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United States District Court, Southern District of New York
November 6, 2014
JANICE BEST, Plaintiff,v.DUANE READE DRUGS, Defendants
Janice Alise Best, Plaintiff, Pro se, New York, N.Y. USA.
For Duane Reade Drugs, Defendant: Joel Lester Finger, LEAD ATTORNEY, Christine Lee Hogan, Littler Mendelson, P.C. (NYC), New York, N.Y. USA.
Colleen McMahon, United States District Judge.
Plaintiff Janice Best (" Best"), brings this action against Defendant Duane Reade Drugs (" Duane Reade"). Best seeks relief pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § § 2000e et seq . (" Title VII"), the Age Discrimination in Employment Act of 1967, 29 U.S.C. § § 621 et seq . (the " ADEA"), and the Americans with Disabilities Act of 1990, 42 U.S.C. § § 12112 et seq . (the " ADA").
Currently before the Court is Duane Reade's motion for partial dismissal pursuant to Fed.R.Civ.P. 12(b)(1). For the following reasons, Duane Reade's motion is granted except as to Best's retaliation claim, and is denied as to that claim.
Best was an employee of Duane Reade. On January 2, 2013, Best dual-filed a complaint with the New York City Commission on Human Rights (" NYCCHR") and the Equal Employment Opportunity Commission (" EEOC") against Duane Reade, and Anthony Hussein (Best's manager at Duane Reade), for their alleged disability-related discriminatory conduct in violation of Title 8 of the Administrative Code of the City of New York (" Title 8"), and the ADA. See Affirmation of Joel L. Finger, Exhibit 3, Determination and Order After Investigation, dated January 23, 2014 (the " NYCCHR Order"), at 1, n.1; Affirmation of Joel L. Finger, Exhibit 1, Verified Complaint, dated January 2, 2013 (the " NYCCHR Complaint"), at 1-2.
The allegations asserted by Best in the NYCCHR Complaint were summarized by the NYCCHR in the NYCCHR Order:
In May of 2012, [Best] became disabled. On May 30, 2012, [Best] provided Respondent Hussein with a doctor's note that indicated that she was restricted from performing certain physical activities and told him that she could not perform the duties of the cashier position due to her disability and concomitant limitations. Respondent Hussein took the note but brushed [Best] off telling her, in sum and substance, " to go do whatever she wanted around the store." [Best] asked Respondent Hussein to allow her to perform other job activities but he refused. On June 11, 2012, [Best] received a phone call from Respondent Hussein informing her that her employment had been terminated. [Best], a disable woman, alleges that Respondents discriminated against her in her employment by failing to provide her with a reasonable accommodation for her disability in violation of Title 8 of the Administrative Code of the City of New York, and have injured her thereby. The Complaint did not charge retaliation for the termination of [Best's] employment.
NYCCHR Order at 1.
Based on the allegations asserted by Best, the NYCCHR Complaint charged the following:
1. Complainant charges that Respondents have discriminated against her in the terms, conditions, privileges of her employment by terminating her employment because of her disability in violation of Title 8 of the Administrative Code of the City of New York, and have injured her thereby. NYCCHR Complaint ¶ 7 (emphasis added).
2. Complainant charges that Respondents have discriminated against her in her employment by failing to accommodate Complainant's disability in violation of Title 8 of the Administrative Code of the City of New York, and have injured her thereby. Id. ¶ 8 (emphasis added).
3. Complainant further alleges that Respondent has violated Title I of the [ADA] on the basis of her disability , and hereby authorizes the [NYCCHR] to accept this verified complaint on behalf of the [EEOC], subject to the statutory limitations contained in the [ADA]. Id. ¶ 9 (emphasis added).
As to Best's Title 8 claim, the NYCCHR held that, in response to Best's request, Duane Reade and Hussein provided her with a reasonable accommodation of her shoulder disability, by permitting her to do alternative work such as " facing" and arranging products on the shelves. NYCCHR Order at 2.
The NYCCHR also dismissed Best's ADA claim, finding that the record clearly showed that Best was not terminated because of her shoulder disability. Instead, the NYCCHR determined that Duane Reade asserted a legitimate non-discriminatory reason for terminating Best -- she violated Duane Reade's attendance policy by calling out of, or being late to, work without an excused reason on fifty-two occasions within her first year of employment. Id. at 3.
The NYCCHR further found that, upon the facts alleged, Best may have been attempting to assert a claim for retaliation, although such a claim was not expressly alleged in the NYCCHR Complaint. Id. Nevertheless, citing reasons similar to those discussed in its analysis of Best's ADA claims, as well as an overall lack of evidence in the record, the NYCCHR dismissed any such retaliation claim. Id. at 3-4.
After its investigation, the NYCCHR determined there is " no probable cause to believe that [Duane Reade and Hussein] engaged in the unlawful discriminatory practices alleged in the Complaint." Id. On January 23, 2014, Best's NYCCHR Complaint was dismissed in its entirety. Id. at 4.
On April 4, 2014, the EEOC issued Best a " Dismissal and Notice of Rights" letter. See Affirmation of Joel L. Finger, Exhibit 2, Dismissal and Notice of Rights, dated April 1, 2014, (the " EEOC Right to Sue Letter"). The EEOC " adopted the findings of the state or local fair employment practices agency that investigated [the] charge, " and closed Best's file. Id. at 1.
On April 8, 2014, Best initiated this action and filed a Complaint for Employment Discrimination (the " Initial Complaint"), asserting claims solely under the ADA. initial Complaint, at 1. Best alleged that on May 31, 2012, Duane Reade discriminated against her based on her disability, or perceived disability, relating to her right shoulder. Id. at 2-3. Best further alleged that after she presented Duane Reade with a note from her doctor that requested she refrain from lifting heavy objects, Duane Reade failed to accommodate her disability. These allegations, unsurprisingly, mirror those alleged in the NYCCHR Complaint.
On May 29, 2014, Best filed an Amended Complaint for Employment Discrimination (the " Amended Complaint"), bringing additional claims against Duane Reade pursuant to Title VII and the ADEA. Amended Complaint, at 1. Best alleged that Duane Reade, in addition to discriminating against her on the basis of her disability, also discriminated against her on the basis of race (" Black"), gender/sex (" Female"), and age (" 1-18"). Id. at 3. Best further alleged additional discriminatory conduct (that is, in addition to Duane Reade's failure to accommodate her disability), such as " [t]ermination of my employment, " " [u]nequal terms and conditions of my employment, " and " [r]etaliation." Id. at 2-3.
On August 28, 2014, Duane Reade moved to dismiss Best's newly-asserted Title VII and ADEA claims pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction based on Best's failure to exhaust available administrative remedies.
On a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), the plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence. See Aurecchione v. SchoolmanTransp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005). Although the Court must accept as true all material factual allegations in the complaint, it will not draw " argumentative inferences favorable to the party asserting jurisdiction." Atl. Mut. Ins. Co. v. Balfour Maclaine Int'l Ltd., 968 F.2d 196, 198 (2d Cir. 1992). In resolving a motion to dismiss for lack of subject matter jurisdiction, the Court may refer to evidence outside the pleadings. See Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).
I. Best's Title VII race and gender claims and her ADEA claim are dismissed because Best failed to exhaust available administrative remedies.
