in the united states district court for the...

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DOUGLAS GOLDHABER, ) Civil Action Law Plaintiff ) No. 3:06-CV-00134-KRG ) v. ) ) WILLIAM HIGGINS, BRIAN CLARK, ) KEITH BOWSER, MICHAEL GEORGE, ) KENNETH BENTON, PAUL ) WYPIJEWSKI, BRADLEY E. HERSHEY, ) and the BEDFORD COUNTY PRISON ) BOARD, ) Defendants, ) Jury Trial Demanded

BRIEF IN OPOSITION TO MOTION TO DISMISS BY DEFENDANTS BEDFORD COUNTY PRISON BOARD, WILLIAM HIGGINS, BRIAN

CLARK, KEITH BOWSER, AND PAUL WYPIJEWSKI I.) FACTUAL AND PROCEDURAL HISTORY

On April 9th, 2004, the plaintiff Douglas R. Goldhaber was arrested and

charged with the offense of Driving after Imbibing. For approximately nine and

one-half (9 1/2) years prior to this date, plaintiff had been a criminal defense

attorney practicing in Bedford County, Pennsylvania; for approximately half of

this time frame, plaintiff served in the Office of the Public Defender for Bedford

County serving as the first assistant public defender of Bedford County and then as

Chief Public Defender. In the latter part of 1999, beginning of 2000, defendant

Higgins was hired as the assistant District Attorney of Bedford County. For the

first several years after defendant Higgins had been hired as assistant District

Case 3:06-cv-00134-KRG Document 23-1 Filed 08/18/2006 of 27

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Attorney of Bedford County, plaintiff and defendant Higgins socialized with one

another, with defendant Higgins confiding in plaintiff regarding business dealings

he was engaged in. Defendant Higgins had explained to plaintiff that he had at

least two (2) elderly persons, one (1) male and (1) female, who he was not related

to and who had no relatives of which he was aware. These persons lived in the

Philadelphia area and defendant Higgins had convinced him to transfer title to their

homes into his name, his wife's name and a friend of his. Defendant Higgins

further bragged how he would then borrow money against these homes, use some

of the money to make some repairs and then intended to sell the homes and keep

the money. Defendant Higgins would also brag about how he had moved these

two people to Bedford County, Pennsylvania, and was receiving their social

security monies; defendant Higgins at one point attempted to have their social

security checks directly deposited into his personal bank account. Defendant

Higgins also boasted about the female, how even though she was jewish, he had

her placed in the Everett Christian Home, and then when she passed away,

defendant Higgins had her cremated, even though it was sacreligious to her

religion, because cremation only cost several hundred dollars and a proper funeral

and burial would have been several thousand of the woman's money which he

wanted to keep for himself.


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In the November 2003 election, defendant Higgins was elected District

Attorney of Bedford County. Shortly after taking office, the relationship between

plaintiff and defendant Higgins had deteriorated to the point where defendant

Higgins would utter profanities at plaintiff in court, but while court was not in

session. At the time when defendant Higgins took office, plaintiff was actively

representing the defendant in the matter of Commonwealth vs. Barnes, No. 535 for

the year 2003, in the Court of Common Pleas of Bedford County. Prior to

defendant Higgins assuming the duties of the Office of District Attorney, a

resolution of the Barnes case had been successfully negotiated with the former

District Attorney of Bedford County but not presented to the court. Defendant

Higgins refused to honor this agreement and a jury was selected and a jury trial

was held on March 9, 2004, one (1) month prior to the plaintiff's arrest by

defendant Hershey. During one of the recesses in the trial, defendant Higgins

made statements to the plaintiff that the Honorable Daniel Lee Howsare, President

Judge of the Court of Common Pleas of Bedford County and the judge presiding

over the Barnes jury trial, was engaged in illegal, inappropriate and ex parte

conduct with regard to the Barnes case; these accusations were made by defendant

Higgins plaintiff in the presence of the defendant, a Pennsylvania State Police

Trooper, a court clerk, the stenographer, as well as those in court to watch the trial.

Plaintiff, when court was in session and on the record once again, brought the


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charges and accusations of defendant Higgins to the attention of Judge Howsare.

