Schweitzer v. United States, CIVIL NO. 2:CV-08-1806

LEO F. SCHWEITZER, III, Plaintiff v. THE UNITED STATES, et al., Defendants

CIVIL NO. 2:CV-08-1806

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Dated: September 21, 2011

MEMORANDUM

Leo F. Schweitzer, III, filed this action wherein he asserts claims pursuant to 28 U.S.C. §2671 et seq, ("Federal Tort Claims Act"), as well as Bivens¹ claims pursuant to 28 U.S.C. § 1331. Only the Federal Defendants remain in this action. Presently pending is Defendants' motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(1)(5) and (6). For the reasons that follow, the motion will be granted and the case closed.

I. Background

The court has previously set forth the relevant procedural and factual background in this case, and will assume the parties familiarity with the priordecisions issued in this case... In addition, the Federal Defendants' brief in support of their pending motion to dismiss sets forth a thorough procedural and factual history in this matter. As such, the relevant facts will only be summarized herein.

The moving Defendants consist of 31 current or former federal employees whom Schweitzer claims violated his constitutional rights during the course of his criminal proceedings which span over 20 years. The following 17 Defendants are sued in their individual capacities; 7 Assistant United States Attorneys (Judson Aaron, Bruce Chasan, Richard Goldberg, Christopher Hall, Marsha McClellan, James Rohn and Gerald Sullivan); 4 FBI agents (Thomas Aloan, William Evans, Stephen Ford and Robert McKenney); 5 United States Probation Officers (Gail Ahbugui; Sally Keglovits, Michael Santella, Donald Miller and Christopher Moughan) and 1 DCIS agent (Robert Koons). Also included among the Federal Defendants are the following 14 current or former federal employees in their official capacities: the Attorney General and the Solicitor General of the United States; 3 U. S. court employees (William Burchill, Associate Director and General Counsel of the Administrative Office; Douglas Sisk, former clerk of the Third Circuit; and Bradford Baldus, former legal advisor in the Third Circuit); Gerald Auerbach, General Counsel for the U.S. Marshal Service; Patrick Meehan, former U.S. Attorney in the Eastern District of Pennsylvania; Judges Clarence Newcomer and Daniel Huyett, III; former U.S. Magistrate Judge Diane Welsh; William Haynes, former General Counsel in theDepartment of Defense and 3.U.S. Parole Commission employees (Scott Ruble; Teah Wedlock and John Simpson).

The extensive complaint filed by Schweitzer is organized into six "Acts." Each Act raises constitutional challenges to different events occurring during his past criminal proceedings. Specifically, he raises challenges relating to his 1985 conviction in the Eastern District of Pennsylvania before Defendant Huyett where he was convicted by a jury on multiple counts of intentionally selling faulty goods to the government by means of false statements and mail fraud. He was sentenced to 15 years in prison, and ordered to pay $427,902 in restitution. The conviction and sentence were affirmed on appeal. United States v. Schweitzer. 800 F.2d 1141 (3d Cir. 1986). Relief pursuant to 28 U.S.C. § 2255 was later denied, however the amount of restitution was reduced. United States v. Schweitzer, 1988 WL 115774 (E.D. Pa. Oct. 26, 1988). Schweitzer's appeal with respect to the denial of § 2255 relief was dismissed.

Schweitzer also raises constitutional challenges with respect to his 1995 conviction following a plea of guilty to conspiracy, making false statements and money laundering. In an effort to reduce his criminal history and lessen his sentence with respect to this conviction, Schweitzer filed a writ of corum nobis. Defendant Newcomer denied this collateral effort to nullify his 1985 conviction. The Third Circuit Court of Appeals affirmed. United States v. Schweitzer. 107 F.3d 9 (3d Cir.),cert, denied. 521 U.S. 1126 (1997). Thereafter, Newcomer sentenced Schweitzer to 41 months in prison. The conviction and sentence were affirmed on appeal.

In the complaint, Schweitzer also raises claims relating to his 2004 conviction following a guilty plea to numerous counts of mail fraud, wire fraud and making false statements. He was sentenced to 84 months in prison on these charges. The conviction and sentence were affirmed by the Third Circuit. United States v. Schweitzer, 454 F.3d 197, 202 (3d Cir. 2006).