Duane Reade argues that Best's race and sex/gender discrimination claims, brought pursuant to Title VII, and her age discrimination claims, brought pursuant to the ADEA, must be dismissed for lack of subject matter jurisdiction because Best failed to exhaust administrative remedies. Def.'s Mem. at 4. Duane Reade is correct. Those claims are dismissed with prejudice, because it is now too late for Best to exhaust.
Under Title VII and the ADEA, " a litigant must exhaust available administrative remedies in a timely fashion" as a prerequisite to gaining access to the federal courts. Briones v. Runyon, 101 F.3d 287, 289 (2d Cir. 1996); see also Belgrave v. Pena, 254 F.3d 384, 386 (2d Cir. 2001). The exhaustion requirement provides the agency with notice of an employee's complaint and the opportunity to investigate the matter and take remedial action, where necessary. Stewart v. INS, 762 F.2d 193, 198 (2d Cir. 1985). " The purpose of the notice provision, which is to encourage settlement of discrimination disputes through conciliation and voluntary compliance, would be defeated if a complainant could litigate a claim not previously presented to and investigated by the EEOC." Miller v. Int'l Tel. & Tel Corp., 755 F.2d 20, 26 (2d Cir. 1985).
A plaintiff may not file an action in federal court until the administrative EEOC process has been completed and fully exhausted. See 29 C.F.R. § 1614.110. " Such exhaustion requires that the claimant present to the pertinent administrative agency...all claims that [she] will seek to pursue in court." Dixon v. Krasdale Foods, Inc., No. 13-CV-3045, 2013 WL 6334439, at *3 (S.D.N.Y. Dec. 4, 2013). Obtaining a right-to-sue letter from the EEOC is a statutory prerequisite to commencing a federal suit under Title VII and the ADEA, and " such a requirement applies with equal force to pro se litigants." Benardo v. Am. Idol Prods., Inc., No. 10-CV-6487, 2010 WL 4968177, at *2 (S.D.N.Y. Dec. 6, 2010); see Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 522-26 (2d Cir. 1996). Accordingly, if a plaintiff fails to properly exhaust available administrative remedies, he is barred from seeking relief in federal court. See Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001).
Duane Reade argues that Best failed to exhaust her Title VII and ADEA discrimination claims because: (1) these claims were not included in the original EEOC charge; and (2) they are not based on conduct subsequent to the original EEOC charge that is " reasonably related" to the conduct alleged in the original EEOC charge.
Title VII and the ADEA's administrative exhaustion requirement mandates that district courts have " jurisdiction to hear [discrimination] claims that either are included in an EEOC charge or are based on conduct subsequent to the EEOC charge which is 'reasonably related' to that alleged in the EEOC charge." Butts v. City of New York Dept. of Hous., 990 F.2d 1397, 1401 (2d Cir. 1993).
Claims are " reasonably related" where (1) they would fall within the scope of the EEOC investigation which reasonably could be expected to arise from the original charge of discrimination; (2) the later claim alleges that the employer is retaliating against the plaintiff for filing the original EEOC charge; or (3) the plaintiff " alleges further incidents of discrimination carried out in precisely the same manner alleged in the EEOC charge." Id. at 1402-03.
In determining whether a plaintiff's claims are reasonably related, the primary focus is " on the factual allegations made in the [division complaint] itself, describing the discriminatory conduct about which plaintiff is grieving." Deravin v. Kerik, 335 F.3d 195, 201 (2d Cir. 2003) (internal quotations omitted). " Generally, claims based on 'a wholly different type of discrimination' than initially asserted in the EEOC charge will not be permitted to be brought into federal court." Alonzo v. Chase Manhattan Bank, N.A., 25 F.Supp.2d 455, 458 (S.D.N.Y. 2005) (quoting Peterson v. Ins. Co. of N.A., 884 F.Supp. 107, 109-10 (S.D.N.Y. 1995); see Dahbany-Miraglia v. Queensboro Cmty. Coll., No. 03-CV-8052, 2004 WL 1192078, at *5 (S.D.N.Y. May 27, 2004) (claims premised on entirely different types of discrimination are not considered reasonably related); Burrell v. City Univ. of New York, 995 F.Supp. 398, 407-08 (S.D.N.Y. 1998).
Duane Reade asserts, correctly, that in addition to the absence of an express claim of discriminatory conduct related to Best's race, sex/gender, or age in the NYCCHR Complaint, the NYCCHR did not investigate such conduct, nor could it have been expected to do so, since discrimination based on these attributes was not fairly suggested by her disability claim.
Best's Title VII and ADEA claims are not " reasonably related" to the disability-related discriminatory conduct charged in the NYCCHR Complaint; they are premised on entirely different types of discrimination.
There is nothing in the NYCCHR Complaint that would give the NYCCHR, or the EEOC, reasonable notice that claims of race, sex/gender, or age discrimination should be investigated. The conduct complained of in the Amended Complaint does not fall within the scope of the NYCCHR investigation, nor is it a " further incident of discrimination carried out in exactly the same manner" as that alleged in the NYCCHR Complaint. See Dahbany-Miraglia, 2004 WL 1192078, at *6-7; Burrell, 995 F.Supp. at 407-08; McNealy v. N.Y. Public Library, No. 96-CV-3023, 1997 WL 607548, at *3 (S.D.N.Y. Oct. 1, 1997).
Best cannot now exhaust her administrative remedies. The last possible day in which she could have experienced any form of discrimination was her last day of work -- June 11, 2012. An employee alleging discrimination under Title VII in a dual-filing state must file her administrative claim no later than 300 days after she experienced discrimination. See Pilgrim v. McGraw-Hill Companies, Inc., 599 F.Supp.2d 462, 473 (S.D.N.Y. 2009). It is far too late for Best to exhaust her unexhausted claims now; therefore, they are dismissed with prejudice.
II. Best's retaliation claims are reasonably related to those asserted in the NYCCHR Complaint and are thus exhausted.
To the extent that Duane Reade seeks to dismiss Best's newly-asserted retaliation claims, its motion is denied.
Generally, claims of retaliation " postdating the submission of an EEOC charge are excepted from the requirement that the claim must first have been made in the EEOC charge." Ibraheem v. Wackenhut Servs., Inc., 09-CV-5335, 2014 WL 1873393, at *7 (E.D.N.Y. May 9, 2014); see Joseph v. Price Costco, 100 Fed.Appx. 857, 857-58 (2d Cir. 2004). But this is not the case here because Best was terminated by Duane Reade before she filed an EEOC charge.
However, numerous courts in this Circuit have found retaliation claims arising out of retaliatory conduct occurring prior to the employee's filing of an EEOC charge to be reasonably related to claims of discrimination formally included in the charge where the charge includes enough factual allegations to alert the EEOC to the possibility that the employee was subjected to retaliation. See, e.g., Ridgway v. Metro. Museum of Art, No. 06-CV-5055, 2007 WL 1098737, at *5 (S.D.N.Y. Apr. 10, 2007); Rieger v. Orlor, Inc., 427 F.Supp.2d 105, 115 (D. Conn. 2006); see also Barriera v. Bankers Trust, No. 98-CV-3641, 2003 WL 22387099, at *4-5 (S.D.N.Y. Oct. 20, 2003).
