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Saturday, May 22, 2010

Yo Keller Stalker

What say we move to PA where there is no Mark Ober or Paul Mumford and we'll start this ALL OVER AGAIN sans judge artemus mcneil and we'll see who gets arrested.

You have a lot going for you here in FL but hey, that does NOT impress me.

IF WE HAD JUSTICE your ass would already be in prison. As it is, my famla will have to be more patient.

NO PROBLEMO. Patience is not a virtue. It is concentrated strength.
BARRY E. SHELLEY, Appellant v. TPR TERRY A. WILSON; TPR JEFFERY BROCK

No. 09-1193

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

339 Fed. Appx. 136; 2009 U.S. App. LEXIS 17111

July 9, 2009, Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2) or Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
August 3, 2009, Opinion Filed

NOTICE: NOT PRECEDENTIAL OPINION UNDER THIRD CIRCUIT INTERNAL OPERATING PROCEDURE RULE 5.7. SUCH OPINIONS ARE NOT REGARDED AS PRECEDENTS WHICH BIND THE COURT.
PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.



PRIOR HISTORY: [**1]
On Appeal from the United States District Court for the Western District of Pennsylvania. (D.C. No. 3-04-cv-00002). District Judge: Honorable Maurice B. Cohill, Jr.
Shelley v. Wilson, 2008 U.S. Dist. LEXIS 101334 (W.D. Pa., Dec. 15, 2008)



CASE SUMMARY

PROCEDURAL POSTURE: Appellant arrestee appealed from the United States District Court for the Western District of Pennsylvania's order which dismissed his pro se civil rights action against appellees, two state police troopers, asserting claims of false arrest in violation of his Fourth Amendment rights and malicious prosecution.

OVERVIEW: In the instant proceeding, the only remaining claim at issue was the arrestee's false arrest claim. The arrestee claimed that the troopers arrested him without probable cause in violation of his Fourth Amendment rights. However, the arrestee's complaint failed to state a claim under 42 U.S.C.S. § 1983. The arrestee argued that he was innocent of the charges and that troopers lied on the affidavit of probable cause. As proof, he pointed to his acquittal on the charges of terroristic threats and stalking with intent to place another person in fear of bodily injury. He ignored, however, that he was convicted of harassment and stalking with intent to cause emotional distress, which required the prosecution to prove, beyond a reasonable doubt, that the arrestee committed the offenses. The jury's finding that the arrestee committed each element of these offenses beyond a reasonable doubt defeated his assertion that there was no probable cause to arrest him. Accordingly, he could not succeed on a claim that his arrest violated his Fourth Amendment rights. Thus, the district court's decision to dismiss the arrestee's complaint was proper.

OUTCOME: The arrestee's appeal was dismissed.




CORE TERMS: probable cause, false arrest, arrest, harassment, stalking, cause to arrest, convicted, arrested, robable, matter of law, cause emotional distress, matters of public record, reasonable doubt, course of conduct, terroristic, asserting, malicious, arresting, quotations, pauperis, probable, arguable, commit, forma, amend, lied, incarceration, witch, kill

LexisNexis® Headnotes Hide Headnotes


Civil Procedure > Pleading & Practice > Pleadings > Proceedings in Forma Pauperis > General Overview
HN1 Where an appellant is proceeding in forma pauperis, the United States Court of Appeals for the Third Circuit reviews the appeal to determine whether it lacks an arguable basis in law and should be dismissed pursuant to 28 U.S.C.S. § 1915(e)(2)(B).


Civil Procedure > Pleading & Practice > Defenses, Demurrers & Objections > Failures to State Claims
HN2 In evaluating the dismissal of a complaint under Fed. R. Civ. P. 12(b)(6), the United States Court of Appeals for the Third Circuit accepts all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief. Moreover, to survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.


Civil Rights Law > Section 1983 Actions > Law Enforcement Officials > Arrests
Criminal Law & Procedure > Arrests > Probable Cause
HN3 An arrest made without probable cause creates a cause of action for false arrest under 42 U.S.C.S. § 1983. Probable cause to arrest exists when the facts and circumstances within the arresting officer's knowledge are sufficient in themselves to warrant a reasonable person to believe that an offense has been or is being committed by the person to be arrested. Further, because probable cause does not require the same type of specific evidence of each element of the offense as would be needed to support a conviction, the evidentiary standard for probable cause is significantly lower than the standard which is required for conviction. Although determinations of probable cause are usually the province of the jury, a district court may conclude that probable cause did exist as a matter of law if the evidence, viewed in the light most favorably to the plaintiff, reasonably would not support a contrary factual finding.



COUNSEL: BARRY E. SHELLEY, Plaintiff - Appellant, Pro se, Houtzdale, PA.

