Opinion
CIVIL ACTION NO. 1:18-CV-00725
06-27-2019
JONATHAN ALLY, Plaintiff, v. KAREN FELICA DUTEAVICH MYERS, et al., Defendants.
(JONES, J.)
() REPORT AND RECOMMENDATION
This is a pro se civil rights action, initiated upon the filing of the original complaint in this matter by Plaintiff Jonathan Ally ("Ally" or "Plaintiff") on April 3, 2018. (Doc. 1). In his complaint, Ally asserts claims under 42 U.S.C. § 1983, the Civil Rights Act of 1871, and the Ku Klux Klan Act, against the following defendants: Detective Mary Hottenstein ("Detective Hottenstein"); Judge Kathryn Silcox and Judge Beckley ("Judicial Defendants"); Shane Kope ("Kope"); Linda Hollinger ("Attorney Hollinger"); and Karen Myers and Alden Myers, mother and son. Now pending before the Court are five motions to dismiss Ally's complaint, filed by the Judicial Defendants (Doc. 19), Attorney Hollinger (Doc. 24), Alden Myers (Doc. 33), Karen Myers (Doc. 35), and Detective Hottenstein (Doc. 38). For the reasons stated herein, it is recommended that each of these motions be GRANTED. I. BACKGROUND AND PROCEDURAL HISTORY
Ally alleges that he scheduled an interview with Detective Hottenstein to report many rapes, his purchase through sex trafficking, and the murder of his cousin. (Doc. 1, at ¶ 3). Ally further claims that certain false statements were made by an unspecified individual, which resulted in his arrest for twelve counts of harassment. (Doc. 1, at ¶ 3). Ally alleges that he was placed on excessive bail of $10,000 and his Fourth, Thirteenth, and Fourteenth Amendment rights were violated. Ally also states that he was deprived of equal protection of the law, because he was not allowed to file charges against a white female, but she was allowed to file charges against him "in retaliation." (Doc. 1, at ¶ 3).
Ally brings his claims pursuant to 42 U.S.C. § 1983 and the Civil Rights Act of 1871, and the Ku Klux Klan Act. (Doc. 1, at ¶ 3). Ally seeks dismissal of the twelve charges of harassment pending against him in state court, citing violations of his rights under the Fourth, Thirteenth, and Fourteenth Amendments to the federal constitution. (Doc. 1, at ¶¶ 3-4). Ally challenges the validity of his arrest. (Doc. 1, at ¶¶ 3). He also requests the "Judges, detectives, [and] Karen Myers to be charged with rape, murder, [and] sex trafficking" and "[t]he detective, Mary Hottenstein to be charged with obstruction of justice, collusion." (Doc. 1, at ¶ 4). Additionally, Ally "would like to sue Karen Myers for [$] 3 million" for purchasing, raping, and harassing him. (Doc. 1, at ¶ 4).
The Civil Rights Act of 1871 was also known as the Ku Klux Klan Act, and its subparts were later codified at 42 U.S.C. §§ 1983, 1985, and 1986. Virginia v. Black, 538 U.S. 343, 353, 123 S. Ct. 1536, 1544, 155 L. Ed. 2d 535 (2003).
Ally provides a state court docket number, CR-0000441-2017, presided over by Hon. Judge Silcox. (Doc. 1-1, at ¶ 8). The state court docket reflects an "Active" Case Status. See Commonwealth v. Ally, No. MJ-09304-CR-0000441-2017 (Cumberland Cnty. Magis.); (Doc. 39-2, at 2). In evaluating a motion to dismiss, the Court may properly "consider matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case," in addition to the facts alleged in Ally's complaint. See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384-85 n.2 (3d Cir. 1994). Therefore, the Court will consider the state court docket to the extent it's relevant in resolving the instant motions to dismiss.