While courts have also found such pre-EEOC charge retaliation claims not to be reasonably related to claims explicitly made in the charge, these cases have generally involved charges that were devoid of any reference to a retaliatory motive or any allegation that the plaintiff had engaged in a protected activity. See, e.g., Mathirampuzha v. Potter, 548 F.3d 70, 76-78 (2d Cir. 2008); Moguel v. Covenant House/New York, No. 03-CV-3018, 2004 WL 2181084, at *7 (S.D.N.Y. Sept. 29, 2004); Cordoba v. Beau Deitl & Assocs., No. 02-CV-4951, 2003 WL 22927874, at *10 (S.D.N.Y. Dec. 2, 2003); Bailey v. Colgate-Palmolive Co., No. 99-CV-3228, 2003 WL 21108325, at *13 (S.D.N.Y. May 14, 2003).
The retaliation claims are still exhausted if the EEOC charge put the agency on notice as to the existence of such a claim, which, in this case, it clearly did. See, e.g., Williams v. N.Y.C. Housing Auth., 458 F.3d 67, 71 (2d Cir. 2006); Jenkins v. N.Y.C. Transit Auth., 646 F.Supp.2d 464, 473 (S.D.N.Y. 2009). It cannot be said that Best's NYCCHR Complaint was devoid of any reference to retaliation because the NYCCHR specifically evaluated Best's alleged retaliation claims, as evident by the NYCCHR Order. Therefore, Best's retaliation claims are " reasonably related" to those asserted in the NYCCHR Complaint. Consequently, Duane Reade's motion to dismiss these claims on grounds of exhaustion is denied.
For the foregoing reasons, Duane Reade's motion for partial dismissal is granted in part and denied in part. The Clerk of the Court is directed to remove Docket No. 16 from the Court's list of pending motions.
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Courtesy: RE/MAX Premier Choice Broker Phone: 614-436-0330 Tristam Griffith 614-436-0330
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New construction in beautiful Jerome Village. This gorgeous home features a first floor private study with french doors. Furniture island kitchen with built-in stainless steel appliances, upgraded cabinetry with crown moulding, ceramic tile backsplash, gleaming granite counter tops, hardwood floors and morning room all open to the casual living area and two story family room with corner gas fireplace. Upstairs you'll find the owners suite with tray ceiling, spa like bathroom with double bowl vanity, soaking tub, separate shower, water closet and HUGE walk-in closet. 3 additional bedrooms that share a hall bathroom with double bowl vanity and laundry room. Full unfinished basement and 3 car garage.
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Gorgeous custom built home on 5.12 acre lot, great for entertaining! Large great room with fireplace, vaulted ceiling, and huge bar area off kitchen. 2 owner's suites, one is upstairs w/private veranda, and an enormous bathroom/walk-in closet. Main level owner's suite with bath and walk-in closet. Large open kitchen with nice patio/bar area outside. Office off kitchen. Spacious finished lower level rec room with wet bar, and additional large bedroom, and two smaller rooms for storage/work areas. Attic with 912 sq. ft could be finished off. Additional home, 1,478 sq ft. at 11270 Jerome Rd, frontage on 1 acre. Currently rented on month to month basis. Could make a great in-law home, or rental property. Can be sold separately but main house must be sold first. Seller related to list agent.
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Courtesy: Keller Williams Consultants Realty Broker Phone: 614-932-2000 Timothy Reil 614-932-2000
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Custom -Built on Great Private Wooded Walkout Lot in Gated Community...First Floor Master + Guest Room / High-End Finishes / Huge Gourmet Kitchen / Beamed Ceilings / Bonus Room on Upper Level / Tremendous Mudroom, Locker-Bench Area / Lower Level Includes Rec Area, Bar, Workout Room, Bedroom and Full Bath / Deck and Patio System Overlooks Play Area and Wooded Lot / Transferable Warranties From Coppertree Builder... Call for Floorplan
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Courtesy: Superior One Realty Broker Phone: 614-873-5008 Ronald Winn 614-402-1499
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Recently remodeled cape shows like a new home on over an acre lot with mature trees. The kitchen features new custom cabinets w/granite counters and stainless steel appliances. New flooring, fresh paint, interior trim and doors. New HVAC, Hot water heater, mini split heating and cooling system in bonus room. New insulation and sump pump installed in crawl space. 30' x 40' detached outbuilding is insulated and heated. Owner is a licensed real estate broker in Ohio.
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4 bedrooms, 3.5 half baths, large owners suite with oversized shower. Deluxe kitchen with large island and chimney range hood. 9FT ceilings on first floor.
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Wow!!! Check out the pictures of this house!! Three bedrooms, 2.5 baths, large kitchen, large family area, dining/living room all on the first floor. Kitchen has white cabinets and stainless steel appliances, laundry and a pantry. Upstairs has three bedrooms and the 2 full baths. Master bedroom has a full bathroom, walk in closet, and a plant ledge. New carpet throughout the home, freshly painted too. BUT WAIT TILL YOU SEE THE FINISHED BASEMENT. An add'l 438 more living area including a TV area with surround sound. Home has tons of storage, including an attic area above the garage with drop down steps. Blue Stone patio with pergola. There are upgrades all over this home! Close to Scotts, Honda and Dublin. Trust me, you'll want to see this home and you can be in by the Holidays!
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BRAND NEW ROOF ON 11/21!! This 3 bedroom home offers an open floor plan w/1ST FLOOR MASTER & laundry room! Large loft upstairs could be converted into 4TH BEDROOM! Entire house has been updated from top to bottom. The kitchen offers granite, stainless steel appliances, custom built island, tile backsplash, & all new fixtures.You even have your own coffee/wine/tea bar. Master bathroom has all new walk in tiled shower, tile flooring, vanity, & new light fixture. This quiet neighborhood is a perfect location, w/no through traffic due to only one way to enter & exit. New updates: vinyl fencing, garage door, fixtures, flooring, interior doors, paint, trim, ext. doors, fireplace mantle & tile, blinds, toilets, stamped concrete patio,shed,landscaping. Must See! Nothing to be done! MOVE IN READY!
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Beautiful CUSTOM BUILT One Owner home with all the amenities in Plain City. Huge Finished BONUS RM ADDS 400 SQ.FT. of total living space!! Great OPEN CONCEPT FAMILY ROOM & KITCHEN are perfect for Entertaining. Nice high ceilings, new carpet, new deck, great landscaping, huge country Cul-de-Sac lot(.45 acre), Lemonade front porch, lot's of storage, 2nd floor laundry, plus 1st floor mud room, over sized garage, country living yet close to all city conveniences. Immediate possession at closing. Easy access to ROUTE 33, I-270, Marysville & Dublin !!WELCOME TO 9745 CAMARILLO CIRCLE!!
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Gorgeous year old Custom built home by THE premier custom builder.Located in Jerome Village. Over 4179 sqft of living area. This stunning five level split offers granite counter tops awesome kitchen With Wulf gas cooktop and Faber vent hood. Great room with ledger stone surround and large eating area. Huge walk in pantry.Beautiful hardwoods and imported tile thru out home. Large private office with lots of storage. Family room on level two for another great place to enjoy. The oversize master and awesome bath are spectacular with huge walk in closet. Large landscaped private patio with fire pit, BBQ area and cement under pad ready for a pergola.Garage features a separate workshop area and access door to backyard
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This home has been completely remodeled. New kitchen includes, cabinetry, sink, counter tops, flooring and ceiling fan. HUGE living room with fireplace. New carpeting and flooring throughout the home and fresh paint. Two new bathrooms. Central air and duct work added in 2016. 1st floor owners suite and 1st floor laundry. Enjoy your days on the front porch or screened in porch. Garage rewired for a mechanics dream garage....