For TERRY A. WILSON, JEFFERY BROCK, Defendants - Appellees: Kemal A. Mericli, Esq., Paul R. Scholle, Esq., Office of Attorney General of Pennsylvania, Pittsburgh, PA.

JUDGES: Before: BARRY, AMBRO and SMITH, Circuit Judges.

OPINION

[*137] PER CURIAM

Barry Shelley appeals from the District Court's order dismissing his complaint. For the following reasons, we will dismiss the appeal.

I.
In 2004, Shelley filed this civil rights action pro se and in forma pauperis against two Pennsylvania State Troopers, Terry Wilson and Jeffery Brock ("Troopers"), asserting claims of false arrest and malicious prosecution. In 2005, the United States District Court for the Western District of Pennsylvania dismissed the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). Shelley appealed, and we affirmed the District Court's dismissal of the malicious prosecution claim but vacated the decision to the extent that the District Court dismissed the false arrest claim and denied Shelley leave to amend the complaint. [**2] (See C.A. No. 05-1907.)

On remand, the District Court provided Shelley with an opportunity to amend his complaint; Shelley, however, elected to stand on his originally filed complaint. The substance of Shelley's false arrest claim (his only remaining claim) is that the Troopers arrested him without probable cause. In support of his claim, he asserts his innocence and claims that the Troopers conspired with the victim and lied on the affidavit of probable cause, which led to the issuance of an arrest warrant. Further, he appears to claim that the Troopers and the victim had some sort of vendetta against him that motivated their actions. 1


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1 We note that the Troopers' subjective motivation for arresting Shelley is irrelevant to the inquiry into the claim of false arrest. See Devenpeck v. Alford, 543 U.S. 146, 153, 125 S. Ct. 588, 160 L. Ed. 2d 537 (2004).

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The Troopers moved to dismiss the complaint, arguing that the claim for false arrest was meritless because they had probable cause to arrest Shelley, and asserting their entitlement to qualified immunity from suit. In support of their motion, the Troopers submitted a police incident report filed by the victim, the criminal complaint and affidavit of probable cause for an [**3] arrest warrant, the state court docket, and the Pennsylvania Superior Court's decision affirming Shelley's judgment of sentence. 2


- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
2 We note that the District Court properly considered the documents attached to the Troopers' motion to dismiss. "In deciding motions to dismiss pursuant to Rule 12(b)(6), courts generally consider only the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim." Lum v. Bank of Am., 361 F.3d 217, 222 n.3 (3d Cir. 2004). Here, the documents attached to the Troopers' motion were either referenced in Shelley's complaint, were matters of public record, and/or were integral to the false arrest claim. Accordingly, we have no difficulty concluding that the District Court properly considered the documents.

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The Magistrate Judge filed a report recommending that the Troopers' motion to dismiss be granted. After considering Shelley's objections thereto, the District [*138] Court adopted the Magistrate Judge's Report and Recommendation and dismissed the complaint.

This appeal followed.

II.
This Court has jurisdiction pursuant to 28 U.S.C. § 1291. HN1Because Shelley is proceeding in forma pauperis, we [**4] review his appeal to determine whether "it lacks an arguable basis in law" and should be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B).

HN2In evaluating the dismissal of a complaint under Federal Rule of Civil Procedure 12(b)(6), "we accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002). Moreover, to survive a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50, 173 L. Ed. 2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)).

HN3An arrest made without probable cause creates a cause of action for false arrest under 42 U.S.C. § 1983. See Dowling v. City of Phila., 855 F.2d 136, 141 (3d Cir. 1988). "[P]robable cause to arrest exists when the facts and circumstances within the arresting officer's knowledge are sufficient in themselves to warrant a reasonable person to believe that an offense has been or is being committed [**5] by the person to be arrested." Orsatti v. N.J. State Police, 71 F.3d 480, 483 (3d Cir. 1995). Further, because "[p]robable cause does not require the same type of specific evidence of each element of the offense as would be needed to support a conviction, . . . the evidentiary standard for probable cause is significantly lower than the standard which is required for conviction." Wright v. City of Phila., 409 F.3d 595, 602 (3d Cir. 2005) (internal quotations and citations omitted). Although determinations of probable cause are usually the province of the jury, a district court "may conclude that 'probable cause did exist as a matter of law if the evidence, viewed in the light most favorably to the [p]laintiff, reasonably would not support a contrary factual finding." Smith v. Marasco, 318 F.3d 497, 514 (3d Cir. 2003) (internal citation and quotations omitted).