On February 8, 2019, the Judicial Defendants filed a motion to dismiss and brief in support. (Doc. 19); (Doc. 20). On February 14, 2019, Attorney Hollinger filed a motion to dismiss and brief in support. (Doc. 24); (Doc. 25). On March 15, 2019, Alden Myers and Karen Myers filed motions to dismiss and briefs in support (Doc. 33); (Doc. 34); (Doc. 35); (Doc. 36). On March 27, 2019, Ally filed one brief in opposition to these four motions to dismiss. (Doc. 37). On April 1, 2019, Detective Hottenstein filed a motion to dismiss and brief in support. (Doc. 38); (Doc. 39). To date, Ally has not submitted a brief in opposition to Detective Hottenstein's motion to dismiss.
In his brief in opposition to the motions to dismiss, Ally raises multiple new causes of action against the existing and additional defendants. (Doc. 37, at 1-4). A "'complaint may not be amended by the briefs in opposition to a motion to dismiss.'" Com. of Pa. ex rel. Zimmerman v. PepsiCo, Inc. 836 F. 2d 173, 181 (3d Cir. 1988) (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir.1984), cert. denied, 470 U.S. 1054 (1984)). The Court will not consider claims raised for the first time in his brief in opposition.
Local Rule 7.6 provides, in pertinent part:
Any party opposing any motion, other than a motion for summary judgment, shall file a brief in opposition within fourteen (14) days after service of the movant's brief, or, if a brief in support of the motion is not required under these rules, within seven (7) days after service of the motion. Any party who fails to comply with this rule shall be deemed not to oppose such motion.
Although Detective Hottenstein's motion may be deemed unopposed, a motion to dismiss under Rule 12(b)(6) should not be granted "without an analysis of the merits of the underlying complaint, notwithstanding local rules regarding the granting of unopposed motions." Ray v. Reed, 240 F. App'x 455, 456 (3d Cir. 2007) (citing Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991)).
These motions to dismiss are ripe for disposition.
II. DISCUSSION
A. LEGAL STANDARDS
The various defendants move to dismiss Ally's complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
1. Motion to Dismiss Pursuant to Rule 12(b)(1)
"Under Fed.R.Civ.P. 12(b)(1), a court must grant a motion to dismiss if it lacks subject-matter jurisdiction to hear a claim." In re Schering Plough Corp. Intron/Temodar Consumer Class Action, 678 F.3d 235, 243 (3d Cir. 2012). "When a motion under Rule 12 is based on more than one ground, the court should consider the 12(b)(1) challenge first because if it must dismiss the complaint for lack of subject matter jurisdiction, all other defenses and objections become moot." In re Corestates Trust Fee Litig., 837 F.Supp. 104, 105 (E.D. Pa. 1993), aff'd 39 F.3d 61 (3d Cir.1994).
"Federal courts are courts of limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). "They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree." Kokkonen, 511 U.S. at 377 (internal citations omitted). Federal courts may hear cases "in which a well-plead complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law." Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 28 (1983). Legal insufficiency of a claim generally does not eliminate a federal court's subject-matter jurisdiction. Growth Horizons, Inc. v. Delaware Cnty, Pa., 983 F.2d 1277, 1280 (3d Cir. 1993) (collecting cases).
Courts considering a jurisdiction-based dismissal have two standards in evaluating whether jurisdiction is proper, with the applicable standard determined by the nature of the challenge to jurisdiction itself. See Petruska v. Gannon Univ., 462 F.3d 294, 302 (3d Cir. 2006) (in reviewing a Motion to Dismiss pursuant to Rule 12(b)(1), this Court must distinguish between facial attacks and factual attacks to subject matter jurisdiction). "[J]urisdictional challenges take two forms: (1) parties may make a 'factual' attack, arguing that one or more of the pleading's factual allegations are untrue, removing the action from the court's jurisdiction; or (2) they may assert a 'facial' challenge, which assumes the veracity of the complaint's allegation but nonetheless argues that a claim is not within the court's jurisdiction." Corman v. Torres, 287 F. Supp. 3d 558, 566 (M.D. Pa. 2018) (citing Lincoln Benefit Life Co. v. AEI Life, LLC, 800 F. 3d 99, 105 (3d Cir. 2015)). If reviewing a factual attack, a court may consider evidence outside the pleadings. If a facial attack, a court "considers the allegations of the complaint and documents referenced therein and attached thereto in the light most favorable to the plaintiff." Gorton v. Air & Liquid Sys. Corp., 303 F. Supp. 3d 278, 289 (M.D. Pa. 2018) (citing Gould Electronics, Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000)).