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OWNER WANTS OFFER>>>> Seller is motivated!This home has been completely remodeled. New kitchen includes, cabinetry, sink, counter tops, flooring and ceiling fan.HUGE living room with fireplace.New carpeting and flooring throughout the home and fresh paint. Two new bathrooms. Garage is wired for weld shop.Central air and duct work added in 2016. 1st floor owners suite and 1st floor laundry. Enjoy your days on the front porch or screened in porch.
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November 7, 2012
RONALD G. PYLE II,PLAINTIFF,v.FIRST NATIONAL COLLECTION BUREAU, DEFENDANT.
FINDINGS AND RECOMMENDATIONS THAT PLAINTIFF'S COMPLAINT BE DISMISSED WITH PREJUDICE (Docket No. 5)
On February 27, 2012, Plaintiff Ronald G. Pyle II ("Plaintiff") filed this action against Defendant First National Collection Bureau ("Defendant"). (Doc. 1.) On April 23, 2012, the Court dismissed Plaintiff's complaint without prejudice and with 30 days leave to amend. Plaintiff filed a first amended complaint ("FAC") on May 17, 2012.
For the reasons set forth below, the Court RECOMMENDS that Plaintiff's FAC be DISMISSED with prejudice and without leave to amend.
Plaintiff brings the FAC pursuant to Title 15 Section 1681 for violation of the Fair Credit Reporting Act ("FCRA"). (Doc. 5.) Plaintiff alleges that in July 2011, he received his credit report from TransUnion, a major credit-reporting agency, and "discovered an entry by an entity that was unknown within the credit report." (Doc. 5, ¶ 9.) Upon examination, Plaintiff determined that Defendant "had obtained Plaintiff's private consumer credit report" in November 2009 "without [Plaintiff's] expressed consent or permissible purpose." (Doc. 5, ¶ 10 (emphasis omitted).)
Plaintiff alleges that Defendant was "in violation of the FCRA, 15 U.S.C. § 1681b[,] by obtaining Plaintiff's credit report without a permissible purpose from TransUnion, because at or about the time that Defendant obtained Plaintiff's credit report, none of the specific and strictly limited circumstances granting permissible purpose under section 1681b applied to Defendant." (Doc. 5, ¶ 12 (emphasis omitted).)
Plaintiff further alleges that "[t]he FCRA in 15 U.S.C. § 1681a(r)(4) defines what accounts have permissible purposes to obtain consumer reports." (Doc. 5, ¶ 13.) Plaintiff contends that the permissible accounts have "the same meaning as in section 1693a," which states that "the term 'account' means a demand deposit, savings deposit, or other asset account (other than an occasional or incidental credit balance in an open end credit plan as defined in section 1602(i)(1)." (Doc. 5,
¶ 13.) Plaintiff asserts "[t]herefore the open-ended credit plan with occasional or incidental balances, ie: credit cards[,] are clearly excluded from the permissible purposes." (Doc. 5, ¶ 14 (emphasis omitted).) Plaintiff alleges that "Defendant was heard to say, during Plaintiff's attempt to mitigate the dispute on 2-10-2012, that [Defendant] had a Providian credit card account in the Plaintiff's name, and the account was passed to another debt collector." (Doc. 5, ¶ 16.) As such, Plaintiff contends that he had no "contractual obligation or any expectation to pay the Defendant," and that Defendant had no "permissible purpose under the FCRA to obtain [Plainitff's] private credit files." (Doc. 5, ¶ 17.)
Plaintiff's FAC alleges one count for violation of the FCRA through "willful non-compliance" by Defendant, and seeks statutory damages in the amount of $1,000 and costs. (Doc.5, ¶¶ 18-25.)
A. Screening Requirement
In cases where the plaintiff is proceeding in forma pauperis, the Court is required to screen each case and shall dismiss the case at any time if the Court determines that the allegation of poverty is untrue or the action or appeal is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). If the Court determines that the complaint fails to state a claim, leave to amend may be granted to the extent that the deficiencies of the complaint can be cured by amendment. Lopez
v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc).
B. Legal Standard for Screening
In determining whether a complaint fails to state a claim, the Court uses the same pleading standard used under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 557). "[A] complaint [that] pleads facts that are 'merely consistent with' a defendant's liability . . . 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557). Further, although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Id. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (quoting Twombly, 550 U.S. at 555).
C. Plaintiff Fails to Plead a Valid Claim for Violation of the FCRA
Plaintiff's FAC alleges one cause of action for willful violation of the FCRA by Defendant for accessing Plaintiff's credit report without his express consent or permissible purpose. (Doc. 5, ¶¶ 10, 12, 18-25.) Plaintiff seeks statutory damages in the amount of $1,000. (Doc. 5, p. 4.)
1. Legal Standard
Under the FCRA, "civil liability for improper use and dissemination of
credit information may be imposed only on a consumer reporting agency
or user of reported information who willfully or negligently violates
the FCRA." Rush v. Macy's New York, Inc., 775 F.2d 1554, 1557 (11th
Cir. 1985) (citing 15 U.S.C. §§ 1681n and 1681o). "The FCRA imposes civil
liability on . . . users of information that obtain credit reports of
consumers for purposes not specified in § 1681b."
Hinkle v. CBE Grp., No. CV 311--091, 2012 WL 681468, at *2, (S.D. Ga. Feb.
3, 2012) (citation omitted) (report and recommendation adopted, No. CV
311-091, 2012 WL 676267 (S.D. Ga. Feb. 29, 2012)).
Section 1681b(f) provides as follows:
A person shall not use or obtain a consumer report for any purpose unless--
(1) the consumer report is obtained for a purpose for which the consumer report is authorized to be furnished under this section; and
(2) the purpose is certified in accordance with section 1681e of this title by a prospective user of the report through a general or specific certification.*fn1
15 U.S.C. § 1681b(f).
The FCRA defines a consumer report as: any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer's eligibility for--(A) credit or insurance to be used primarily for personal, family, or household purposes;
(B) employment purposes; or
(C) any other purpose authorized under section 1681b of this title.
15 U.S.C. § 1681a(d)(1).
Section 1681b(a) provides the circumstances under which "any consumer reporting agency may furnish a consumer report." In relevant part, these circumstances include furnishing a report to a person whom the consumer reporting agency has reason to believe "intends to use the information in connection with a credit transaction involving the consumer on whom the information is to be furnished and involving the extension of credit to, or review or collection of an account of, the consumer." 15 U.S.C. § 1681b(a)(3)(A).
Other permissible purposes under Section 1681b(a) for which a consumer report may be issued include in response to a court order, pursuant to written instructions of the consumer, for employment purposes, in relation to underwriting of insurance, for determination of eligibility for a license, for assessment of risk for an existing credit obligation, in relation to legitimate business needs initiated by the consumer, to review an account or to determine if the consumer meets the terms of the account, for the issuance of government sponsored travel charge cards, in relation to requests related to State or local child support enforcement, to an agency administrating a State plan under 42 U.S.C. § 654, and to certain agencies in preparation for appointment as a conservator, receiver, or liquidating agent. 15 U.S.C. § 1681b(a)(1)-(6).