On January 6, 2002, Teresa Stein filed an incident report with the Pennsylvania Police stating that Shelley (her neighbor) had twice stopped his car on the road outside her home yelling, among other things, "you f--ing witch," "I'll f--ing kill you if it's the last thing I do." On January 11th, the Troopers began conducting surveillance [**6] from Stein's home. The subsequent criminal complaint filed by Wilson states that, on January 12th, the Troopers observed Shelley stopping his vehicle outside Stein's home and heard Shelley telling Stein that she "doesn't deserve to live."

Based on Stein's incident report and the Troopers' observations, the criminal complaint included two counts each of stalking, harassment, and terroristic threats. Wilson completed an affidavit of probable cause, stating that:

. . . [Shelley] drove past the victim's residence. When [Shelley] observed the victim outside, he stopped his vehicle and began shouting threats and harassing statements, i.e. 'You F--ing Witch' 'I'll F--ing kill you if it's the last thing I do,' and others at the victim. Do [sic] to the violent nature of the threats and the past history of harassment, a warrant is being requested for this complaint.
A district justice signed off on the affidavit of probable cause, and on January 29th, [*139] the warrant was served on Shelley and he was taken into custody.

In November 2002, Shelley was tried by a jury in the Somerset County Court of Common Pleas and was convicted of two counts of stalking with intent to cause emotional distress. The judge [**7] also convicted Shelley of one count of the summary offense of harassment. Shelley was acquitted of the remaining charges. He was sentenced to an aggregate term of two-to-six years' incarceration on the stalking convictions and a consecutive ninety days' incarceration on the harassment conviction.

We agree that Shelley's complaint fails to state a claim under 42 U.S.C. § 1983. Shelley alleges that he was arrested without probable cause in violation of his Fourth Amendment rights. He argues that he is innocent of the charges and that Troopers lied on the affidavit of probable cause. As proof, he points to his acquittal on the charges of terroristic threats and stalking with intent to place the other person in fear of bodily injury. He ignores, however, that he was convicted of harassment and stalking with intent to cause emotional distress, which required the prosecution to prove, beyond a reasonable doubt, that Shelley committed the offenses. 3 The jury's finding that Shelley committed each element of these offenses beyond a reasonable doubt defeats his assertion that there was no probable cause to arrest him. See McClam v. Barry, 697 F.2d 366, 370, 225 U.S. App. D.C. 124 (D.C. Cir. 1983), overruled on other [**8] grounds, Brown v. U.S., 742 F.2d 1498, 239 U.S. App. D.C. 345 (D.C. Cir. 1984) (stating that as to common law and constitutional law false arrest claims, "subsequent conviction establishes as a matter of law that the arrest was justified."). Accordingly, he cannot succeed on a claim that his arrest violated his Fourth Amendment rights. 4


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3 At the time of Shelley's arrest, stalking was defined as: "engag[ing] in a course of conduct or repeatedly commit[ting] acts toward another person . . . under circumstances which demonstrate . . . an intent to cause substantial emotional distress to the person." 18 PA. CONS. STAT. ANN. § 2709(b)(2). The offense of harassment was defined as: "with intent to harass, annoy or alarm another, the person . . . engages in a course of conduct or repeatedly commits acts which serve no legitimate purpose." 18 PA. CONS. STAT. ANN. § 2709(a)(3).
4 As the Troopers correctly assert, when an arrest is made on more than one charge, "[p]robable cause need only exist as to any offense that could be charged under the circumstances." Barna v. City of Perth Amboy, 42 F.3d 809, 819 (3d Cir. 1994).

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For the foregoing reasons, we conclude that the District Court's decision to dismiss the Shelley's complaint [**9] was proper. Because we conclude that this appeal lacks arguable merit, we will dismiss it pursuant to 28 U.S.C. § 1915(e)(2)(B).



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Date/Time May 22 2010 20:36:11

Dear Janie Tyler's Dad ...

You really WERE whoring out your daughter??

Seriously.

When they say run a string of WHORES. They meant to tell you: BUT NOT YOUR DAUGHTER.

LOSER.

Lucas McElroy Quinn nee the Breen family.

Intro'd to the next whore.

This is the roofing whore as opposed to the CAR WHORE.

Just wait.

I got this ....

and meantime, knock yourself FUCKING OUT.

Losers.

Whoring out your children.

Wrath of God is going to fuck you to the ground.

And you can count on that.

Trust me on that one.

Ain't nothin you got to dish out bigger then alla that.

Meantime, Keller.

YOUR WHORES are misbehaving.

Any minute they're not on their backs you are LOSING MONEY brother.

So why you got them running down the steps yelling at ma famlee/???

Keep them whores busy.

They ain't makin no monee offn us.

I keep listening to what you had to say ... not a word of it is legible....

fine azzz yooo izzzzzzz.

(that IS a joke you get, right?)

I don't consider you too smart so I have to make sure you know.....