2. Motion to Dismiss Pursuant to Rule 12(b)(6)
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). Rule 8 also requires a "showing that 'the pleader is entitled to relief, in order to give the defendant fair notice of what the...claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93-94 (2007); Phillips v. Cty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007)). To survive a motion to dismiss brought under Rule 12(b)(6), a complaint must contain "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. If a complaint fails to comply with the threshold pleading requirements of Rule 8, a defendant may move for its dismissal under Rule 12(b)(6) for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6); Sally-Harriet v. Northern Children Svcs. No.CV 17-4695, 2019 WL 1384275, at *3 (E.D. Pa. March 26, 2019) ("[a] motion under Rule 12(b)(6) tests the sufficiency of the complaint against the pleading requirements of Rule 8(a)").
The United States Court of Appeals for the Third Circuit has noted the evolving standards governing pleading practice in federal court, stating that:
Standards of pleading have been in the forefront of jurisprudence in recent years. Beginning with the Supreme Court's opinion in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), continuing with our opinion in Phillips v. County of Allegheny, 515 F.3d 224 (3d Cir. 2008)] and culminating recently with the Supreme Court's decision in Ashcroft v. Iqbal, 556 U.S. 662 (2009), pleading standards have seemingly shifted from simple notice pleading to a more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss.
Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).
In considering whether a complaint fails to state a claim upon which relief may be granted under Fed. R. Civ. P. 12(b)(6), the court must accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom are to be construed in the light most favorable to the plaintiff. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). However, a court "need not credit a complaint's bald assertions or legal conclusions when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (internal citations omitted). Additionally, a court need not assume that a plaintiff can prove facts that the plaintiff has not alleged. Assoc'd. Gen. Contractors of Cal. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).
Further, a plaintiff must provide some factual grounds for relief which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Accordingly, when ruling on a Rule 12(b)(6) motion, a trial court must assess whether a complaint states facts upon which relief can be granted, and should "begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Iqbal, 556 U.S. at 679. In addition to the facts alleged on the face of the complaint, the Court may also consider "documents incorporated into the complaint by reference, and matters of which a court may take judicial notice." Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
With the aforementioned standards in mind, a document filed pro se is "to be liberally construed." Estelle v. Gamble, 429 U.S. 97, 106 (1976). A pro se complaint, "however inartfully pleaded," must be held to "less stringent standards than formal pleadings drafted by lawyers" and can only be dismissed for failure to state a claim if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Nonetheless, pro se plaintiffs are still subject to the base pleading requirements of Rule 8. Rhett v. NJ State Superior Court, 260 F. App'x 513 (3d Cir. 2008).
B. CLAIMS BROUGHT UNDER 42 U.S.C. § 1983
Ally's complaint asserts federal civil rights claim(s) pursuant to 42 U.S.C. § 1983. Section 1983 provides a private cause of action with respect to violations of federal constitutional rights. The statute provides in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .
Section 1983 does not create substantive rights, but instead provides remedies for rights established elsewhere. City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985). To state a § 1983 claim, a plaintiff must demonstrate that the defendants, acting under color of state law, deprived the plaintiff of a right secured by the United States Constitution. Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995).