2. Defendant's Alleged Conduct is Permissible Under the FCRA
Plaintiff alleges that Defendant violated the FCRA "by obtaining Plaintiff's credit report without a permissible purpose from TransUnion, because at or about the time that Defendant obtained Plaintiff's credit report, none of the specific and strictly limited circumstances granting permissible purpose under section 1681b applied to Defendant." (Doc. 5, ¶ 15 (emphasis omitted).) However, as discussed below, Defendant's conduct, as alleged by Plaintiff, is permissible under the FCRA, and thus Plaintiff fails to state a viable claim.
a. Defendant is a Collection Agency
Plaintiff asserts claims against Defendant First National Collection Bureau, Inc., and states that Defendant is "[a] third party debt collector." (Doc. 5, ¶¶ 6, 17.) As Plaintiff was informed in the April 2, 2012, Court order (see Doc. 4), a collection agency is permitted to obtain a consumer report for the purposes of collecting a debt. See 15 U.S.C. § 1681b(a)(3)(A). "[O]ne of the 'permissible purposes' for obtaining a consumer report under 15 U.S.C. § 1681b(a)(3)(A) would permit a collection agency retained by a creditor to collect on an account of the consumer." Hinkle, 2012 WL 681468, at * 3; see also Chavez v. Premier Bankcard, LLC, No. 1:11--cv--01101 LJO GSA, 2011 WL 5417107, at * 3 (E.D. Cal. Nov. 8, 2011). "Thus, if a collection agency . . . is retained by a creditor to collect a debt owed by a consumer, then it typically has a permissible purpose for obtaining a consumer report in conjunction with its collection activities, so long as it seeks to use information in connection with a transaction that the consumer initiated with the creditor." Hinkle, 2012 WL 681468, at * 3. Here, Plaintiff alleges that Defendant was attempting to collect on a debt owed for a Providian credit card account. (Doc. 5, ¶ 16.) Thus, provided that a credit card account is a permissible account under the FCRA (see discussion below), Defendant, as a collection agency, is permitted to obtain a consumer report under the FCRA while attempting to collect on a debt. See 15 U.S.C. § 1681b(a)(3)(A).
Further, as Plaintiff was informed in the April 2, 2012, Court order (see Doc. 4), his allegation that he "never at anytime had any business dealing or accounts with the Defendant" does not establish that Defendant's activities were impermissible. (Doc. 5, ¶ 23.) "[I]t is not necessary for Plaintiff to have had direct dealings with Defendant" for the Defendant to lawfully obtain a consumer report. Hinkle 2012 WL 681468, at *3. Provided that Defendant obtained Plaintiff's consumer report "in conjunction with its collection activities," Defendant acted within a permissible purpose under the FCRA. Hinkle 2012 WL 681468, at *3; see also 15 U.S.C. § 1681b(a)(3)(A).
b. Obtaining Information to Collect a Debt on a Credit Card Account is Permissible
Plaintiff's FAC relies on the contention that Defendant's activities to attempt to collect on a credit card account are impermissible under the FCRA. Specifically, Plaintiff alleges in pertinent part:
13. The FCRA in 15 U.S.C. § 1681a(r)(4) defines what accounts have permissible purposes to obtain consumer reports. These are: "The terms 'account' and 'electronic fund transfer' have the same meaning as in section 1693a of this title.["] It states in 15 U.S.C. § 1693a(2) the term "account" means a demand deposit, savings deposit, or other asset account (other than an occasional or incidental credit balance in an open end credit plan as defined in section 1602(i)(1) of this title[.]
14. Therefore the open-ended credit plan with occasional or incidental balances, ie: credit cards[,] are clearly excluded from the permissible purposes.
15. The definition of "account" clearly states that it must be a demand deposit, savings deposit, or other asset account of which the Plaintiff has never had at any time with the Defendant.
(Doc. 5, ¶¶ 13-15 (emphasis omitted).) As such, Plaintiff asserts that a consumer report cannot be obtained for the purposes of collecting a debt on a credit card account, because a credit card account is not defined as a permissible account and is thus clearly excluded.
Plaintiff's assertion has been rejected by the courts. "The definition of 'account' in § 1681a(r)(4) provided by the plaintiff, however, is under a heading concerning 'Credit and debit related terms.' Plaintiff has made no showing that such usage of the term is applicable to the word 'account' as used in section 1681b(a)(3)(A), which does not deal with credits and debits." DeMaestri
v. Asset Acceptance Capital Corp., Nos. 11-CV-01671-72-WJM-MJW, 2012 WL 1229907, at *4
(D. Colo. Mar. 14, 2012) (report and recommendation adopted, DeMaestri v. Asset Acceptance Capital Corp., 11-CV-01671-72 WJM-MJW, 2012 WL 1229940 (D. Colo. Apr. 12, 2012). Section 1681b pertains to permissible purposes of consumer reports and states in pertinent part that a report may be furnished to a person who "intends to use the information in connection with a credit transaction involving the consumer on whom the information is to be furnished and involving the extension of credit to, or review or collection of an account of, the consumer." 15 U.S.C. § 1681b(a)(3)(A). "[C]ollection of a debt has been consistently found to be a permissible purpose for seeking a consumer's credit report under § 1681b(a)(3)(A)." DeMaestri, 2012 WL 1229907, at *4.
Several courts have found that obtaining a consumer credit report in an attempt to collect on a credit card account debt is permissible under Section 1681b. See, e.g., Huertas v. Galaxy Asset Mgmt., 641 F.3d 28, 34 (3d Cir. 2011) (The Plaintiff had "accumulated credit card debt" that led to the defendant "ultimately . . . accessing [the plaintiff's] credit report to collect on his delinquent accounts. Section 1681b(a)(3)(A) authorizes the use of consumer information under such circumstances."); Rodriguez v. Cavalry Portfolio Servs., LLC, No. 11-CV-1837-LAB-MDD, 2012 WL 726474, at *1 (S.D. Cal. Mar. 6, 2012) (The plaintiff "alleges that [the defendant] pulled his credit report for an improper purpose. He is wrong. A debt collector may access a consumer's credit report in the course of collecting a credit card debt from that consumer."); Miller v. Rubin & Rothman, LLC, No. CIV. 10-2198 MJD/JJK, 2011 WL 4359977, at *3-*4 (D. Minn. Sept. 19, 2011) (finding that the defendant obtaining consumer reports in an attempt to collect on plaintiff's Capital One credit card account debt "was made with a permissible purpose under 15 U.S.C. § 1681b(a)(3)(A)"); Miller v. Wolpoff & Abramson, LLP, No. 1:06-CV-207-TS, 2007 WL 2694607, at *11 (N.D. Ind. Sept. 7, 2007), aff'd, 309 F. App'x 40 (7th Cir. 2009) (finding that the defendant's obtaining a consumer report in an attempt to collect on a Providian credit card debt was permitted under Section 1681b(a)(3)(A) as "debt collection").