Defendant Higgins initially denied making such statements to which Plaintiff stood

and pointed out those persons who were in court when defendant Higgins made

these disparaging accusations against Judge Howsare at which point defendant

Higgins relented and conceded that he had made these statements. Judge Howsare

thereafter correctly chastised defendant Higgins as to his unprofessional conduct in

court. 1

Defendant Higgins harbored a great deal of animosity towards plaintiff

because of this as well other other matters which the plaintiff was involved with as

a criminal defense attorney. Defendant Higgins had been caught previously

misleading the Court in an arson case where plaintiff represented the criminal

defendant. Defendant Higgins, on behalf of the Bedford County District

Attorney's Office and as an officer of the court, stated in open court to the

Honorable Daniel Lee Howsare, President Judge of the Court of Common Pleas,

that a police report prepared by a fire investigator for the Pennsylvania State Police

concluded that the fire at issue had been set by human hands and that the evidence

supported this. It was thereafter discovered that the police report regarding this

matter never concluded that the fire had been set by human hands and there was no

factual basis for defendant Higgins baseless representations to the court; defendant

1 The jury found Mr. Barnes guilty of the charged offenses, but the jury verdict and sentence were set aside and a

new trial Ordered because of defendant Higgins using illegal and inadmissible evidence to obtain the conviction.


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Higgins was once again openly chastised for his unprofessional behavior and once

again blamed plaintiff.

Defendant Higgins and defendant Hershey, according to statements

defendant Higgins made directly to plaintiff, are friends having a social

relationship which encompassed drinking beer together at defendant Higgins home

while watching football games together and sitting together in the hot tub at

defendant Hershey's home also drinking beer. Upon information and belief,

defendant Higgins and defendant Hershey each harbored a great deal of animosity

towards the plaintiff. Upon information and belief, defendant Higgins and

defendant Hershey conspired to remove plaintiff who they viewed as a thorn in

their side in the court system. Defendant Higgins was concerned that the personal

information which plaintiff had concerning defendant Higgins, and which plaintiff

learned of directly from defendant Higgins, would get out and defendant Higgins

wanted to put plaintiff in a position where his credibility was questioned should

plaintiff ever reveal defendant Higgins business dealings with the elderly as well

as other matters which plaintiff knew and which defendant Higgins wished to hide.

The Office of the Attorney General for the Commonwealth of Pennsylvania

assumed prosecution of the charges against the plaintiff as the District Attorney's

Office for Bedford County, headed by defendant Higgins, could not prosecute the

case because of conflicts. A preliminary hearing was held on July 19, 2004, and


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the charges against the plaintiff were bound over to the Bedford County Court of

Common Pleas. Prior to the trial, defendant Higgins actively attempted to testify

on behalf of the Commonwealth but was prohibited because his testimony was

questionable and suspect. On March 2, 2005, after trial by jury, the plaintiff was

found guilty of Driving after Imbibing, and defendant George scheduled

sentencing for April 22, 2005. On April 22, 2005, defendant George sentenced

plaintiff to incarceration of no less than ninety (90) days nor one (1) day less than

five (5) years to be served at the Bedford County Correctional Institution and work

release was permitted; the transcripts of the sentencing proceeding support

plaintiff's contention that work release was addressed at the time of sentencing.

Subsequent to the sentencing of the plaintiff, defendant Higgins, for his own

personal pleasure, misappropriated the resources of Bedford Borough, Bedford

County, and the Commonwealth of Pennsylvania to stalk and harass the plaintiff.

On August 5, 2005, defendant George entered an Order revoking plaintiff's

bail because Attorney Thomas Dickey of Altoona, PA, failed to file an appeal in

plaintiff's case as he was hired to do. Plaintiff did not become aware of defendant

George's August 5, 2005, Order until the late afternoon hours of August 8, 2005;

the August 5, 2005 Order required plaintiff to surrender himself to the Bedford

County Jail no latter then 6:00 o'clock p.m. on August 9, 2005. Defendant

Higgins, even though he had been conflicted out of plaintiff's case, obtained a copy


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of this August 5, 2005, Order, and tried to personally file it in the Clerk of Court's

Office for Bedford County; defendant Higgins also had troopers of the

Pennsylvania State Police try to hunt down the plaintiff on August 8, 2005 and

during the day of August 9, 2005, even though plaintiff had until 6:00 on August

9, 2005, to report to the jail. Defendant Higgins also contacted a reporter at the

Bedford Gazette to ensure that a photographer was waiting at the Bedford County

Jail to photograph the plaintiff when he complied with the August 5, 2005, court

order.