C. ATTEMPTS TO INITIATE CRIMINAL PROSECUTIONS
In his prayer for relief, Ally states "the detective, Mary Hottenstein, needs to be charged with obstruction of justice, collusion." (Doc. 1, at ¶ 4). He also requests the Court initiate criminal prosecutions against various other defendants, namely the "Judges, detectives, [and] Karen Myers to be charged with multiple rape[s], murder, [and] sex trafficking." (Doc. 1, at ¶ 4). Ally's attempts to initiate obstruction of justice and collusion charges against Detective Hottenstein or any other party do not give rise to a cause of action. "[A] private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another." Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973). Therefore, "a civil rights plaintiff may not seek relief in civil litigation in the form of an order directing the criminal prosecution of some third parties... civil plaintiffs lack standing to make such claims and... such relief simply is unavailable in a civil lawsuit." Gessner v. Dept. of Corr., No. 3:14-CV-111, 2014 WL 972290, at *6 (M.D. Pa. March 12, 2014) (collecting cases).The initiation of criminal prosecution against certain Defendants is relief which this Court cannot provide, and those claims should be dismissed.
D. CLAIMS AGAINST KAREN MYERS
Karen Myers asserts Ally's § 1983 claim against her should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6). (Doc. 35, at 1). Specifically, Karen Myers submits that Ally fails to allege she violated Ally's constitutional rights or acted under color of state law as required to state a claim under § 1983. (Doc. 36, at 4). See also Mark, 51 F.3d at 1141. To determine if private individual acts under color of state law, the Court looks to "'whether the state, through its agents or laws, has established a formal procedure or working relationship that drapes private actors with the power of the state.'" Simonson v. Hemlock Farms Cmty. Ass'n., No. 3:06cv2084, 2007 WL 136753, at *2 (M.D. Pa. January 16, 2007) (quoting Cruz v. Donnelly, 727 F.2d 79, 82 (3d Cir.1984)); (citing Robb v. City of Phila.,733 F.2d 286, 292 (3d Cir.1984).
Here, although he invokes various constitutional amendments, Ally does not mention Karen Meyers by name in the statement of claim section of his complaint. (Doc. 1, at ¶ 3). In his prayer for, Ally states that he "would like to sue Karen Myers for [$] 3 million" for purchasing, raping, and harassing him. (Doc. 1, at ¶ 4). Even when liberally construed, there is nothing in the complaint that would allow the Court to reasonably infer Karen Myers deprived Ally of the constitutional rights to which he cites. Further, even if Ally did sufficiently allege Karen Myers violated his Fourth, Thirteenth, or Fourteenth Amendment rights, he does not allege Karen Myers acted under color of state law. See Hemlock Farms, 2007 WL 136753, at *2. As such, the Court recommends granting Karen Myers's motion to dismiss.
E. CLAIMS AGAINST ALDEN MYERS
Alden Myers moves for dismissal of the claims against him, submitting that the complaint fails to state a claim against him, and that the court lacks subject matter jurisdiction over any action because no § 1983 action will lie against him. (Doc. 33). In his brief in opposition to Alden Myers's motion to dismiss, Ally states that he "would like to include [allegations against] Alden Myers as responsible for slavery of cousin Iman Jaisingh, and stalking when he entered the property of Plaintiffs [sic] great-grandmother, in November of 2011." (Doc. 37, at 3).
The complaint must "'give the defendant fair notice of what the ... claim is and the grounds upon which it rests.'" O'Malley v. Lukowich, No. 3:08-CV-0680, 2008 WL 4861477, at *2 (M.D. Pa. November 7, 2008) (quoting Erickson, 551 U.S. at 93)); see also Robinson v. Wheary, No. 1:16-CV-02222, 2017 WL 2152365, at *1-2 (M.D. Pa. May 17, 2017) (dismissing complaint pursuant to screening provisions of 28 U.S.C. § 1915(e)(2) where "the caption of the complaint names numerous individual defendants, [but] contains no well-pleaded factual averments relating to these specific defendants in the body of the complaint").