In an unpublished Ninth Circuit opinion, the court held that "requesting a credit report with the intent to collect on a debt is among the 'permissible purposes' listed in the FCRA. 15 U.S.C. § 1681b(a)(3)(A)." Thomas v. U.S. Bank, N.A., 325 F. App'x 592, 593 (9th Cir. 2009).*fn2 The defendant in Thomas was attempting to collect on a debt owed by the plaintiff for a Visa credit card account. See Thomas v. U.S. Bank, N.A., No. CV 05-1725-MO, 2007 WL 764312. At *1 (D. Or. Mar. 8, 2007) (establishing that the debt was for a Visa credit card).
Plaintiff's contention that Defendant could not obtain Plaintiff's credit report to collect credit card account debt is "baseless." See DeMaestri, 2012 WL 1229907, at *5 (finding that if Section 1681 b(a)(3)(A) is "[r]ead correctly," a defendant is permitted to obtain a plaintiff's consumer report for the purpose of collecting a credit card debt).
c. Conclusion
Plaintiff's only claim is for violation of the FCRA. (Doc. 5.) Although Plaintiff alleges that Defendant willfully violated the FCRA by obtaining Plaintiff's consumer report for an impermissible purpose, the facts set forth by Plaintiff belie this allegation. Plaintiff alleges that Defendant is a debt collection agency. (Doc. 5, ¶¶ 6, 17.) As such, Defendant is generally permitted to obtain Plaintiff's credit report for the purpose of collecting a debt. 15 U.S.C. § 1681b(a)(3)(A). Plaintiff further asserts that Defendant was not permitted to obtain Plaintiff's credit report because the account in question, a Providian credit card account, was not defined as an account for which Defendant was permitted to seek information. (Doc. 5, ¶¶ 12-17.) Plaintiff's assertion is incorrect. As set forth above, obtaining a credit report in an attempt to collect on credit card account debt has been found to be permissible under 15 U.S.C. § 1681b(a)(3)(A). See, e.g., Huertas, 641 F.3d at 34; DeMaestri, 2012 WL 1229907, at *4-*5; Rodriguez, 2012 WL 726474, at *1; Rubin & Rothman, LLC, 2011 WL 4359977, at *3-*4; Wolpoff & Abramson, LLP, 2007 WL 2694607, at *11; Thomas, 325 F. App'x at 593.
As such, Plaintiff has failed to properly plead a claim since Defendant's conduct, as alleged by Plaintiff, is permissible under the FCRA. Accordingly, Plaintiff's FAC should be DISMISSED.
D. Leave to Amend Should Not Be Granted
Although Plaintiff was previously informed by the Court why his claims are deficient and was provided an opportunity to amend, he has been unable to amend his complaint to state a cognizable claim, indicating an inability to do so. As such, the Court recommends that Plaintiff's complaint be dismissed with prejudice and without leave to amend. See McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (dismissal with prejudice appropriate where deficiencies of complaint were explained, time was afforded to amend, and the plaintiff was warned that failure to cure deficiencies would result in dismissal).
Accordingly, IT IS HEREBY RECOMMENDED that Plaintiff's first amended complaint be DISMISSED with prejudice and without leave to amend.
These findings and recommendations are submitted to the district judge assigned to this action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court's Local Rule 304. Within twenty-one
(21) days of service of this recommendation, any party may file written objections to these findings and recommendations with the Court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." The district judge will review the magistrate judge's findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified time may waive the right to appeal the district judge's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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Patients at a hospital in Long Branch, N.J., who interacted with a therapy dog for 15 minutes prior to an MRI scan reported feeling less stressed during the test compared with those who waited for 15 minutes in a quiet room, according to this article. The therapeutic effects of interacting with an animal prior to the diagnostic procedure may aid in keeping patients calm for longer and improve the quality of MRI tests, radiologists said.
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decided: December 29, 1978.
COMMONWEALTH OF PENNSYLVANIAv.OMAR H. LEE, APPELLANT
No. 125 October Term 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas of Phila. County, Trial Div., Criminal Sect., as of Jan. Sessions, 1976, Nos. 1997-1999.
Benjamin Lerner, Defender, Philadelphia, for appellant.
F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Jacobs, President Judge, concurs in the result. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 262 Pa. Super. Page 283]
Appellant was tried by a judge sitting with a jury and was convicted of robbery, rape, and involuntary deviate sexual intercourse.*fn1 Post-verdict motions were denied and appellant was sentenced to three concurrent prison terms of eight to twenty years. This appeal followed.
On the night of January 14, 1976, the complainant was walking to her home at 1208 Spruce Street in Philadelphia. Sometime after 11:15 p. m., as she neared the corner of 13th and Spruce Streets, she was grabbed from behind by a man wielding a sharp instrument. He forced her into a nearby alley where she was compelled to partially disrobe and to submit to sexual intercourse and sodomy. Before leaving her, the attacker stole $11 in bills and approximately $2.50 in change from her purse. The entire incident, according to the complainant's testimony at trial, lasted about one half hour, during which time she observed her attacker's face and clothing and heard his voice.
After the attack, the complainant ran to a nearby store and asked that the police be called. Officer John Russell arrived a few minutes later, at about 12:25 a. m. The complainant told him that she had been raped and robbed by a "big, fat, Negro male, wearing a tan coat and very tall." (N.T.M.S. 23). Officer Russell broadcast this information over the police radio.
Soon after receiving this broadcast report, Officers Dennis McNaulty and Edward Mazur saw appellant, a tall, fat, black male in a tan coat, walking west on the 1300 block of South Street, which is some three blocks from the corner of 13th and Spruce Streets. The officers apprehended appellant, placed him in their patrol car, and took him back to the corner of 13th and Spruce Streets for an "on the scene" identification.
The complainant was seated in the rear seat of Officer Russell's patrol car. When Officers McNaulty and Mazur
[ 262 Pa. Super. Page 284]
brought appellant to within ten feet of her, she exclaimed, "That's him." Evidence of the "on the scene" identification, and also of an in-court identification by the complainant, as admitted at the trial.
Before the trial, appellant moved to suppress the "on the scene" identification for suggestiveness. The complainant did not appear at the hearing on the motion, on May 18, 1976, nor did she appear at the continuation of the hearing, on May 20.*fn2 The only testimony concerning the identification was police testimony that appellant was apprehended on the basis of the radio report, that he was taken to the corner of 13th and Spruce Streets, that the complainant identified him there, and that this identification took place no more than one half hour after the attack. (N.T.M.S. 17-31). Counsel for appellant argued to the hearing judge, and argues to us, that since the Commonwealth had not called the complainant it had failed to meet its burden of establishing that the "on the scene" identification was not overly suggestive, and had thereby also failed to show the reliability of any in-court identification as independent of the inadmissible "on the scene" identification.
A pre-trial identification is inadmissible at trial when obtained in violation of the accused's right to counsel or when obtained by a procedure "so unnecessarily suggestive and conducive to irreparable mistaken identification" as to deny the accused due process of law. Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967). See United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). If a pre-trial identification
[ 262 Pa. Super. Page 285]
is inadmissible, a later in-court identification is also inadmissible unless shown to be based on a source independent of, and not tainted by, the pre-trial identification. United States v. Wade, supra; Commonwealth v. Connolly, 478 Pa. 117, 385 A.2d 1342 (1978); Commonwealth v. Spencer, 442 Pa. 328, 275 A.2d 299 (1971).