When plaintiff reported to the Bedford County Jail as Ordered on August 9,

2005, plaintiff was immediately transported to the Clinton County Correctional

Facility where he was housed in a maximum security federal block. When the

plaintiff reported to the Bedford County Jail on August 9, 2005, a decision had

already been made by defendants Higgins, Clark, Bowser, and the Bedford County

Prison Board, to house the plaintiff outside of Bedford County even though there

was no rational basis for doing so. Defendants Higgins, Clark, Bowser and the

Bedford County Prison Board had discussions the week prior to August 8, 2005,

about housing the plaintiff out of county; the statements given to the media by

defendant Clark that plaintiff was shipped out of county because his presence

when he was initially housed at the Bedford County Jail caused an uproar among

the inmates was patently false.


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Following the plaintiff surrendering himself to the Bedford County Jail on

August 9, 2005, Attorney Thomas Dickey filed a Petition seeking the return of the

plaintiff to the Bedford County Jail. Defendant George entered an Order providing

that "[t]he Defendant's Motion to Return the Defendant to the Bedford County

Prison is denied. The Court of Common Pleas lacks authority to direct a warden

of a county prison to confine the Defendant at a specific facility. See

Commonwealth ex rel. Black v. Superintendent, State Correctional Institution

Graterford, 439 A.2d 193, 194 (Pa.Super.1981)." This order also recited that

"[C]orrespondence presented to the Court and counsel from the Bedford County

Warden reflects rational security concerns at the facility and, thus, the Warden's

actions are not an abuse of discretion." Subsequent to the entry of this Order,

defendant Clark agreed to have plaintiff returned to the Bedford County Jail if

plaintiff signed a waiver to hold the Bedford County jail and its officials harmless

should he be injured. Once defendant Clark became aware that plaintiff had

agreed to this and that plaintiff would be able to participate in the work release

program, defendant Clark then refused saying that he had changed his mind.

From August 9, 2005, when plaintiff arrived at the Bedford County Jail to

serve a sentence on a D.U.I. offense, the plaintiff was housed at four (4) different

correctional facilities over the next one hundred and five (105) days. Any

possibility of the plaintiff participating in work release was eliminated by


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incarcerating the plaintiff at the Clinton County Correctional Facility which is 125

miles from the office of the plaintiff.

Plaintiff's wife, with the aid of Attorney Dickey contacted Cambria County

Prison which agreed to house the plaintiff; the Cambria County Prison was in close

proximity to the office of plaintiff so plaintiff could work. The move to Cambria

County, and the purpose for the move, plaintiff's work, was done with full

knowledge and awareness of defendant Clark and the Bedford County Prison

Board. Plaintiff paid Cambria County for the housing thereby relieving Bedford

County of the responsibility. Plaintiff was transported from Clinton County to the

Cambria County Jail, at plaintiff's expense and with the agreement of defendant

Clark, on September 1, 2005; it is noted that defendant Clark accepted money from

plaintiff's wife to arrange the transportation. While in the Cambria County Prison,

Attorney Dickey filed the standard work release petitions. Attorney Dickey then

succeeded on plaintiff's behalf in procuring an Order from the Honorable Judge

Long of the Cambria County Court of Common Pleas permitting the plaintiff to

participate in the Cambria County work release program, and further to be under

house arrest which is a standard part of the work release program in Cambria

County for D.U.I offenders. All costs were pre-paid by the plaintiff and at no time

did the plaintiff keep any information from defendants Clark, Bowser or George.

Defendant Higgins, in collusion and conspiracy with defendants Clark, George,


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Bowser and the Bedford County Prison Board, had the plaintiff removed from the

Cambria County Prison on September 13, 2005, and then housed in the Bedford

County Jail, which defendant George previously claimed he did not have the

authority to do and which defendant Clark said was not feasible because of safety

concerns for the plaintiff and that plaintiff's presence caused an uproar among the

other inmates. Defendant Clark's position is undermined by the fact that after

plaintiff was snatched from Cambria County, plaintiff was left with many Bedford

inmates, even for periods without any supervision of any correctional officers.