"The legal standard for dismissing a complaint for failure to state a claim pursuant to § 1915(e)(2)(B)(ii) is identical to the legal standard used when ruling on Rule 12(b)(6) motions. Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999) (applying FED. R. CIV. P. 12(b)(6) standard to dismissal for failure to state a claim under § 1915(e)(2)(B))." Smith v. Monroe Cnty. Corr. Facility, No. 3:18-cv-0739 2018 WL 2422997, at *1 (M.D. Pa. May 29, 2018).
Here, Alden Myers is included in the caption of the complaint, but there are no averments relating to him in the body of the complaint, and Ally may not use his brief opposing the motion to dismiss to raise new allegations for the first time. See Nesgoda, 2018 WL 6313617, at *2. Based on the above, the Court recommends granting Alden Myers's motion to dismiss.
F. CLAIMS AGAINST DETECTIVE HOTTENSTEIN
Detective Hottenstein moves for dismissal of Ally's claims against her for failure to state a claim and because she is entitled to qualified immunity. Specifically, Detective Hottenstein submits that Ally has failed to identify a violation of any federally protected right, and that he fails to state a false arrest claim. Before reaching the merits of this motion to dismiss, the Court considers whether the Younger doctrine requires abstention. In Younger v. Harris, the Supreme Court of the United States held that a federal court should abstain from interfering with a pending state criminal proceeding absent extraordinary circumstances. 401 U.S. 37, 41 (1971). See also Sprint Commc'ns, Inc. v. Jacobs, 571 U.S. 69, 77 (2013) (Younger abstention doctrine limited to state criminal and quasi-criminal proceedings); ACRA Turf Club, LLC v. Zanzuccki, 748 F.3d 127, 138 (3d Cir. 2014) (same). In order for a district court to abstain under Younger, three criteria must be met: "(1) ongoing state proceedings are judicial in nature; (2) the state proceedings implicate important state interests; and (3) the state proceedings provide an adequate opportunity to present federal claims." Dixon v. Kuhn, 257 F. App'x 553, 555 (3d Cir. 2007). But even if all three of these necessary predicates are present, Younger abstention is not appropriate when "(1) the state proceedings are being undertaken in bad faith or for the purposes of harassment or (2) some other extraordinary circumstances exist . . . such that deference to the state proceeding will present a significant and immediate potential for irreparable harm to the federal interests asserted." Schall v. Joyce, 885 F.2d 101, 106 (3d Cir. 1989).
The Court may raise the issue of Younger abstention sua sponte. O'Neill v. City of Phila., 32 F.3d 785, n.1 (3d Cir. 1994).
Because the criminal proceedings in state court against Ally remain active, the Court considers whether the Younger doctrine requires abstention. See Galloway v. Kane, No. 1:15-CV-1007, 2015 WL 3953112, at *1, 4-5 (M.D. Pa. June 29, 2015) (Younger abstention required where pro se plaintiff sued various state law enforcement officials for false arrest and malicious prosecution because ruling on those claims would require the Court to intervene in an ongoing state court criminal case). First, the criminal proceeding against Ally remains ongoing in the Cumberland County Magisterial District Court. See Commonwealth v. Ally, No. MJ-09304-CR-0000441-2017 (Cumberland Cnty. Magis.); (Doc. 39-2, at 2). Second, these criminal proceedings implicate the Commonwealth's important interest in bringing to justice those who violate its criminal laws. See Rex v. Fisher, No. 12-4045, 2012 WL 3537846, at *2 (E.D. Pa. August 15, 2012); Arndt v. Pennsylvania, No. 3:11-CV-856, 2011 WL 3876161, at *2 (M.D. Pa. August 31, 2011). The complaint fails to state a claim that Ally has not been and will not be afforded an adequate opportunity to raise his federal claims in state court. See Lazaridis v. Wehmer, 591 F.3d 666, 670-71 (3d Cir. 2010) (noting that the federal plaintiff bears the burden of showing that state procedural law barred presentation of federal claims in state court). Finally, the complaint does not allege any exception to the Younger doctrine applies such that it would be inappropriate for this Court to abstain. See Schall, supra.