I seen whatcha got over there, I mean.

Not even with someone else's dick in a condom.

We going to have your boy bill up here, next.

Yup.

Dear South Tampa FC

Please stop trying to visit your unfortunate lifestyle choices on us. If those are the folks you like as friends ... by all means ... knock yourselves out.

Consider us tokens.

Stand back and watch how to act like normal human beings.

It will help you in your sociopathism,

Her problem is that she wrongly believes that what she feels, thinks, does or owns makes a fuck bit of difference to anyone as it does to her.

NOT SO MUCH.

Mostly owns cause I'm not sure she does any of the rest of it.

Set your lunchpail down, honey.

This ain't your mama's alma mater of who gives a fuk.

BUT if she keeps trying to stalk me with that whatever of hers please don't think that two attorneys per house will stop it from going live.

What does she want hmday offa the live feed?

Well that's too fucking bad.

Keep your whores to yourself, then.

What goes up does not come down.

Blanks and Charges

Okay, tell me if this sounds mercenary. I'm leaving out names and identities for now, and even some words to protect those who frankly don't deserve protection but having never been a RAT (like some) I just don't feel good about spilling people's filthy sides of their lives onto the WWW...

However -- (you knew this was coming, right??) -- I'm willing to disclose same for a fee. In fact, I'm going to disclose some of this in a book which will definitely be for sale very soon but if you'd like to know if your name or some similar aspect that identifies your smarmy and illegal acts towards me and my family have been mentioned I'd be happy to negotiate a fee with you. For the record, save your pennies if I've known you longer than thirty years. Out of respect for you and your family I'll leave your names out. Out of respect for you and your family I have remained silent. Apparently this same respect was not inbred in you. That's a pity but you and yours are safe with me. The ones who took it upon themselves to do your bidding against an innocent family are wide open just like they've left MY family wide open. Herewith I refer to my extended family and network many of whom are currently suffering at your hands. Be on notice.

Bush McCain Huggy Bears 2008

Bush McCain Huggy Bears 2008
Blast Off's Huggy Bear Pic Challenge

A Nation in DISTRESS

A Nation in DISTRESS

Technorati

.....
In my living room watching;
but I am not laughing ....

..... risk something, take back what's yours
say something that you know they might attack you for
cause I'm sick of being treated like I have before ....
...
Meanwhile, the leader just talks away
Stuttering and mumbling for nightly news to replay
And the rest of the world watching at the end of the day

In their living room laughing like,

"what did he say?"



Fight the Good Fight

" .... courage is humankind's cardinal virtue, because ''it makes all other virtues possible."
Reverend William Sloane Coffin

......" And I dare you to ask for a lot, I dare you to hold fast to your ideals and to expound them as publicly and as fearlessly as Martin Luther King and Bill Coffin and Betty Friedan and those dozens of grandmothers arrested a few weeks ago for protesting the war in Iraq."

Francine du Plessix Gray

BPM = MSM

MainSTREAMMedia=Bush Propaganda Machine
MSM = BPM

BPM=MSM
vox dictionary
Never Mistake Kindness for Weakness
I prefer to be a dreamer among the humblest, with visions to be realized, than lord among those without dreams and desires. Kahlil Gibran
Every man dies.

Not every man really lives.

In the End, we will remember not the words of our enemies, but the silence of our friends...... Martin Luther King, Jr.

Vox Talk

Contrary to popular belief:

Patience is NOT a virtue.

It is concentrated strength.
"The pioneers of a warless world are the young men (and women) who refuse military service."

- Albert Einstein
"Only those who dare to fail miserably can achieve greatly" – Robert Kennedy
"Those who profess to favor freedom and yet deprecate agitation…want crops without plowing up the ground, they want rain without thunder and lightening. They want the ocean without the awful roar of its many waters…. Power concedes nothing without a demand. It never did and it never will." Frederick Douglass, 1857
Tis nobler to lose honor to save the lives of men than it is to gain honor by taking them.

~David Borenstein

You cannot win a War on Terrorism. It’s like having a war on jealousy.

~David Cross

Blog Roll Me ~~~

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ANYWHERE, ANYWHERE LOL, United States
I was born a citizen of the world and have remained such but along with that: I'm a long time Tampa resident. Mixed bag at that as I've seen life here from nearly all angles and while somewhere in there I became slightly indoctrinated, I'm not too proud of the way people have taken over this city and run it with an iron fist for all but some. This city is working hard on creating just two classes. Thems and them dont's and they are working hard to shove some families down into the gutter for reasons known only to them. Some might be as petty as jealousy, some might be politically motivated, some might just be stupid and all are wrong. I want to believe we can get better but that would entail some stuff that I have no control over. I only can control myself and my reactions to what occurs.

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