While at the Bedford County Jail, defendant Clark spoke directly with plaintiff at

which point defendant Clark told plaintiff that he was going to be kept in solitary

confinement indefinitely and when asked about the multiple moves, defendant

Clark said that he did not agree to any work release or house arrest and that if

plaintiff complained about it, that defendant Clark would ship him to a State

Correctional Facility.

Defendant George during this time was engaging in direct communication

with defendant Higgins, defendant Clark and defendant Bowser regarding moving

plaintiff from Cambria County so plaintiff would effectively be denied

participation in the work release program. Defendant Higgins thereafter gave

statements to the media that he had been in contact with defendant George and that

he was responsible for moving the plaintiff around. The the plaintiff was then


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moved again from the Bedford County jail to the Adams County Adult

Correctional Complex, located in Gettysburg, Adams County, Pennsylvania, the

county where defendant George is a judge and serves as a member of the Adams

County Prison Board. Defendant George has been a member of the Adams County

Prison Board longer than he has been a judge and had previous dealings with

defendant Clark who had been an officer at the Adams County Adult Correctional

Complex. Defendant George moved the plaintiff without conducting any hearing

or issuing any order for the sole purpose of retaliating against the plaintiff because

he made lawful motions before the Cambria County Courts, and because he

defended himself in court. Defendant Higgins fully participated in the moving of

plaintiff to deny him work release even though he was to have no involvement in

plaintiff's case. Upon information and belief, the Bedford County Prison Board

fully supported and ratified the multiple moves of plaintiff which is evidenced by

the fact that aside from the plaintiff's stay in Cambria County, which plaintiff

himself paid, Bedford County was responsible for the cost of housing plaintiff at

these other facilities. All of the communication between defendant Higgins, Clark,

Bowser, George, and the Bedford County Prison Board was done ex parte, without

any hearing being held, or Order being issued to hide the actions of these

defendants.

While incarcerated at the Adams County Adult Correctional Complex, under


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the supervision of Paul Wypijewski, the deputy warden at this facility, plaintiff

was placed in solitary confinement. Upon information and belief, defendants

Higgins and Clark gave instructions to the Adams County Adult Correctional

Complex that even though plaintiff had neither violated any prison rule nor

exhibited any improper behavior, that plaintiff was to be kept in solitary

confinement, to have no contact with anyone, and be permitted out of his cell for

one (1) fifteen minute telephone call a day, generally around 6:00 o'clock a.m., and

one (1) fifteen minute shower a day. Plaintiff was forced to sign a hold harmless

waiver to escape from solitary confinement. Furthermore, while under the

supervision of defendant Wypijewski, was prohibited contact with his attorney

who had traveled from Bedford, Pa., to meet with him, was placed in an attorney

conference room told that plaintiff would be there momentarily, and then she was,

under threat of force, told to leave and that she was not allowed to see the plaintiff.

Plaintiff had submitted multiple Inmate Request Slips seeking redress for improper

action taken while at the Adams County Adult Correctional Complex. Plaintiff

had even specifically requested an Inmate Grievance Form because plaintiff's

concerns as set forth in the Inmate Request Forms were not addressed; plaintiff

received a written answer which did not include the requested Inmate Grievance

Form but simply told plaintiff that grievances must be dealt with informally. This

was not surprising given that plaintiff had received a memo dated November 17,


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2005, from the Adams County Prison stating that "[a]ny mail received which poses

a threat to the security of the institution or is deemed inappropriate by the Warden

or designee will not be distributed (e.g. , pornography, information on topics such

as drugs, weapons, prison disruptions, etc.)." This memo identified that an

envelope from Hannah Nicodemus was being returned because it contained

unauthorized artwork; Hannah Nicodemus, three (3) years old at the time, had sent

her father, the plaintiff, a birthday card, which must have been deemed a security

threat or inappropriate as set forth above.

Defendants George, Higgins, Clark, Bowser, and the Bedford County Prison

Board's unlawful retaliation effectively denied plaintiff any opportunity to

participate in any work-release program because of the distance from Adams

County Prison to Bedford County, all of which was known to defendants George,

Higgins, Clark, Bowser, and the Bedford County Prison Board and was

intentionally planned in order to hatefully punish and harm the plaintiff. The

purpose of this unlawful plan and actions was to defeat plaintiff's lawful desire, as

per his original sentencing order, to facilitate a work release program so that he

could support his family, represent his client's, and dutifully serve his sentence.