In his opposing brief, Ally asserts his state court cases are "stayed." (Doc. 37, at 2). However, the state court docket reflects an "Active" Case Status. See Commonwealth v. Ally, No. MJ-09304-CR-0000441-2017 (Cumberland Cnty. Magis.); (Doc. 39-2, at 2).
Based on the above, the Court recommends finding that Younger abstention requires that Detective Hottenstein's motion to dismiss be granted.
Because the Court determines Younger requires abstention in this case, the Court does not reach the merits of Detective Hottenstein's alternative arguments for dismissing Ally's civil rights claims against here. See Spanier v. Kane, 34 F. Supp. 3d 524, 531 (M.D. Pa. July 25, 2014).
G. CLAIMS AGAINST ATTORNEY HOLLINGER
In moving to dismiss, Attorney Hollinger asserts that that she is not a state actor for purposes of § 1983. (Doc. 25, at 6). Specifically, as a public defender, Attorney Hollinger argues that she is not capable of being sued under this civil rights statute. To state a § 1983 claim, a plaintiff must demonstrate that the defendants, acting under color of state law, deprived the plaintiff of a right secured by the United States Constitution. Borough of Hatboro, 51 F.3d at 1141. In general, "a public defender does not act under color of state law when performing a lawyer's traditional functions as counsel to a defendant in a criminal proceeding." Polk County v. Dodson, 454 U.S. 312, 325 (1981).
There are no allegations against Attorney Hollinger in the body of the complaint, but state court docket shows she represented Ally in his ongoing criminal proceeding in Cumberland County. See Commonwealth v. Ally, No. MJ-09304-CR-0000441-2017 (Cumberland Cnty. Magis.); (Doc. 39-2, at 2). Based on Ally's lack of allegations against Attorney Hollinger, the Court cannot conclude she performed functions other than those traditional to a lawyer during her representation of Ally in his criminal proceeding. Ally has not alleged Attorney Hollinger acted under color of state law, and fails to state a claim against her pursuant to § 1983. See Polk County, 454 U.S. at 325. Based on the above, the Court recommends granting Attorney Hollinger's motion to dismiss.
H. CLAIMS AGAINST THE JUDICIAL DEFENDANTS
The Judicial Defendants move to dismiss the claims against them on the bases that any claims are barred by Eleventh Amendment immunity, judicial immunity, and the Rooker-Feldman and Younger doctrines. Ally alleges that the Judicial Defendants acted with malicious intent, and specifically that Judge Beckly issued excessive bail and Judge Silcox denied his suit filed against a private attorney, Kope. (Doc. 1, at ¶ 3); (Doc. 37, at 1).
Initially, the Court notes that Ally does not state whether he brings suit against the Judicial Defendants in their individual or official capacities. To the extent Ally seeks to hold the Judicial Defendants liable for acts taken in their official capacity, such claims are barred by the Eleventh Amendment. A suit against a state official in his or her official capacity is treated as a suit against the state itself. Kentucky v. Graham, 473 U.S. 159, 166 (1985). The Commonwealth of Pennsylvania has neither waived nor abrogated its Eleventh Amendment immunity with respect to federal civil rights actions. The Judicial Defendants are shielded from suit in their official capacities under the Eleventh Amendment.
