul Killian of the Board to verbally complain about Sawicki, and falsely accuse her of professional misconduct. (Id. ¶¶ 147-49.) Sawicki contends that Judge Z...