Defendants George, Higgins, Clark, Bowser, and the Bedford County Prison

Board, conspired to take the plaintiff to Adams County prison as a way to ensure

that he would do "hard time" and not be able to benefit from defendant George's


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own order which permitted work-release, and arguably house arrest. Defendant

Higgins and defendant Clark were so proud of their actions as well as those of

defendant George, that they gave statements to the media how this was done fully

with defendant George.

Plaintiff was incarcerated for fifteen (15) days beyond his lawful sentence

by defendants George and Bowser because defendants George and Bowser

considered plaintiff's lawful motion before the Cambria County Court to be a

"trick." Plaintiff has never engaged in any "tricks" and defendants George and

Bowser are fully aware of that fact. Defendant Bowser said directly to plaintiff's

wife that it was questionable whether defendant George was going to let plaintiff

out because of the "trick" plaintiff pulled in Cambria County. Defendant Bowser

purposefully delayed in the processing of the paperwork which would have

released plaintiff at the expiration of the ninety (90) day sentence. On November

4, 2005, defendant Bowser arrived at the Adams County Adult Correctional

Complex to have plaintiff sign the release papers. Defendant Bowser stated to

plaintiff that he was going right back to the office and have the paperwork faxed to

defendant George that day so plaintiff would get out at the end of the ninety (90)

days; defendant Bowser did not keep his word. It is standard practice and policy

that persons incarcerated in Bedford County for DUI offenses are released at the

expiration of the minimum sentence. It is standard practice and policy that persons


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incarcerated in Bedford County for DUI offenses, if they have employment,

participate in the work release program. It was unheard of in Bedford County until

plaintiff, that an inmate serving a DUI sentence would be moved among four (4)

prisons.

Since the plaintiff's release, defendant Higgins has used and abused his

power as a state official to harm the plaintiff in retaliation for the plaintiff speaking

out on matters of public concern as a citizen because plaintiff constructively

criticized defendant Higgins for breaking the law and fraudulently abusing elderly

citizens and conducting himself improperly in front of the Bedford County Courts.

Plaintiff, as a result of the actions of defendants Higgins, Clark, Bowser,

Wypijewski, and the Bedford County Prison Board as well as the other named

defendants, initiated this action by filing a complaint in the United States District

Court for the Western District. Defendants Higgins, Clark, Bowser, Wypijewski,

and the Bedford County Prison Board then filed a Motion to Dismiss as well as a

Memorandum of Law in Support of the Motion to Dismiss. It is noted that

defendant's Motion to Dismiss raises three (3) issues, namely Lack of Jurisdiction,

Failure to State Claims Upon Which Relief Can Be Granted, and Failure to

Implicate a Federally Protected Right; the defendant's Memorandum of Law lists

eleven (11) issues. Plaintiff will address those issues raised in the Motion to

Dismiss.


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II.) BACKGROUND

Defendants Higgins, Clark, Bowser, Wypijewski, and the Bedford County

Prison Board have filed a collective motion to dismiss, with a brief in support, and

plaintiff herein files his brief in opposition.

In their brief, these defendants have identified eleven (11) issues. A number

of the issues are related and a few appear to be based upon interpretations of the

complaint which plaintiff simply does not share or which he believes these

defendants may have misinterpreted. For example, plaintiff nowhere intends to

assert punitive damages either against any public official in his or her official

capacity nor against any public entity (Monell); paragraph four (4) of plaintiff's

complaint states this. Plaintiff incidentally nowhere seeks any form of prospective

relief. Judicial notice can be taken that punitive damages are never appropriate

against officials in their official capacity or against municipal entities by virtue of

the eleventh (11th) Amendment. Plaintiff has nowhere sued any defendant in this

action in their official capacity; it appears that defendants may be erroneously

interpreting the complaint to the contrary. Defendants cannot have their cake and

eat it too. The plaintiff's complaint is consistent with tens of thousands of similar

complaint formats filed in the United States each year, i.e., the defendants are

aware that these defendants are sued in their individual capacity. Seeking no

prospective relief, plaintiff's complaint is brought against the defendants in their


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individual capacities (or, in the case of Bedford County, as a Monell claim based

upon custom, practices, and usages in Bedford County).