An accused is entitled to a pre-trial evidentiary hearing to determine the admissibility of the identifications. Commonwealth v. Jenkins, 232 Pa. Super. 523, 527, 335 A.2d 463, 464 (1975); Commonwealth v. McMillon, 215 Pa. Super. 306, 265 A.2d 375 (1969). In Commonwealth v. Jenkins, supra, this court described the duty of the judge at a hearing to suppress identifications:
First the hearing judge must determine whether the accused was entitled to counsel, and, if so, whether that right was recognized, and whether the identification procedure was impermissibly suggestive. . . . Next the hearing judge must determine the admissibility of the in-court identification. Commonwealth v. Jenkins, supra, 232 Pa. Super. at 527, 335 A.2d at 465 (citations omitted).
Certain considerations are specially applicable to the decision whether an "on the scene" identification was impermissibly suggestive. Any such identification is to some extent suggestive, for it represents a one-on-one confrontation between the complainant and a person in police custody. It has nevertheless been held that evidence of the identification will be admitted if the identification procedure was not "unduly suggestive." See Commonwealth v. Turner, 454 Pa. 520, 314 A.2d 496 (1974); Commonwealth v. Ray, 455 Pa. 43, 315 A.2d 634 (1974); Commonwealth v. Aaron, 255 Pa. Super. 289, 386 A.2d 1006 (1978); Commonwealth v. Perdie, 249 Pa. Super. 406, 378 A.2d 359 (1978); Commonwealth v. Santiago, 229 Pa. Super. 74, 323 A.2d 826 (1974). The reasoning is that the reliable aspect of an "on the scene" identification may offset the suggestive aspect. This reliable aspect is that when an identification is made on the scene, shortly after the crime, the criminal's image may still be fresh in the victim's mind. Also, as a consideration of policy, if "on
[ 262 Pa. Super. Page 286]
the scene" identifications are upheld, the police are enabled to "effectuate the rapid release of a mistaken suspect and to resume the search for the actual offender." Commonwealth v. Perdie, supra. See Commonwealth v. Turner, supra.
When the accused challenges an identification, it is the Commonwealth's burden to prove that the identification procedure was not unduly suggestive. Commonwealth v. Turner, supra; Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426 (1968); Commonwealth v. Perdie, supra ; Pa.R.Crim.P. 323(h). Here, the Commonwealth argues that it met this burden by only having the police describe the procedure. We cannot accept this argument. At a hearing on a motion to suppress an "on the scene" identification it is essential that the identifying witness testify.
In order to determine whether the suggestiveness of an "on the scene" identification is offset by its reliability, the suppression hearing judge must consider not only the procedure used by the police but also whether at the time of the crime the witness saw the criminal with sufficient clarity and for a sufficient length of time to have been able to make an identification. The best, if not the only source of this information is the witness. The hearing judge may also have to consider other facts peculiarly within the knowledge of the witness, as for example whether the witness for some reason felt pressured into making the identification, how the witness perceived the identification procedure, and what was the witness' physical and mental condition. Thus, by failing to produce the witness, the Commonwealth deprives the hearing judge of essential information. Moreover, the failure to produce the witness deprives the defendant of an opportunity to test the identification by cross-examination. The witness' response to cross-examination may be essential to the hearing judge in deciding what identification procedure the police adopted, how the procedure affected the witness, and also what was the witness' opportunity and ability to make an identification. After seeing the witness under cross-examination, the judge may decide that the
[ 262 Pa. Super. Page 287]
witness could not make a reliable identification, or that the witness was in fact convinced that the defendant was the criminal only because the police presented him. With respect to photographic identifications this court has required that the actual array be displayed at the suppression hearing, "so that the defense would at least be in a position to attack the credibility of the identifying witness testimony." Commonwealth v. Jackson, 227 Pa. Super. 1, 10, 323 A.2d 799, 804 (1974) (emphasis added). See also Commonwealth v. Hodge, 246 Pa. Super. 71, 369 A.2d 815 (1977) (Commonwealth's failure to produce photographs at suppression hearing makes photographic identification inadmissible). We have also found error where the hearing judge limited the defendant's right to cross-examine the identifying witness concerning the reliability of the identification. See Commonwealth v. Alvin, 257 Pa. Super. 290, 390 A.2d 827 (1978). See also Commonwealth v. Rodriquez, 234 Pa. Super. 294, 338 A.2d 633 (1975) (witness' identification in prior hearing inadmissible where defense counsel limited in cross-examining witness at prior hearing).
The essential nature of information regarding the complainant's opportunity to observe her attacker has often been indicated by the cases. Thus, in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), the Supreme Court of the United States stated that "reliability is the linchpin in determining the admissibility of identification testimony." 432 U.S. at 114, 97 S.Ct. at 2253. The factors to be considered in deciding reliability, according to the Court, included "the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation." Id., citing, Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). In Commonwealth v. Turner, supra, the Pennsylvania Supreme Court, in holding an "on the scene" identification admissible, cited the fact that the witness "had seen the robbers face to face only minutes earlier." In
[ 262 Pa. Super. Page 288]
half an hour in appellant's presence during the crime, and that during this period she saw his face and clothing and heard his voice. There is little doubt that she was attentive, since she was the victim. She also testified that upon seeing appellant and hearing his voice, when the police brought him to her, she exclaimed, "That's him," and that this identification was not prompted by the police. The description she gave to the police was accurate, although not very detailed, and the time between the crime and the confrontation was no more than half an hour. Appellant's counsel cross-examined the complainant concerning these matters and her testimony was unshaken. The jury showed by its verdict that it accepted her testimony. Had she appeared at the suppression hearing and given the same testimony, the motion to suppress would have been justifiably denied.
A cautionary comment should be added. Our decision here to decide the admissibility of the identification on the basis of a review of the entire record should not be understood as meaning that we shall undertake such a review in another case. Whether such a review is appropriate must depend upon the particular facts, which is to say, the nature of the issues and whether the testimony enables those issues to be resolved by an appellate court. It is the duty of the suppression hearing judge to decide the admissibility of an identification in the first instance; it is not the duty of the trial judge or of the appellate court. In deciding admissibility, the hearing judge must hear the testimony of the identifying witness; if the Commonwealth fails to produce the witness, the identification should be suppressed.
On the day of trial appellant objected to having a jury trial and, citing Pa.R.Crim.P. 1101, demanded to be permitted to waive his right to a jury and to elect to be tried by a judge without a jury. The trial judge commented that "[f]rankly I am somewhat reluctant to hear a rape case non-jury . . . I won't say that I won't but I am somewhat reluctant to do it." (N.T. 15) After an unsuccessful
[ 262 Pa. Super. Page 290]
attempt to obtain another judge to hear the case non-jury, the trial judge informed appellant's counsel that if appellant "is willing to waive before me I will take it . . . . [i]f he is not willing to waive before me it will be heard by a jury." (N.T. 22) After a discussion with appellant, appellant's counsel stated that appellant still insisted that his case be heard by a judge without a jury but by another judge. The trial judge then ordered that the case be heard with a jury.