The Judicial Defendants are also entitled to absolute immunity from suit. "A judicial officer in the performance of [her] duties has absolute immunity from suit and will not be liable for [her] judicial acts." Azubuko v. Royal, 443 F.3d 302, 303 (3d Cir. 2006) (per curiam). "[B]ail setting is within the exclusive domain of the courts and is therefore a judicial act." Yeaple v. Naylor, No. 1:CV-09-0163, 2009 WL 2588554, at *3 (M.D. Pa. August 21, 2009) (citing Lutz v. Lavelle, 809 F.Supp. 323, 327 (M.D.Pa.1991)). Further, "[a] judge will not be deprived of immunity because the action [s]he took was in error, was done maliciously, or was in excess of [her] authority; rather, [s]he will be subject to liability only when [s]he has acted in the 'clear absence of all jurisdiction.'" Stump v. Sparkman, 435 U.S. 349, 356-57 (1978) (quoting Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 351 (1871)); Pierson v. Ray, 386 U.S. 547, 554 (1967) ("This immunity applies even when the judge is accused of acting maliciously and corruptly . . . ."). Although the Supreme Court has acknowledged that the operation of judicial immunity may at times constitute unfairness to a wronged litigant, "it is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in [her], shall be free to act upon [her] own convictions, without apprehension of personal consequences to [her]self.'" Mireles v. Waco, 502 U.S. 9, 12 (1991) (per curiam) (quoting Bradley, 80 U.S. (13 Wall.) at 347). Accordingly, "[t]he doctrine of judicial immunity bars suit against a judicial officer based on rulings made during the course of civil and criminal proceedings." Wilkins v. Kleinfelter, No. 4:CV-06-14, 2006 WL 208806, at *2 (M.D. Pa. January 26, 2006) (citing Figueroa v. Blackburn, 208 F.3d 435, 440-41 (3d Cir.2000)).
Judge Beckly is immune from suit regarding her decision to set bail in the state court criminal matter. See Azubuko, 443 F.3d at 303; Yeaple, 2009 WL 2588554, at *3. Judge Silcox is immune from suit regarding her ruling to deny Ally's state court action against a private attorney. See Wilkins, 2006 WL 208806, at *2. Even if the Judicial Defendants acted maliciously, they are immune from suit. See Stump, 435 U.S. at 356-57. Ally has failed to allege that either Defendant acted in the clear absence of jurisdiction. See Stump, 435 U.S. at 356-57. Based on the above, the Court recommends dismissal of all claims against the Judicial Defendants. See Tarapchak v. Lackawanna County, 173 F. Supp. 3d 57, 71 (M.D. Pa. 2016) (dismissing plaintiff's civil rights claims with prejudice against Judges and other defendants which alleged the named parties conspired to ensure her criminal conviction).
Because the Court determines the Judicial Defendants are immune from suit, it does not reach any other bases for dismissal of the claims against them, including whether the Rooker-Feldman or Younger doctrines apply.
I. CLAIMS AGAINST SHANE KOPE
Finally, the Court addresses the claims against Defendant Kope. Despite being named in the caption of the complaint, Kope was never served with the complaint by Ally, and has not submitted a motion to dismiss the complaint. Rule 4(m) provides "[i]f a defendant is not served within 90 days after the complaint is filed, the court--on motion or on its own after notice to the plaintiff--must dismiss the action without prejudice against that defendant or order that service be made within a specified time." Fed. R. Civ. P. 4(m). Moreover, "[p]laintiff, the party responsible for effecting service, has the burden of proof to demonstrate validity of service." Rice v. Sniezek, No. 1:10-CV-2636, 2012 WL 4069758, at *1 n. 2 (M.D. Pa. September 17, 2012) (citing Grand Entm't Group, Ltd. v. Star Media Sales, Inc., 988 F.2d 476, 488 (3d Cir.1993)). The Court previously advised Ally regarding his responsibility to provide "the complete name and address for each and every defendant named in the complaint in order to effect proper service" and warned Ally that his failure to provide this information could result in dismissal of his claims against that defendant pursuant to Fed. R. Civ. P. 4(m). (Doc. 8, at ¶ 2). Ally has not met his burden, or even attempted to demonstrate that he did effect service on Kope. See Rice, 2012 WL 4069758, at *1. Ally has not properly served Kope despite the passage of more than fourteen months since Ally filed this action. As such, the Court recommends Kope be dismissed from this action.