The rest of the defendants issues raise challenges to the sufficiency of the

plaintiff's claims with the exception of issue number nine (9) which touches on

qualified immunity.

III.) ISSUES

A. Has plaintiff made out a 1st Amendment claim?

SUGGESTED ANSWER: Yes.

B. Has plaintiff made out due process claims?


C. Did plaintiff make out 8th Amendment claims?


D. Has plaintiff made out a 4th Amendment claim?


E. Has plaintiff alleged a Monell claim?


F. Should all the defendants be denied qualified immunity?



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III.) STANDARD OF REVIEW

In deciding a motion to dismiss, the factual allegations of the complaint

must be accepted as true. Graves v. Lowert, 117 F.3d 723, 726 (3d Cir.1997). In

particular, the court should look to whether sufficient facts are pleaded to

determine that the complaint is not frivolous and to provide defendants with

adequate notice to frame an answer. Colburn v. Upper Darby Twp., 838 F.2d 663,

666 (3d Cir.1988).A court should dismiss a complaint only if it is clear that no

relief could be granted under any set of facts that could be proved consistent with

the allegations. Graves at 726. Thus, in order to prevail, a moving party must

show beyond doubt that the plaintiff can prove no set of facts in support of his

claim that would entitle him to relief. Conley v. Gibson, 2 L.Ed.2d 80 (U.S.1957).

IV.) ARGUMENT

The defendants in paragraph five (5) of the Motion to Dismiss filed on

behalf of defendants Higgins, Clark, Bowser, Wypijewski, and the Bedford County

Prison Board claims that "[p]laintiff has not asserted any jurisdictional basis for

pendent jurisdiction over the alleged violation of Pennsylvania Tort Law."

Although defendants contend that the failure to assert any basis for pendant

jurisdiction that dismissal of any claims raised against the defendants under

Pennsylvania Tort Law is warranted. Defendants have failed to consider that the

1990 Adoption of §1367 codifies the caselaw doctrines of pendant jurisdiction and


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ancillary jurisdiction under the name of supplemental jurisdiction. 2

Title 28 U.S.C. §1367(a), provides in pertinent part, that "in any civil action

of which the district courts have original jurisdiction, the district courts shall have

supplemental jurisdiction over all other claims that are so related to claims in the

action within such original jurisdiction that they form part of the same case or

controversy under Article III of the United States Constitution. Such supplemental

jurisdiction shall include claims that involve the joinder or intervention of

additional parties." Plaintiff, by pleading violations of Pennsylvania Tort Law by

the defendants, as well as requesting relief for the defendant's violations of

plaintiff's rights under Pennsylvania Tort Law, automatically invokes this Courts

jurisdiction.

Plaintiff feels that defendants are not raising a meaningful issue regarding

lack of jurisdiction, however in fairness to the defendant's who are obviously

familiar with the terminology of 28 U.S.C. §1367(c), plaintiff will be pleased to

2 "The doctrine of "pendent" jurisdiction, which had perhaps its best known and most generous interpretation in United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130 (1966), recognizes that in our federal system a plaintiff who has a federal claim against a defendant will often find that the same wrongful conduct that grounded the federal claim has given rise to a claim under state law as well. They may be separate claims, or they may merely be different "counts" or "grounds" or "theories" in support of what is essentially a single claim. Each can be sued on in its own court system, of course, but that creates duplication and waste. If jurisdiction of the federal claim has not been conferred exclusively on the federal courts, both claims can be brought in the state court. More to the point here is that the doctrine of pendent jurisdiction permits the plaintiff to bring both claims in the federal court. The "pendent" jurisdiction doctrine permits a federal court to entertain a state claim of which it would otherwise lack subject matter jurisdiction when it is joined with a related federal claim, the two arising out of the same event or connected series of events. Under pendent jurisdiction, the federal claim acts as the equivalent of a jurisdictional crutch. In the constitutional sense, the relatedness of the two claims makes both of them part of the same constitutional "case". Pendent jurisdiction is mainly associated with the federal question jurisdiction, where the existence of a federal claim supports jurisdiction of a "pendent" state claim." Commentary on 1988 Revision by David D. Siegel


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submit an Amended Complaint in the near future.