Rule 1101 provides that "the defendant may waive a jury trial with the consent of his attorney, if any, and approval by the judge of the court in which the case is pending, and elect to be tried by a judge without a jury." Pa.R.Crim.P. 1101. "It is well established that there is no constitutional prohibition to a court's denial in appropriate circumstances, of a defendant's request to be tried by a judge sitting without a jury." Commonwealth v. Garrison, 242 Pa. Super. 509, 515, 364 A.2d 388, 390 (1976). Moreover, Rule 1101 "expressly provides the trial judge with discretion in accepting a criminal defendant's waiver of jury trial." Commonwealth v. Garrison, supra. Here, the trial judge did offer to hear appellant's case without a jury; it was only after appellant refused this offer and requested another judge that a jury trial was ordered. It appears to us that appellant was "judge shopping." See Commonwealth v. Garrison, supra.
Appellant argues that he was not judge shopping but was acting on the basis of the fact that he could not receive a fair trial if the judge in question heard the case without a jury. In support of this argument appellant cites the judge's admitted reluctance to hear a rape case without a jury, and the fact that the judge had sat at the suppression hearing. The judge's offer to hear the case without a jury was thus, according to appellant, no choice at all.
The fact that the judge admitted reluctance to hear a rape case without a jury does not necessarily support a finding that appellant could not receive a fair non-jury trial from the judge; the judge's statement may be understood as
[ 262 Pa. Super. Page 291]
indicative of a concern that appellant's right to a jury trial should not be lightly waived where the charge is so serious a one as rape.
With respect to appellant's second argument: The Supreme Court has said that a trial judge should recuse himself from sitting without a jury where "prejudicial information is received in a pre-trial proceeding that would otherwise be inadmissible during the trial of the cause." Commonwealth v. Goodman, 454 Pa. 358, 361-62, 311 A.2d 652, 654 (1973). However, the Court has refused to hold improper a situation where the trial judge had also sat as the judge at the defendant's earlier hearing concerning the voluntariness of his confession. Commonwealth v. Green, 464 Pa. 557, 347 A.2d 682 (1975). This past term the Court again addressed the general issue, in the context of a Post Conviction Hearing Act proceeding. Commonwealth v. Badger, 482 Pa. 240, 393 A.2d 642 (1978). The Court held trial counsel ineffective for not requesting the trial judge to recuse himself where the judge knew that the defendant had earlier pleaded guilty to the charge. In Commonwealth v. Conti, 236 Pa. Super. 488, 345 A.2d 238 (1975), this court held that a mistrial should have been declared when the trial judge learned that the defendant had pleaded guilty during the course of the trial. It appears from these cases that the crucial consideration is the type of evidence that the judge hears; if the evidence is inadmissible and is of a highly prejudicial nature, the judge should recuse himself or declare a mistrial if it is too late for recusal. See Commonwealth v. Badger, supra; Commonwealth v. Conti, supra. A guilty plea is by its nature so prejudicial that recusal is required. See Commonwealth v. Badger, supra. If the evidence is admissible or not of a highly prejudicial nature, recusal is not required. Here, there was no evidence at the suppression hearing that was inadmissible at trial; the only questionable evidence was the prior identification, which we have discussed above, and have held admissible. Thus no reason appears indicating that the trial judge erred in not recusing himself, when he offered to hear the case without a jury.
[ 262 Pa. Super. Page 292]
Since we find appellant's objections to trial by the judge meritless we hold that the judge did not abuse his discretion in ordering a jury trial. Appellant was afforded his rights under Rule 1101; he himself refused the opportunity to have his case heard by the judge sitting without a jury.
Officer McNaulty testified at trial that when he apprehended appellant, he noticed that appellant was sweating and had a strong body odor. This supported the complainant's testimony that her attacker had a strong body odor. When appellant's counsel cross-examined the officer concerning the reason he had not mentioned body odor at the suppression hearing, the Commonwealth's objection was sustained. After a conference at side-bar, the trial judge, at the Commonwealth's request, instructed the jury as follows:
"The Court: Ladies and Gentlemen of the Jury, there has been a discussion before you between counsel in connection with the interrogation and the cross examination of this witness concerning the alleged body odor of the defendant at the time he was stopped on South Street, in the 1300 Block of South Street and as this had been brought out in a prior hearing. There was a prior hearing for a totally different purpose having nothing to do with guilt or innocence and was the subject of probable cause to arrest the defendant which was not before you in that proceeding. You have a different proceeding before you which is the question of guilt or innocence and therefore that particular evidence had nothing to do, that is whether or not the defendant had an alleged body odor or not had nothing to do with the purpose of the other hearing." N.T. 43.
Appellant argues that the trial judge erred in limiting his cross-examination; he also argues that the judge's instruction to the jury was error.
[ 262 Pa. Super. Page 293]
The extent of cross-examination is within the discretion of the trial judge, who will not be reversed except for a clear abuse of discretion or error of law. Commonwealth Page 293} v. Greene, 469 Pa. 399, 404, 366 A.2d 234, 236 (1976); Commonwealth v. Bailey, 450 Pa. 201, 207, 299 A.2d 298, 301 (1973). Notwithstanding that the right to "cross-examination is encompassed by the accused's right of confrontation in a criminal case, as protected by the Sixth Amendment, 'the extent of cross-examination is within the discretion of the trial court.'" Commonwealth v. Greene, supra, quoting United States v. Riccobene, 320 F.Supp. 196, 200 (E.D.Pa. 1970), aff'd, 451 F.2d 586 (3d Cir. 1971). In determining the extent of cross-examination the trial judge may consider whether the matter is collateral, whether the cross-examination would be likely to confuse or mislead the jury, and whether it would waste time. See Commonwealth v. Greene, supra (collateral); Commonwealth v. Donnelly, 233 Pa. Super. 396, 336 A.2d 632 (1976) (waste of time); Lafferty v. School Dist. of Phila., 27 Pa. Commw. 80, 365 A.2d 1322 (1976) (cross examination was "getting off of the issue").
Here, the trial judge limited appellant's cross-examination only with respect to his attempt to impeach Officer McNaulty by contrasting the officer's testimony at the suppression hearing with his testimony at trial. Appellant's pursuit of this line of examination might have confused or misled the jury, for it brought into issue a former hearing about which the jury knew nothing, and implied an inconsistency in the officer's testimony when there was none. The issue at the suppression hearing was the description that Officer McNaulty received over the police radio, that description being the basis of his apprehending the appellant. The officer's trial testimony about appellant's body odor was in answer to the question of what he himself had noticed about appellant, not what the police radio description had told him about the suspect. It is thus apparent that the trial judge's limitation on cross-examination and his instruction concerning the difference between the suppression hearing and the trial did not constitute an abuse of discretion.
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Dismiss Pet
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|Dismiss Pet
|Usable by
|(GCD 1.5 sec)
|Level required
Dismiss Pet is a hunter ability learned at level 10 that sends the hunter's pet away temporarily. It can be resummoned using [Call Pet].
Notes Edit
- This can be used to save a pet from death. Don't wait for the last moment, as the cast time is rather long.
- It can be used to prevent pets from drawing aggro in certain areas, such as areas the hunter is sneaking through.
- Hunters used to learn this ability at level 10 by fulfilling the Taming the Beast quest chain (now removed). The spell also used to reduce pet happiness, but this mechanic was also removed.
Past changes Edit
- Patch 6.0.2 (14-October-2014): Dismiss Pet now ignores line of sight.
- Patch 5.2.0 (5-Mar-2013): Dismiss pet now has a cast time of 3 seconds (was 2 seconds).
- Patch 4.1.0 (26-Apr-2011): Updated.
External links Edit