Schweitzer filed an unsuccessful petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 challenging his 1985 conviction and sentence calculation by the Bureau of Prisons. The Third Circuit also dismissed his appeal from the district court's decision. He also filed several civil rights complaints challenging his convictions in the Middle District of Pennsylvania, the latest of which is the instant action which was transferred to this court.²

In addition to raising constitutional challenges relating to his convictions, his Writ of Error Coram Nobis and the appeals and habeas petitions he has filed, Schweitzer also alleges that federal and local officials engaged in unconstitutional conduct when they "shuttled" him between various federal prisons which he claims interfered with his ability to pursue his appellate cases. He further claims the U.S.Parole Commission improperly calculated his incarceration date, and raises violations with respect to Parole Commission decisions in 2001 and 2002, as well as the criminal proceedings leading up to his 2004 conviction.

On November 26, 2008, Schweitzer filed a lengthy complaint in the Middle District of Pennsylvania asserting civil claims relating to his alleged improper convictions, and naming many of the same Defendants herein. The complaint was dismissed on the basis that: (1) the FTCA and Bivens claims were found to be untimely; (2) a civil rights action could not be used to challenge the length of Schweitzer's sentence; and (3) the claims were barred by Heck v. Humphrey.³ See Schweitzer v. United States, et al., Civil Action 08-2146 (M.D. Pa.). On December 2, 2009, the Third Circuit Court of Appeals affirmed the dismissal.⁴ Schweitzer v. United States, et al., 354 F. App'x 601,2009 WL 4298178 (3d Cir. Dec. 2,2009).

II. Standard of Review

Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss all or part of an action for "failure to state a claim upon which relief can be granted." Fed. R.Civ. P. 12(b)(6). Under Rule 12(b)(6), a motion to dismiss may be granted only if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court finds that plaintiff's claims lack facial plausibility. Bell Atlantic Corp. v. Twombly. 550 U.S. 544, 555-56 (2007). This requires a plaintiff to plead "sufficient factual matter to show that the claim is facially plausible," thus enabling "the court to draw the reasonable inference that the defendant is liable for misconduct alleged." Fowler v. UPMC Shadyside, 578 F.3d 203,210 (3d Cir. 2009)(internal quotations marks and citation omitted). "The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, ___ U.S., __, __, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009)(quoting Twombly. 550 U.S. at 556.) If a party does not "nudge [his] claims across the line from conceivable to plausible, [the] complaint must be dismissed." Twombly. 550 U.S. at 570. "[L]abels and conclusions" are not enough, Twombly. 550 U.S. at 555, and a court '"is not bound to accept as true a legal conclusion couched as a factual allegation.'" Id., 127 S. Ct. at 1965 (quoted case omitted). After Twombly and Ashcroft. "conclusory or bare-bones allegations will no longer survive a motion to dismiss; threadbare recitals of the elements of a cause of action supported by mere conclusory statements do not suffice." Fowler, 578 F.3d at 210 (internal quotation marks and citation omitted). While the complaint "does not need detailed factualallegations ... a formulaic recitation of the elements of a cause of action will not do." Twombly. 550 U.S. at 555.

III. Discussion

In moving to dismiss the complaint against them, the Federal Defendants raise arguments pursuant to Heck v. Humphrey, statute of limitations, res judicata and/or collateral estoppel, sovereign immunity with respect to constitutional claims against the United States or its employees, immunity and insufficient service of process. The court will address each of these arguments in turn.

A. Claims barred pursuant to doctrine of Heck v. Humphrey

It is well established that a prisoner's civil rights suit for damages is barred unless he can demonstrate that his conviction or sentence has been invalidated. Heck v. Humphrey, 512 U.S. 477,486-87 (1994). Heck's favorable termination rule applies "no matter the target of the prisoner's suit ... if success in that action would necessarily demonstrate the invalidity of confinement or its duration." Wilkinson v. Dotson. 544 U.S. 74, 81-82 (2005). Although Heck involved a state prisoner seeking damages under Section 1983 for allegedly unconstitutional conduct, the principle also applies to Blivens claims against federal officials. See Holmes v. Dreyer, 2011 WL 2464687, * 1 (3d Cir. June 22, 2011).

For the most part, the allegations contained in the complaint against the Federal Defendants are arguments that they committed unlawful acts which led toSchweitzer's criminal convictions.Peppered throughout the complaint are his claims that he is innocent, was wrongly convicted, and that Defendants continued to use his "void 1985 judgment" to further extend his period of incarceration. For example, whether it is Schweitzer's claims that his constitutional rights were violated during his criminal trials due to (1) federal prosecutors and investigators using improper tactics in prosecuting him and providing false testimony; (2...