A. First Amendment

Plaintiff has alleged in the complaint that he filed actions before various

courts, including courts in Cambria and Bedford County and before the defendant

George for which he has alleged he suffered retaliation. Plaintiff has further

alleged that he engaged in numerous actions, by and through his attorney and his

wife, to seek effectuation of the work-release provisions of his sentencing orders

(contrary to the misinformation which opposing counsel has obviously been

provided by her clients the original bench order dictated by Judge George

expressly contained work release provisions). See complaint paragraphs 1, 8

(subsections a,f,g,h,i,k, and l). These allegations, along with the allegations made

in paragraphs 9-12, 14, 19, and 21 allege retaliation for plaintiff's exercise of his

First Amendment right to undertake protected actions for redress which is clearly

defined in the aforementioned paragraphs.

The plaintiff will make no pretense that all of the allegations made in his

original complaint, and in the amended complaint which will be filed shortly, that

the plethora of unlawful actions undertaken by these defendants compose gross

violations of his First Amendment rights. First and foremost, this plaintiff asserts

a federally guaranteed right to petition for a redress of grievances through the

courts and to take other related means which need not rise to a constitutional level


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to make out a First Amendment violation. See Bristow v. Clevenger, 29

Fed.Appx. 813 (C.A.3(Pa.)). The Court in Bristow stated that "retaliation for

exercising a constitutionally protected right is, in itself, a violation of

constitutional rights; the retaliation need not be physical in nature, or rise to the

level of a substantive due process violation." Id. at 815.

B. Due Process Claims

See complaint paragraphs 17 and 22. The misconduct of these defendants

"shocks the conscience" to an egregious and extreme degree. See County of

Sacramento v. Lewis, 118 S. Ct. 1708 (1998). It has been long held that in order

to establish a civil conspiracy under § 1983, that a plaintiff must show an

agreement or a meeting of the minds to violate or deprive the plaintiff of his

constitutional rights. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158 (1970).

"The Court must accept as true all of the allegations in the pleadings and must give

the plaintiff the benefit of every favorable inference that can be drawn from those

allegations. " Panayotides v. Rabenold , 35 F.Supp. 2d 411, 419 (E.D.Pa.,1999),

citing Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir.1991).

It is well settled law that a complaint is properly dismissed only if it appears

certain that the plaintiff cannot prove any set of facts in support of its claim which

would entitle it to relief. Panayotides at 419, citing Ransom v. Terrazzo, 848 F.2d

398, 401 (3d Cir.1988). The Complaint filed on behalf of the plaintiff in this


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matter sets forth sufficient facts establishing the defendants joined forces to

deprive the plaintiff of the benefit of a work release program which had already

been granted. The actions of the defendants were done behind closed doors to try

and hide their illicit and improper actions, motivated solely by illicit and improper

reasons.

C. Eighth Amendment Claims.

See complaint paragraphs 1, 8 (subsections j and l), 13, 14, and 16. Plaintiff

has an 8th Amendment right not to be lodged unlawfully in a prison by state

officials who lack jurisdiction or authority to keep him there against his will as

they did in this case. Such misconduct constitutes cruel and unusual punishment.

Defendant contend that plaintiff's 8th Amendment claim is barred by 42 U.S.C.

§1997(e)(a), which provides limitations on some actions brought regarding prison

conditions until administrative remedies are exhausted. Although this section is

not applicable to plaintiff's claims, it is nonetheless moot, plaintiff had exhausted

the administrative remedies available to him.

D. 4th Amendment Claim.

See complaint paragraphs 13 and 15. Plaintiff has a 4th Amendment right

not to be unlawfully seized out of retaliation for exercising his First Amendment

rights and inter alia, not to be taken into custody and moved about in violation of

an existing court order for unlawful reasons.


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E. Monell Claim.

The Fourteenth Amendment protects individuals from "state deprivations of

life, liberty, or property without due process of law." Unger v. National Residents

Matching Program, 928 F.2d 1392, 1395 (3d Cir.1991). Procedural due process

analysis involves a two-step process. First, the court must determine whether

plaintiff's asserted interest is "encompassed within the fourteenth amendment's

protection of life, liberty or property." Id. Second, if protected interests are

implicated, [the court] must decide what procedures constitute 'due process of

law'." Id.