Moreover, although Ally names Kope in the caption of the complaint, with "attorney malpractice" set off by parenthesis, he makes no allegations against Kope, and Ally may not use his brief in opposition to raise allegations against Kope for the first time. See Zimmerman, 836 F.2d at 181. Even if Ally were to properly serve Kope, , Kope would be entitled to dismissal from this action. See Coulter v. Unknown Prob. Officer, 562 F. App'x 87, 89 (3d Cir. 2014) (affirming district court's sua sponte dismissal of non-moving defendant where the grounds raised by the moving defendants were common to all defendants and the plaintiff had an opportunity to respond to the moving defendants' arguments). See also Silverstein v. Percudani, 422 F. Supp. 2d 468, 473 (M.D. Pa. 2006) (collecting cases recognizing a federal court's power to sua sponte dismiss claims against non-moving defendants where those claims suffer from the same defects raised in the moving defendants' motion to dismiss).
J. REMAINING STATE LAW CLAIMS
To the extent any Ally asserts any state law claims, it is recommended that the Court decline to exercise supplemental jurisdiction over those claims. Where a district court has dismissed all claims over which it had original jurisdiction, the Court may decline to exercise supplemental jurisdiction over state law claims. 28 U.S.C. § 1367(c)(3). Whether the Court will exercise supplemental jurisdiction is within its discretion. Kach v. Hose, 589 F.3d 626, 650 (3d Cir.2009). That decision should be based on "the values of judicial economy, convenience, fairness, and comity." Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988). Ordinarily, when all federal law claims have been dismissed and only state law claims remain, the balance of these factors indicates that these remaining claims properly belong in state court. Cohill, 484 U.S. at 350. Finding nothing in the record to distinguish this case from the ordinary one, the balance of factors in this case "point[s] toward declining to exercise jurisdiction over the remaining state law claims." See Cohill, 484 U.S. at 350 n. 7. Therefore, it is recommended that the Plaintiff's state law claims be dismissed without prejudice pursuant to 28 U.S.C. § 1367(c)(3).
K. LEAVE TO AMEND
The Third Circuit has instructed that if a complaint is vulnerable to dismissal for failure to state a claim, the district court must permit a curative amendment, unless an amendment would be inequitable or futile. Grayson v. Mayview State Hosp, 293 F.3d 103, 108 (3d Cir. 2002). However, "[a] district court has 'substantial leeway in deciding whether to grant leave to amend.'" In re Avandia Mktg., Sales Practices & Products Liab. Litig., 564 F. App'x 672, 673 (3d Cir. 2014) (not precedential) (quoting Lake v. Arnold, 232 F.3d 360, 373 (3d Cir. 2000)). See also Yi v. Snyder, No. 1:17-cv-0083, 2017 WL 264453, at *1 (M.D. Pa. January 20, 2017) (denying leave to amend complaint alleging ethnic and racial discrimination, because "the grounds in the complaint are unsubstantial, attenuated, and obviously frivolous").
The allegations in Allen's complaint are unsubstantial, attenuated, and frivolous, and as such the Court recommends dismissal without leave to amend. See Yi, 2017 WL 264453, at *1. Further amendment would be futile with regard to the following claims:
1. All claims attempting to initiate criminal prosecution against various individuals;III. RECOMMENDATION
2. All potential claims against Defendants named in the caption of the complaint but not mentioned in the body of the complaint;
3. All § 1983 claims against Karen Meyers, as she is not a state actor;
4. All § 1983 claims against Detective Hottenstein, as the state court criminal proceedings related to the claims against Detective Hottenstein remain ongoing; and
5. All § 1983 claims against the Judicial Defendants, as barred by either judicial immunity or the Eleventh Amendment.
Based on the foregoing, the Court recommends granting the pending motions to dismiss (Doc. 19; Doc. 24; Doc. 33; Doc. 35; and Doc. 38), dismissing any remaining state law claims pursuant to 28 U.S.C. § 1367(c)(3), and directing the Clerk of Court to close this case.
Dated: June 27, 2019
/s/ _________
KAROLINE MEHALCHICK
United States Magistrate Judge NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated June 27, 2019.
Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Dated: June 27, 2019
/s/ _________
KAROLINE MEHALCHICK
United States Magistrate Judge