To Prevail on a substantive due process claim, a plaintiff must demonstrate

that an arbitrary and capricious act deprived him of a protected property interest.

Taylor Investment, Ltd. v. Upper Darby Township, 983 F.2d 1285, 1292 (3d

Cir.1993). Plaintiff asserts that his substantive due process rights were violated

since his termination from the Pennsylvania State Police caused harm to his

reputation that, when compounded with his termination from employment,

constituted a due process violation of his right to liberty.

Defamation of a person's reputation (or infringement of a party's liberty

interest in his reputation) is actionable pursuant to 42 U.S.C. §1983 only if "it

occurs in the course of or is accompanied by a change or extinguishment of a right

or status guaranteed by state law or the Constitution." Clark v. Township of Falls,


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890 F.2d 611, 619 (3d Cir.1989). Plaintiff claims that his First Amendment rights

were violated by the defendants as a result of the retaliation by the defendants

sufficiently establishes a Monell Claim, both substantively and procedurally.

F. Qualified Immunity

"A public official is entitled to qualified immunity from monetary liability

unless a 'reasonable public official (in the position of defendant George) would

know that his or her specific conduct violated clearly established rights." Johnson

v. Horn, 150 F.3d 276, 286 (3d Cir.1998), citing Grant v. City of Pittsburgh, 98

F.3d at 121 (3d Cir.1996). Defendants had private communications with one

another regarding plaintiff, and then made decisions and initiated actions which

deprived plaintiff of any possible opportunity to maintain his livelihood and

provide for his family. Defendants engaged in this behavior behind closed doors

to conceal his actions and attempt to hide his involvement. A reasonable public

official in the position of the defendants as they did, would without question, know

that his or her conduct violated clearly established rights.

Not only did the actions of defendants violate clearly established rights, but

the actions of the defendants may constitute criminal behavior. Title 18 Pa. C.S.A.

§5301, Official Oppression, provides that "[a] person acting or purporting to act in

an official capacity or taking advantage of such actual or purported capacity

commits a misdemeanor of the second degree if, knowing that his conduct is


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illegal, he: (1) subjects another to arrest, detention, search, seizure, mistreatment,

dispossession, assessment, lien or other infringement or personal or property

rights; or (2) denies or impedes another in the exercise or enjoyment of any right,

privilege, power or immunity." Defendants were fully aware that they were acting

illegally when they subjected plaintiff to mistreatment and denied him the exercise

or enjoyment of the rights and privileges to which plaintiff was entitled.

Furthermore, the defendant Bedford County Prison Board is believed to have

established a policy, custom and practice under the circumstances of this case

which were intentionally aimed at depriving plaintiff of his 1st, 4th, 8th, and 14th

Amendment rights as were the individual human defendants.

V.) CONCLUSION

WHEREFORE, it is respectfully requested that this Court deny the Motion

to Dismiss filed on behalf of the defendants. Furthermore, plaintiff will shortly be

filing an Amended Complaint to accommodate address the issues raised by the

defendants.

Respectfully submitted,

s/Don Bailey, Esquire Don Bailey, Esquire Attorney ID #23786 4311 N. Sixth St. Harrisburg, PA 17110 (717)221-9500


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CERTIFICATE OF SERVICE

I, Don Bailey, Esquire hereby certify that on this 18th day of August, 2006, I

caused the foregoing PLAINTIFF’S BRIEF IN OPPOSITION TO

DEFENDANTS MOTION TO DISMISS THE COMPLAINT upon defendant’s

counsel via electronic means addressed as follows:

DAVID DONALDSON, ESQUIRE 1515 MARKET STREET, SUITE 1414 PHILADELPHIA, PA 19102 MARY LOU MAIERHOFER, ESQUIRE MEYER DARRAGH, BUCKLER BEBENEK, & ECK, P.L.L.C. 120 LAKEMONT PARK BOULEVARD ALTOONA, PA 16602 Respectfully submitted,

s/Don Bailey Esquire Don Bailey, Esquire Attorney ID 23786 4311 N. Sixth Street

Harrisburg, PA 17110


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in the united states district court for the...

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